Sexual harassment

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Survey on the topic of sexual harassment in Germany by gender

Sexual harassment is a criminal offense and, among other things, a means of exercising power in which power imbalances or dependency relationships are unilaterally sexualized and thus maintained.

In terms of content, sexual harassment is specific, sexually determined behavior that is undesirable and that makes a person feel uncomfortable and injured in their dignity . Sexual harassment includes , among other things, sexualizing remarks and actions that have a degrading or shameful effect, undesired physical approach, approaches in connection with promises of rewards and / or threats of reprisals . Men and women largely agree on the distinction between appropriate erotic approach (flirting) and sexual harassment.

Sexual harassment belongs to the “wide range of individual phenomena” that are summarized under the “ umbrella term ” of sexism . In everyday language , the terms “sexual harassment” and “sexism” are often incorrectly used as synonymous .

Women (28–58%, depending on the survey) are much more likely to be victims of sexual harassment than men (approx. 10%). Regardless of the sex of the victim, the perpetrators are mostly single men, groups of men, mixed-sex groups and only rarely women. In the public debate, however, the effect of the perpetrator-victim reversal often gives rise to the image that men and women are equally victims and perpetrators.

Sexual harassment is considered discrimination in most western countries and is illegal under labor law , among other things . It is to be distinguished from sexual abuse and physical violence, which in turn constitute criminal offenses.

Occurrence

Sexual harassment can occur in all situations. Often it takes place in dependency relationships such as at work, in the educational sector or in the context of a medical care relationship.

Sexual assault in the world of work

Johann Michael Neder, Im Gasthof, 1833, Germanisches Nationalmuseum in Nuremberg

A study carried out in Switzerland in 2007 showed that 28 percent of the women and 10 percent of the men questioned had felt sexually harassed or disturbed by their behavior in the course of their previous working lives. Three-quarters of cases of harassing situations for women came from men (mostly from individual men, sometimes from groups of men). Women have also often reported harassing behavior by mixed groups (men and women) and rarely of harassing behavior by women. Men stated that around half of the harassing situations came from men (individually or in groups), around a quarter from women and a further quarter from mixed groups. First and foremost, it is work colleagues who behave in a harassing manner. In many cases it is also the customers. In third place are the superiors. Women were much more likely than men to report harassing behavior by their superiors. Men, on the other hand, referred more often than women to harassing behavior by subordinates.

According to a study carried out on behalf of the European Commission , around 40 to 50% of female and around 10% of male workers have been the target of sexual harassment.

The sexual harassment of freelance men and women by clients or investors is still unexplored and very little anchored in social discourse. In the absence of a job regulated by labor law and the associated protection options, the offenses against freelancers ultimately resulted in a systematic disadvantage of the victims up to their complete exclusion from the group of contractors; This is the conclusion reached by the American lawyer and journalist Wendy Kaminer. In 2017, a larger group of women start-up entrepreneurs from Silicon Valley reported sexual harassment from investors in the New York Times .

Sexual assault in school and sports

Sexual assaults (sexual harassment, sexualised violence or even sexual abuse of children and young people ) can occur in schools and sports clubs . The term sexual harassment may be broadly defined. For example, the supplementary guidelines for schools in the city of Bremen on the prohibition of sexual harassment and violence against children and young people from March 8, 2013 classify not only  actions defined in accordance with Section 3 (4) AGG, but also other actions as sexual harassment a:

  • "Suggestive didactic and methodical use of teaching materials,
  • unnecessary physical contact , especially in physical education classes ,
  • tolerating the use or dissemination of sexist representations of all kinds,
  • the violation of shame boundaries by pupils, especially during puberty . "

The Swiss Olympic Association distinguishes between clear forms, which represent criminal acts, and subtle forms of sexual assault and sexual harassment. The latter includes the following actions: commenting on physical development, inappropriate education, voyeurism, sexist derogatory language, sexual approach, unnecessary physical contact and suggestive looks and comments.

Sexual harassment in the medical care relationship

According to Swiss estimates, around 10 percent of male doctors commit sexual harassment. The proportion is much lower for women doctors. All medical specialties are affected. The proportion of perpetrators among psychiatrists, gynecologists and general practitioners is particularly high at 15 percent. 80 percent of the perpetrators are repeat offenders.

Sexual assault in public spaces

In the course of the massive sexual assault on New Year's Eve 2015/16, the phenomenon of harassment in public spaces moved into the focus of discussions in the media and politics in German-speaking countries. As a subject of science, the topic was largely unexplored in Germany, and there were only relatively few cases in crime statistics. As a result of the sudden awareness of the problem, legal experts pointed out existing loopholes in the law and possible reform approaches.

Legal position

European Union

In this directive of the European Parliament and of the Council of 5 July 2006, the aim of which is to ensure the "implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation", Article 2 (Definitions), Paragraph 1 , Letter d “Sexual harassment” defines “any form of undesirable behavior of a sexual nature, which is expressed in undesirable verbal, non-verbal or physical form and which aims or causes the dignity of the person concerned to be violated, in particular if one of Intimidation, hostility, humiliation, degradation and insult is created ”.

Germany

General

Sexual harassment as a separate criminal offense was introduced with the law for the improvement of the protection of sexual self-determination of 10 November 2016 and only affects harassment that involves physical contact ( Section 184i StGB ). Touching another person "in a sexually determined manner" that constitutes harassment for the victim is punishable. "The offense is intended to protect the sexual self-determination of persons from sexually motivated body contact, which has a harassing effect." In particular, contact with the intimate sphere, i.e. the genital organs, the buttocks and the female breast, is included; usually also kisses on the mouth. Before the introduction of the criminal offense, relevant acts were only punishable as insults (with a sexual background) in special cases in accordance with Section 185 of the Criminal Code. Whether or not the harassed person felt subjectively offended was not decisive. Since Section 185 of the Criminal Code is not a catch- all offense, sex-related acts only fall under this provision if special circumstances indicated an independent offensive character. Even today, sexual harassment without physical contact is only punishable if it constitutes an insult.

Serious cases in which a "sexual act" in the criminal sense ( § 184h StGB) is present have been classified as " sexual assault " up to and including the case of rape , which is a particularly serious case of such a sexual assault, since November 10, 2016 , Threatened with punishment in § 177 StGB.

Sexual harassment in the workplace

According to the Law on the Protection of Employees from Sexual Harassment in the Workplace (Employee Protection Act - BeschSchG), sexual harassment was from September 1, 1994 to August 18, 2006 “any deliberate, sexually determined behavior that violates the dignity of employees in the workplace”. The employer or line manager (for civil servants) must protect his employees from sexual harassment according to Section 2 sentence 1 BSchG. The definition of what constitutes a sexual assault and where it begins is essentially defined by the relevant judgments of the labor courts. As of August 19, 2006, the provisions of the General Equal Treatment Act, AGG Section 3, Paragraph 4, and the Works Constitution Act (BetrVG), Section 75, Paragraph 2, apply in this legal matter .

term

Sexual harassment in the workplace is a disadvantage within the meaning of the General Equal Treatment Act (AGG). In § 3 Para. 4 AGG it is defined as "... an undesired, sexually determined behavior, which also includes undesired sexual acts and requests for this, sexually determined physical contact, comments of sexual content as well as undesired showing and visible attachment of pornographic representations or causes the dignity of the person concerned to be violated, especially if an environment characterized by intimidation, hostility, humiliation, degradation or insult is created. "

complaint

Sexually harassed employees have the right to lodge a complaint (Section 13 AGG). The employer or supervisor must investigate the complaint and take appropriate measures to prevent the sexual harassment found from occurring again.

Measure by the employer / supervisor

The employer must take appropriate labor law measures in individual cases. These are, in particular, admonitions , warnings , transfers , ordinary or extraordinary termination .

Examples from case law
This article or the following section is not adequately provided with supporting documents ( e.g. individual evidence ). Information without sufficient evidence could be removed soon. Please help Wikipedia by researching the information and including good evidence.
admonition
  • One-time harassment through sexual jokes against the will of the person concerned
Warning
  • Prick, stroke, whistle after colleagues
  • Get in the way with sexual innuendos
  • Once again put your arm around the shoulders of a trainee and caress him
Ordinary termination
  • Job interviews in a sauna
  • Repeatedly hugging a colleague against his will
Extraordinary termination
  • Repeatedly telling sexual jokes and pornographic stories to colleagues against their will in order to provoke them and to satisfy themselves
  • Obscene questioning of employees about sexual activities in the previous night combined with touching the genitals and obscene remarks and offers
  • Exhibitionistic acts (see also § 183 StGB)
Right of retention

If the employer / supervisor takes no or obviously unsuitable measures, the harassed employees may exercise their right of retention . This means that they are “entitled to cease their work without loss of pay, insofar as this is necessary for their protection” (Section 14 AGG).

Switzerland

Sexual harassment is a criminal offense in Switzerland (Art. 198 StGB) and, upon request, can be punished with a fine of up to CHF 10,000.00. In addition, several other laws contain provisions on sexual harassment. The prohibition of discrimination was incorporated into the Federal Constitution in 1981 (Art. 4, Paragraph 2 of the Ordinance) and was adopted in the revised Constitution in Art. 8, Paragraph 2. The prohibition of sexual harassment in the workplace is contained at the legislative level in the Federal Act on Equality between Women and Men (Equal Opportunities Act, GlG) of March 24, 1995 and is one of several elements that are intended to prohibit discrimination in working life or promote equality . Article 4 of the Equal Opportunities Act describes the facts, Article 5 defines the legal claims and Article 10 the protection against dismissal during the complaint procedure. Further legal provisions on the prohibition of sexual harassment can be found in Art. 328, Paragraph 1 of the Code of Obligations (OR) and in Art. 6, Paragraph 1 of the Labor Law (ArG). The addressees of the ban on harassment are exclusively employers within the scope of their responsibility for protecting the personality, the mental and physical integrity and the health of the employees.

Prevention

In addition to the legal prohibition, both the legislature and practice rely heavily on prevention by employers. Since the mid-1990s, a set of measures and instruments has been established in Switzerland in connection with the prevention of sexual harassment. This essentially includes informing employees about what is meant by sexual harassment. Another important preventive measure is the explicit statement by the company management that sexual harassment will not be tolerated in the company, that those affected by sexual harassment will receive support and that sanctions will be taken against harassers. So far it has mainly been larger companies and public administrations that have introduced regulations on the subject of sexual harassment and designate contact persons who support victims in-house. There are also a number of publicly accessible advice centers that advise and support victims. These are local or regional social services, specialist centers for equality, advice centers for women and work and cantonal arbitration boards.

The state gender equality bodies play an important role in making employers aware of their duties by providing information and materials that support prevention work.

Handling complaints

On the basis of Article 5 of the Equal Opportunities Act, harassed persons can apply to the court for discrimination - such as sexual harassment - to be established and refrained from in the future. Employers can be obliged to pay compensation and to provide compensation and satisfaction. The corresponding court decisions are documented online and freely accessible. However, it is recommended to choose out-of-court proceedings if possible. This can be an in-house defined procedure or calling the cantonal arbitration boards whose primary task is to mediate between the parties. The arbitration bodies have come together in the Swiss Conference of Arbitration Bodies under the Equal Opportunities Act "SKS" .

Australia

Universities Australia, an umbrella organization of 39 Australian universities, stated in a publication in August 2018 that, for example, a sexual or romantic relationship between a supervisor and a doctoral student is a conflict of interest and is therefore not permitted.

See also

literature

  • Godela Linde: Basta! Against sexual harassment in the workplace, advice and legal advice. ISBN 978-3894385903
  • Ulli Freund and Dagmar Riedel-Breidenstein: Sexual Assaults Among Children Handbook for Prevention & Intervention. ISBN 3-927796-69-7
  • Prevention - don't scare you! School prevention work against sexual violence, Uli Freund School in action. RAABE Verlags-GmbH / specialist publisher for education management, Berlin 2002
  • “Is that actually normal?” Sexual abuse among children. Guide to prevention and pedagogical professional handling , Berlin 2003, 60 pp.
  • Frigga Haug and Silke Wittich-Neven (eds.): Von Lustmolchen und Köderfrauen - Politics for sexual harassment at work (partly memory work ) ISBN 3-88619-252-0

Web links

 Wikinews: Sexual Harassment  - On The News

Individual evidence

  1. ↑ Sexual Harassment Debate - What Women Say What Men Say. In: spiegel.de. October 23, 2017. Retrieved November 20, 2019 .
  2. ↑ Ina Kerner: Differences and Power: To the anatomy of racism and sexism . In: Politics of Gender Relations . tape 37 . Campus-Verlag, Frankfurt am Main 2009, ISBN 978-3-593-38595-2 .
  3. ↑ Uta Klein: Military and Gender in Israel . Campus-Verlag, 2001, ISBN 978-3-593-36724-8 , pp. 179 ff .
  4. ↑ Daniela Rastetter: Sexuality and Rule in Organizations: A Gender Comparative Analysis . Wiesbaden 1994.
  5. ^ Helmut Willems, Dieter Ferring: Power and Abuse in Institutions: Interdisciplinary Perspectives on Institutional Contexts and Prevention Strategies . Wiesbaden 2014.
  6. ↑ JoAnn Bren Guernsey: Sexual Harassment: A Question of Power . Minneapolis 1995.
  7. ↑ Rosemarie Skaine: Power and gender: issues in sexual dominance and harassment . Jefferson, NC 1996.
  8. ^ Susan Halford, Pauline Leonard: Gender, power and organizations: An introduction . Basingstoke 2001.
  9. ↑ a b c d e Charlotte Diehl, Jonas Rees, Gerd Bohner: The sexism debate in the mirror of scientific knowledge . In: From Politics and Contemporary History . No. 8/2014 , February 7, 2014 ( bpb.de [accessed June 21, 2020]).
  10. ↑ Ina Kerner: Differences and Power: To the anatomy of racism and sexism . Frankfurt a. M. 2009, p. 169 .
  11. ↑ Background message : Protecting women from violence - sexual harassment. In: bmfsfj.de . March 3, 2020, accessed August 14, 2020 .
  12. ↑ In the inn (painting, genre). In: objektkatalog.gnm.de. Germanisches Nationalmuseum , accessed on April 30, 2019 .
  13. ↑ Silvia Strub and Marianne Schär Moser: Risk and spread of sexual harassment in the workplace. A representative survey in German-speaking and French-speaking Switzerland, Bern 2008
  14. ↑ Wendy Kaminer: Sexual Harassment and the Independent Contractor. In: theatlantic.com. August 24, 2010, accessed March 23, 2019 .
  15. ^ Katie Benner: Women in Tech Speak Frankly on Culture of Harassment. In: nytimes.com. June 30, 2017, accessed July 23, 2017 .
  16. ↑ Silicon Valley: female founders report harassment from investors. In: derstandard.at . July 1, 2017, accessed July 23, 2017 .
  17. ↑ Supplementary guidelines for the schools in the city of Bremen on the prohibition of sexual harassment and violence against children and young people. Quoted from: ... and what if it is one of us? Dealing with sexual harassment and sexual violence by teachers or other school employees at pupils in Bremen schools. Bremen administration online. The Senator for Children and Education, accessed September 14, 2015 .
  18. ↑ No sexual assault in sports. Leaflet for club leaders, trainers and parents. swissolympic.ch, March 2014, accessed on September 14, 2015 .
  19. ↑ Most are repeat offenders: FMH discusses sexual assault on patients by doctors , NZZ Online , May 11, 2012
  20. ↑ Christine Romann: Sexual assaults in medical treatment - act! (PDF; 70 kB), Schweizerische Ärztezeitung (SÄZ) No. 19/2012 of May 2012, p. 203
  21. ↑ Christoph Eberhardt, Julia Schaaf: New Year's Eve in Cologne - Did the deeds have a system? In: faz.net . January 17, 2016, accessed July 31, 2020.
  22. ↑ Ulrike Lembke : Sexual Assaults in Public Space - Legal Situation and Need for Reform in Germany. In: Verfassungsblog . January 12, 2016, accessed November 15, 2019.
  23. ↑ See in detail: Act amending the Criminal Code - Improving the protection of sexual self-determination. In: Legislative Procedure November 4, 2016. Federal Ministry of Justice and Consumer Protection, November 10, 2016, accessed on December 6, 2017 .
  24. ↑ Erol Pohlreich: The criminal liability of "groping" as sexual harassment within the meaning of § 184i StGB - a fraudulent label? At the same time, discussion of BGH HRRS 2018 No. 749. In: HRRS 1/2019, pp. 14–27 (quote: p. 23).
  25. ↑ Jörg Eisele in: Schönke / Schröder , Criminal Code, 30th edition 2019, § 184i paragraph 6.
  26. ^ BGH, judgment of March 15, 1989, file number 2 StR 662/88 .
  27. ↑ Employment Protection Act - BeschSchG (no longer in force)
  28. ↑ Claudia Kaufmann and Sabine Steiger-Sackmann (eds.): Commentary on the Equal Opportunities Act, Basel 2009
  29. ↑ Véronique Ducret: Sexual harassment - what to do? A guide for companies, Zurich 2004
  30. ↑ Sexual harassment in the workplace. In: ebg.admin.ch. Retrieved July 28, 2019 .
  31. ↑ Decisions according to the Equal Opportunities Act - a project by the specialist agencies for equality in German-speaking Switzerland. In: Gleichstellungsgesetz.ch. Retrieved September 13, 2019 .
  32. ↑ SKS - Who we are. In: sks-coc-ch. Retrieved January 20, 2018 .
  33. ↑ Relationships between academic supervisors and their students are never okay. In: universitiesaustralia.edu.au. August 1, 2018, accessed August 5, 2018 .