Valery Zinchenko, Legalized Harassment? Ekho Moskvy, 21 November 2018
Lately, the domestic public environment has been excited by harassment. Charges are poured, victims share stories, someone justifies, while someone cannot. Someone is even fired. Everything is almost classically: scandals, intrigues and so on. While to investigate incidents in the criminal law doctrine has stopped short of. One gets the impression that this phenomenon, called a formidable and frightening foreign word, is merely unnoticeable for our criminal doctrine. Let us find out if there is room for harassment in Russian criminal law.
The doctrine of sexual harassment was born in the United States and defined as obscene sentences, requests for sexual services and other verbal and non-verbal sexual behavior in working relationships.
The foundations for creating a relevant regulatory framework were established by the Civil Rights Act of 1964.
The European Union looks through a broader lens and extends the terminology to ‘any form of undesirable verbal, non-verbal or physical behavior of a sexual nature, aimed at or resulted in violation of an individual’s right to dignity, in particular, the creation of a threatening, hostile, destructive, degrading or offensive situation’.
Barnes v. Train's first sexual harassment case was examined by the US District court of Columbia in 1974. The girl was dismissed for denying sexual intimacy to the manager. The former employee received compensation in the amount of 18 thousand US dollars.
It is obvious that the last sensational manifestations of the ‘Russian harassment’, for example, the ‘Medusa’ case, could receive an unequivocal assessment under US law, and the subjects of the incident would receive stiff sentence. For example, in California and New York, a similar case may be entail up to a year in prison. Not to mention the fines imposed on an employer up to 300 thousand dollars and the right of the victim to file a lawsuit against the violator, which amount is unlimited and can reach dozens of millions dollars.
In this country, everything is different for now. Let us examine the same case from the perspective of the Russian criminal law. Suppose, indeed, at a corporate party a certain mass-media editor who treated the wife of his subordinate more than frivolously. In the absence of a standard of criminal law for harassment, the arsenal of remedies available to the victim is more than poor.
A criminal statute (Article 136) provides for liability for gender-based discrimination by taking advantage of official status. Our example falls out of that standard. Since there is no working relationship, there is no abuse of office.
Forcing sexual behavior is also punishable by law. However, Article 133 of the Criminal Code does not qualify harassment, touches and other vulgar ‘signs of attention’ as ‘sexual violence’.
In other words, true criminal prosecution of the offender in this case is hopeless. Like most other, even more egregious episodes of harassment. Today, this practice is unknown for Russia.
How to solve the problem of harassment in the real environment in the complete absence of the legal framework.
The first way is to adjust the law according to the Western model. For example, in France, there is an article on prosecution of a person that may affect rights and dignity, impair physical or mental health, or jeopardize his professional future of an individual.
The second way is to adjust domestic law enforcement practice. For example, through special explanations given by the Supreme Court, which treat harassment, in particular, in the workplace as a crime.
However, none of these paths will have any effect unless a level of intolerant attitudes towards harassment is clearly formed in society.
Qualifying harassment as a crime should be supported by society.
We may provide a number of examples when penal prohibition does not work because of public tolerance for a problem.
Thus, until recently, responsibility for the violation of intellectual rights was practically not applied. Although almost everyone had unlicensed software at home, and even courts and law enforcement agencies widely practiced illegal use of computer programs. In our minds, these violations were simply not considered worthy of attention or condemnation. Tax evasion is treated alike.
So, the ‘harassment’ first of all should be recognized by the society as a topical issue that needs proper legal resolution. It is only then that the criminal-law remedies will take effect.
For this, of course, we need our own Barnes vs Train case. A landmark case, which, on the one hand, will encourage victims of harassment, and on the other hand, will give the Russian judicial system an example of the correct solution of this issue. While lawyers – I am sure – will be happy to join in protecting the rights of the victim.
Valery Zinchenko, advocate, managing partner of Pen & Paper Attorneys-at-Law.