Sexual assault and sexual harassment are not the same thing
“Harassment—bullying—degrades the subject’s quality of life, messes with their head…”
In his Jan. 11 Legal Ease column, Sex and Consent, James Morton said, “there has been an explosion of stories in the media about sexual assault and sexual harassment in the workplace, schools and other organizations.”
However, his column discussed only the crime of sexual assault, which may give some readers the completely false impression that sexual harassment is just a nice name for sexual assault.
Sexual assault and sexual harassment are not the same thing. Sexual assault is a crime and relatively rare. Sexual harassment, on the other hand, is near-universal.
Mr. Morton also said: “If consented to, sexual activity is lawful and proper.” In terms of defending a criminal allegation of sexual assault, that is true.
But in the workplace, schools and other organizations, that statement is dangerously false.
Let’s start with the dictionary definitions. “Harass” means to persistently annoy or bother someone. Harassment is the name of that behaviour.
Harassment occurs whenever somebody persists in bothering or tormenting somebody else. Basically, harassment is bullying.
Harassment does not need to be sexual to be inappropriate. Sexual harassment—pestering of a sexual nature—is so common it eclipses every other kind of workplace bullying, but it is still harassment: persistently annoying or tormenting somebody.
Assault, sexual or otherwise, is an event, and each one is a criminal act attracting its own criminal charge.
Harassment is not a single event, by definition. To the men who are afraid that they will be accused of sexual harassment for “flirting” or “compliments,” that is the answer: if somebody objects to your behaviour, stop doing it. It’s only harassment if you keep doing it.
Workplace policies on sexual harassment do not just boil down to “no raping allowed.” Sexual assault and sexual harassment are not the same thing.
But all harassment is serious. Harassment—bullying—degrades the subject’s quality of life, messes with their head, reduces their ability to do whatever it is they are there to do—in the workplace, work, in school, study, and so on.
It also interferes with the mission of the workplace, school or other organization, because the person being harassed has to spend time and energy fighting off the bad conduct, going out of their way to avoid it, or working hard to ignore it.
In any situation where one person has power over another, true sexual consent is not possible.
Mr. Morton accurately stated that a drunk person or a person under the age of 16 cannot truly consent to sex.
He did not need to point out that a drunk person or a 14-year-old can in fact physically say “yes”; it’s just that their “yes” isn’t true consent, because true consent is fully informed and freely given.
There are many situations in which a person can physically say “yes” but their consent is not freely given: whenever the person they are saying it to has power over them, like whether they get a pay increase or time off at Christmas, or whether they get the marks they need to graduate.
Because the criminal law gives an accused every possible benefit, it is extremely hard to prove a criminal charge against a teacher or a boss who exploits that power—that is, it is extremely hard to send somebody to prison for it (and it should always be hard to send anybody to prison).
But that doesn’t mean it’s OK. Sexual activity between a person and somebody they have power over is an abuse of that power, and in workplaces and schools that have decent sexual harassment policies, it is forbidden.
Margaret Hollis is a lawyer who serves Nunavut institutions and businesses, and who writes sexual harassment policies.