28.02.2023 | News
A legislative amendment that came into force on 1 January 2023 made sexual harassment more broadly punishable.
The current amendment to the provisions of the Criminal Code somewhat help to establish what is appropriate. Previously, punishable acts of sexual harassment only concerned physical acts, e.g., touching. Current legislation extends punishability to verbal expressions and the sending of messages as well as other actions that, due to their severity and repetition, can be considered comparable to touching. Earlier, these types of actions may have been regarded as defamation and were, therefore, punishable as such, but now the situation is clearer from the victim’s perspective.
The other purpose of the amendment is to change attitudes and, thereby, behaviours. The Government proposal emphasised, however, that the regulation is not seeking to pursue morality or uniform sexual behaviour. The proposal recognises that human sexual behaviour can be diverse and informal. For this reason, the right of sexual self-determination plays an essential role in assessing punishability.
One condition for determining an act as punishable is whether or not the act is conducive to the violation of another person’s right of sexual self-determination. Whether or not the subject feels that their sexual self-determination has been violated is not a condition; such violations must be a typical consequence of the act in question. For a sexual act to be punishable, it must be directed at a specific person.
The impact on conditions within the workplace is significant in terms of criminal law. In relationships between co-workers in different positions or between a supervisor and employee, an act may easily be deemed as a violation of sexual self-determination. Penal provisions concerning work discrimination and occupational safety violations may also apply to harassment in the workplace.
Sexual harassment, in the legal sense, is not necessarily done for the purpose of arousing the offender. The purpose of sexual harassment may be, for example, to gain power over a person or in relation to others, or to demean or humiliate a person. The defence that the offender did not even find another person attractive is not relevant.
It should be borne in mind that, for example, mutual light flirting is not considered to be sexual harassment. Comments such as “I wouldn’t mind being harassed too” are best left in the past. In order for a crime to be considered sexual harassment, there must be a victim.
The legislative materials contain possible examples of punishable verbal sexual harassment: following another person while suggesting sexual intercourse or otherwise attempting to persuade another person in the same workplace to engage in sexual intercourse; proposing in a public area that another person might engage in sexual intercourse with them for payment; making an unjustified inquiry about another’s sexual life; commenting in a public area on the external characteristics of another person, especially sexually relevant parts of the body, in such a way that the person is meant to hear. This list is in no way exhaustive.
Of all sexual offences, sexual harassment will continue to be the one with the least severe punishment. If another penal provision concerning sexual offences applies to the offence in question, that provision will be primarily applicable. The punishment for sexual harassment can be a fine or imprisonment for up to six months.
Employers have an obligation to intervene in sexual harassment within the workplace, whether it is a punishable crime or not. It is also vital for workplaces to define and discuss appropriate and inappropriate behaviour. A company that started out small may expand quickly over the years and the company culture may not necessarily change as rapidly as it should. Something the company founders considered fun and energising ten years ago may be viewed as stuffy or even as harassment or discrimination by the next generation.
Another problem may also be the general labelling of those who raise issues as being uptight with no sense of humour. If everyone else is silent or laughs uneasily, nothing will ever change. For this reason, company management must raise awareness of this issue and actively seek to bring about a genuine change in the work cluture. While the majority of these issues will still remain outside the scope of punishability, the new regulations reflect the modern attitudes taking hold in the 2020s.
Will this legislative reform reduce sexual harassment in the workplace? Minister of Justice Henriksson summed it up well by stating that the legislative reform shows that a change in attitude is necessary: “This definitely also provides clarity. Each person needs to consider their own behaviour, the way they approach others and how they speak and behave toward them.”
One general aim of criminal law is to serve as a deterrent and prevent crimes. In the workplace, people are of course expected to do more than avoid crimes; they are expected to have good manners - appropriate behaving also complies with the law.
Often, discussions on this matter generate these types of comments: “You can’t say anything nowadays”, and people may think they are no longer allowed to compliment others. This is not the case, however – it is easy enough to differentiate between friendly and inappropriate comments. If, however, someone overreacts to a polite compliment, the compliment is still not considered a crime. According to the legislative materials, the assessment is based on how, within the conditions in question, one would generally be assumed to react to such an act. Compliments and friendly words are, therefore, still permitted and even considered advisable behaviour in the workplace.
Sirpa Leppäluoto Labour Market Director YTY - Association for Managers and Professionals
Illustration: Adobe Stock The article has been published on YTY membership magazine 1/2023
Can inappropriate behaviour be considered valid grounds for the termination of an employment relationship? Employment related legal services at YTY