International instruments define sexual harassment as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating, or offensive environment.
To fully understand the meaning of the given definition, it’s best to divide it into several sub-elements and analyze them individually.
Sexual harassment is an offence against the dignity of a person
Sexual harassment is defined as a violation of a person’s dignity.
The concept of human dignity is recognized in legal systems worldwide. Although it’s mentioned in numerous national and international documents and judgments, the concept is rarely defined. Even the leading legal institutions (European Court of Human Rights, European Court of Justice, national supreme courts) use the term without giving a concrete definition.
It should be noted, however, that definitions of dignity are deliberately avoided in order to ensure the broadest possible understanding of the term and to avoid imposing limits on the concept, which would be the basic task of a definition. The same approach should be taken in this conceptual model. The statement in the Universal Declaration of Human Rights that „all human beings are born free and equal in dignity and rights” could be sufficient to provide a general understanding of the concept.
First, dignity is an innate and not a socially acquired quality of every human being. Nor can it be lost by anyone. Therefore, dignity belongs to each of us, both those who are held in dignity by others and those who aren’t. This means that anyone can be a victim of sexual harassment, regardless of their social status, moral character or ethical behavior.
Secondly, we’re all equal in dignity. This means that the dignity of any human being cannot be higher or lower than the dignity of any other human being. It simply cannot be measured or compared. So the dignity of a person can only be judged by the person himself. No external actor can blame the victim and claim that he or she overreacted.
Peter meets Jessica and offers her his hand to shake. Jessica sees her dignity violated by Peter because she comes from a culture in which any touching of a woman by a man is considered to have sexual connotations. There is no way Peter could have foreseen such a reaction from Jessica, but it cannot be said that Jessica overreacted. However, Peter’s behavior can only be called sexual harassment if his culpability in it’s established, i.e. if he neither intended nor could foresee a violation of Jessica’s dignity.
However, if you see another person treating a person in a way that in no way corresponds to your understanding of dignity, and the person whose dignity you consider to be violated accepts such treatment, you’re still not in a position to judge the dignity of the alleged victim. Such an attitude would mean blaming the alleged victim for not having „proper dignity”, and no one can judge another person’s understanding of personal dignity.
John sees Peter introducing himself to Jessica by patting her on the backside. John also sees that Jessica agrees and enters into a conversation with Peter. John’s attempt to explain to Peter that it’s an inappropriate way to introduce himself would also blame Jessica for her „underreaction” and could offend her dignity.
In situations like the one described above, however, one might feel pity for the supposed victim and feel an inner incentive to intervene. Even for those who aren’t the direct target of an action, that action may violate their dignity. Even if a person we believe to be a victim of sexual harassment doesn’t feel that their dignity has been violated, we may feel that our dignity has been violated.
There are, however, cases in which we can decide on the dignity of another person. These are cases where the alleged victim of sexual harassment isn’t in a position to judge the violation of his or her dignity. This usually happens when the alleged victim doesn’t notice a certain behavior of the alleged perpetrator or is under the influence of certain substances that make it impossible for him or her to properly understand the behavior in question.
Jessica had drunk too much champagne and fell asleep at the bar. Peter, who was sitting next to her, took advantage of the situation and started touching Jessica’s body. Arnold, who was sitting next to Jessica, felt insulted by Jessica and intervened. After Jessica woke up, no one told her what happened. Nevertheless, Peter’s behavior violated Jessica’s dignity in Arnold’s eyes and could be considered sexual harassment of Jessica.
Sexual harassment as a conduct of sexual nature
Behavior should be considered sexual if it expresses a desire to engage in a sexual act with a person, satisfies the sexual desire of the perpetrator, or can be seen/interpreted (even falsely) as such.
It should be noted that behavior of a sexual nature can be verbal.
Peter meets Jessica in a pub and after a short conversation, he goes out to smoke a cigarette and asks Jessica not to leave without him. Jessica understands this saying as an expression for leaving the pub together and then performing a sexual act. She feels insulted. Peter explains that he enjoyed talking to Jessica and just wanted to talk to her more. It’s up to Jessica to decide whether she accepts Peter’s explanation or remains offended. However, Peter’s behavior can only be called sexual harassment if his guilt in it’s established, i.e. if he neither intended nor could have foreseen a violation of Jessica’s dignity.
The conduct of sexual nature can be physical.
The behaviour of a sexual nature can be physical. Peter is standing next to Jessica at the bar and touches Jessica’s breast with his elbow every time when he reaches for a drink. Jessica is offended. Peter explains that he didn’t realize he was touching Jessica. Jessica has to decide whether to accept Peter’s explanation or remain offended. In the latter case, Peter’s behavior could be considered sexual harassment if it’s proven that he was guilty of it, i.e. if he intended or could have foreseen a violation of Jessica’s dignity.
In the latter case, consider that Jessica’s dignity may suffer even if Peter’s behavior doesn’t actually have anything to do with his sexual desire (e.g. because Peter is gay). Jessica might not know about Peter’s sexual orientation or choose not to believe his explanation. And even if she does, she might feel her dignity violated in the eyes of the other customers of the pub who have no information about Peter’s sexual orientation.
In some cases, the omission of an act can also be considered sexual harassment.
Peter is standing at the bar. Jessica takes a seat in front of him and Peter notices that from his position Jessica’s breasts are visible in her décoltée. Peter doesn’t do anything about it and his gaze occasionally falls on Jessica’s chest, if only by chance. After Jessica notices what is going on, she feels offended. However, Peter’s behaviour can only be called sexual harassment if his guilt in it’s established, i.e. if he neither intended nor foresaw the violation of Jessica’s dignity.
Conduct of a sexual nature as an element of sexual harassment shall be discerned from conduct related to the sex (gender) of a victim, based on a negative (potentially discriminatory) perception of a certain gender, e.g., jokes with a connotation that blonde women are stupid, statements that being gay is a form of illness, or remarks that men shall not be provided maternity leave because they are biologically unfit to take care of a child. Such a behaviour is considered harassment, however not a sexual harassment.
Conduct of a sexual nature as an element of sexual harassment is to be distinguished from conduct that relates to a victim’s sex (gender) and is based on a negative (potentially discriminatory) perception of a particular sex, e.g. jokes with the connotation that blonde women are stupid, statements that being gay is a form of illness or remarks that men shouldn’t be given maternity leave because they’re biologically incapable of caring for a child. Such behavior is considered harassment, but not sexual harassment.
Sexual harassment as an unwanted conduct
The criminalization of sexual harassment does not mean that every act of sexual nature is prohibited. We may think of flirting, for example. People like to flirt. Many people go out to flirt. For some nightlife without flirting is like cycling with flat tires. And there is nothing wrong with flirting. What shall however be kept in mind is that every attempt to flirt with another person becomes sexual harassment if the latter person doesn’t want to flirt.
The victim is not required to express his or her unwantedness in a certain way. Every conduct of another person towards another should count as unwanted until expression of willingness to engage in communication with him or her.
Peter sees Jessica in a pub and likes the way she lo0ks. He tries to catch her eye. However, when their glances meet, Jessica avoids eye contact with Peter. This does not stop Peter and he buys her a drink. Peter’s conduct will count as sexual harassment if he understands that Jessica sees his acts as unwanted. It would however be different if Peter thinks that Jessica has not noticed him. In the latter case Peter’s conduct would count as sexual harassment if his guilt for it is established, i.e., he has intended or has foreseen a harm to Jessica’s dignity.
We shall clearly state that the lack of consent equals a “no” as an answer. And “no” will remain no and a rejection until a clear “yes” is given as an answer.
Peter sees Jessica in a pub, likes the way she lo0ks and sends her a drink. Jessica thanks Peter, however, declines the drink saying that she does not accept drinks from people she does not know. Peter interprets her reaction as an invitation to flirt and proposes to get to know each other better, so, afterwards, according to Peter’s assumption Jessica will surely accept a drink from him. However, Peter’s conduct cannot be called a sexual harassment until his guilt for it is established, i.e., if he neither intended nor foresaw a harm to Jessica’s dignity.
Sometimes willingness to flirt may occur even after sexual harassment took place. No victim is required to abstain from a person who has harmed him or her. It is their decision that they cannot be blamed for. However, what is more important is that willingness to flirt may disappear every moment, as each party can freely change their mind. However, if one party keeps on insisting, despite it might be considered sexual harassment.
Peter meets Jessica in a pub and engages into conversation telling compliments of a sexual nature that Jessica likes. However, after some time Peter starts telling Jessica dirty jokes. Such a conduct would count as sexual harassment if Jessica does not like that. Even if Peter excuses for his jokes and turns back to compliments, but Jessica do not like them anymore. Peter’s compliments now could count as sexual harassment if his guilt for it is established, i.e., if he either intends or foresees a harm to Jessica’s dignity.
Surely, every attempt to flirt starts not knowing whether another person wants to flirt or not. Thus, technically speaking every attempt is “unwanted”. A rule that flirting is allowed only when another person expresses willingness to flirt would eliminate flirting altogether and would not be acceptable. There are however many ways to start flirting in an unoffensive manner. It might be the case that even neutral behaviour can offend the dignity of a person. In any case he or she is the one to decide whether his or her dignity was harmed. However, as it was already mentioned, not every harm of personal dignity account for a sexual harassment. The guilt of a harasser shall be established for his conduct to count as sexual harassment.
Peter meets Jessica and offers his hand for a handshake. Jessica considers her dignity harmed by Peter because she comes from a culture where every touch of a woman by a man is considered to have sexual meaning. It would not count as sexual harassment even if conduct of Peter was unwanted – Peter could not foresee that. However, if Peter insists having a handshake with Jessica even after she refuses (she is not obliged to give any explanations why), the conduct of Peter could be considered sexual harassment, even if he does not see any connotation between a handshake and sexual harassment. It would be enough that Jessica understands Peter’s behaviour as being of a sexual nature.
Sexual harassment as a conduct that occurs, with the purpose or effect of violating the dignity of a person
Not every violation of dignity would count as sexual harassment, even if the conduct in question had clear connotations of sexual desires.
Violation of dignity is intended when a person understands that the dignity of another person will be harmed by certain behavior and intentionally wants it to be harmed. However, these cases are more often considered to be harassment due to the sex of the victim and not sexual harassment.
Peter likes Jessica’s look and tries to flirt with her, but Jessica refuses. Peter slaps Jessica’s bottom. If he does that to feel the sexual pleasure of touching Jessica, his conduct will count as sexual harassment. If he does that to show his “superiority” to Jessica it is harassment due to sex.
In most cases, harassers do not admit the purpose to harm the dignity of the victim to be present. The laws do not require the purpose and intent to be proved for an act to be called sexual harassment. It is enough that the conduct in question harmed the dignity of the victim. Sexual harassment usually occurs when a supposed offender is aware of the fact that there is a chance that his or her conduct of sexual nature will be unwanted and takes the risk, or, alternatively, ignores these risks.
Peter likes Jessica’s look, approaches her, and touches her hair. Jessica feels offended. Peter does not expect Jessica to get offended because he acts the same way every time when he meets a girl he likes in this pub. Peter’s act shall count as sexual harassment.
Technically the legal definition of sexual harassment acknowledges that every act harming the dignity of a victim shall count as sexual harassment even if the harasser did not expect the victim to count his or her act as harming his or her dignity. It is enough that the conduct has a harmful effect on dignity. It shall be noted that the Istanbul Convention specifically discerns sexual harassment by establishing that all other acts mentioned in the convention shall be criminalized when they are intentional, except sexual harassment, which shall be either criminalized or otherwise sanctioned even when no intent was present, the harmful effect is sufficient. However, even accepting such an approach we shall admit that no one can be held liable for effects that were not foreseen and were not foreseeable.
Peter meets Jessica and offers his hand for a handshake. Jessica considers her dignity harmed by Peter because she comes from a culture where every touch of a woman by a man is considered to have sexual meaning. It would however not count as sexual harassment even if the conduct of Peter – Peter could not foresee the effect of violation of Jessica’s dignity. However, if Peter insists on having a handshake with Jessica even after she refuses (she is not obliged to give any explanations why), the act of Peter would be considered sexual harassment, even if he does not see any links between a handshake and a sexual desire.
Creating intimidating, hostile, degrading, humiliating or offensive environment
This constitutive element of the definition of sexual harassment receives the most attention in literature and jurisprudence, however, will not be discussed in this model. These words are more related to sexual harassment taking place in labor relations and other spheres where harassment is based on the authority that harassers possess over the harassed. However, what is important to note is that the definition we have discussed here does not require any environment to be created for a supposed victim of harm to his or her dignity to count as sexual harassment. The definition states that the creation of such an environment would be particularly considered as a contextual element favourable to sexual harassment. Nevertheless, every other conduct that has all the constitutive elements presented above would count as sexual harassment even if it occurs in an otherwise friendly and welcoming environment.