What is Sexual Assault in the Workplace?
By definition, sexual assault and sexual harassment are two different offenses. Sexual harassment occurs when an individual makes unwanted sexual advances, requests sexual favors, or engages in other obscene verbal or behavioral activity of a sexual nature in a manner that makes the recipient feel uncomfortable or threatened. An offense graduates from sexual harassment to sexual assault when it involves intentional sexual contact characterized by intimidation, use of force, abuse of authority, threats or occurs when the victim does not or cannot consent. Both sexual harassment and sexual assault have been described as falling on the same spectrum or "continuum" of sexual violence, including "rape and sexual assault as well as acts and behaviors that are normalized in our society, such as sexually degrading language, sexist attitudes and behaviors." The constructs of sexual harassment and sexual assault share overlapping characteristics, but sexual assault is partially distinct - defined by the sexual offender physically effectuating a threat, intent, advance or request of a sexual nature toward the victim.
Examples of Workplace Sexual Assault
- using coercion or threats in order to engage in sexual activity
- forced kissing
- forced fondling
- forcible oral or anal intercourse
- abusive, aggravated or wrongful contact between the abuser's mouth, hands, genitals, etc., with the victim's body
- grabbing without permission
- sexually or suggestively touching an incapacitated person
- touching a person with an object without consent
- forcibly showing content such as photo or video of a sexual nature to an unwilling viewer
- any attempts to commit these acts
Sexual assault is an illegal bodily violation of the victim which may or may not result in physical harm to them. It is a gender neutral offense that can happen to anyone who receives unwanted, uninvited sexual contact from a coworker, supervisor or other team member in the workplace. It could occur in a single episode or a series of repeated incidences.
Above all, sexual assault is an actionable legal claim for which the victim can take the offender to court and see them prosecuted to the fullest extent of the law. Although sexual assault has indeed been prosecuted as a type of sexual harassment, victims also have the option to prosecute sexual assault in the workplace under criminal law.
Defining Consent in Cases of Workplace Sexual Assault
Sometimes attorneys for sexual assault offenders will try to argue that consent was given for the sexual act, or that the victim's silence constituted consent. Advocacy groups for victims of sexual assault have set about defining a hard-line meaning of consent to help eliminate any potential 'confusion' over what constitutes consent in such a situation. Some states also set definitions of consent in these cases, which are unique to that state.
The Uniform Code of Military Justice provides a useful breakdown of what consent is and what it is not: "Words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused's use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating relationship by itself or the manner of dress of the person involved with the accused in the sexual conduct at issue shall not constitute consent."
In Maryland, consent is not specifically defined because the law contends that it is quite nuanced. It depends on many factors, including the age, conscious state and cognitive ability of the victim. Case law precedent in Maryland holds: "In the case of a conscious and competent victim, mere passivity on the victim's part will not establish the absence of consent. The law looks for express negation or implicit negation as evidenced by some degree of physical resistance or an explanation of why the will to resist was overcome by force or fear of harm." Travis v. State, 218 Md. App. 410, 428, 98 A.3d 281, 291 (2014).
In Pennsylvania, consent is not specifically defined. The law, however, repeatedly states that sexual assault has occurred if the victim has a mental disability who renders them incapable of consenting.
In Washington D.C., “consent” means words or overt actions indicating a freely given agreement to the sexual act or contact in question. Lack of verbal or physical resistance or submission by the victim, resulting from the use of force, threats, or coercion by the defendant shall not constitute consent. D.C. Code § 22-3001.
Sexual Assault Across Industries
Sexual assault in the workplace has arguably been an issue since the inception of the formal workplace environment. It is difficult to gauge exactly how pervasive or common this offense is because not all victims come forward, as the result of shame, confusion, depression or worst of all, a misplaced sense of fault. The problem of sexual assault in the workplace has arisen in almost every industry. Women and men in retail, food service, tech, entertainment, the sciences, advertising, agriculture, finance, fitness, education and so many more have come forward with stories of sexual assault and some have taken legal action against the perpetrators. Sexual assault is also alarmingly prevalent in the military.
Allegations of sexual assault have recently been in the media - against presidents, executives, TV hosts, celebrities and more. Women and men sometimes wait a great deal of time before going public with the incident of sexual assault to which they were subjected. If you have been sexually assaulted in the workplace, you are urged not to recover from the incident in silence. The only way to ensure other men and women do not confront the same abuse is to take action against the person who assaulted you.
Criminal Sexual Assault
Under what circumstances is sexual assault a crime, by legal definition? Under all circumstances? Under narrow and specific circumstances. The answer to these questions depend on the state in which the victim was assaulted.
Maryland criminalizes sexual assault when the victim is raped in the first or second degree, or encounters a sexual offense in the first, second, third or fourth degree - all of which are theoretically conceivable in a workplace setting. Many of these forms of sexual assault involve the use of a weapon, bodily injury, use of force or threat of force, or apply in situations in which the victim was either incapacitated, unconscious or too young to consent. Penalties for criminal sexual assault begin at 1 year or less in prison and a fine of less than $1,000, with the potential for the offender to get life imprisonment. It all depends on the circumstances and scope of the crime.
In Pennsylvania, the various types of workplace sexual assault are categorized as either indecent assault or sexual assault. Indecent assault encompasses any assault of a sexual nature that does include intercourse. In the state, rape carries a penalty of up to 25 years in prison and $25,000. Indecent assault is a second degree felony punishable by up to 10 years in prison and discretionary fines on the part of the court.
In Washington D.C., first, second, third, fourth degree and misdemeanor sexual abuse are all crimes punishable under the law, penalties for which begin at 180 days in jail and $1,000 fine, and can reach life imprisonment with a fine up to $250,000.
How To Report Sexual Assault in the Workplace
Depending on the nature and severity of the assault, a victim may want to begin by contacting the police and explaining what transpired. In the case of workplace rape and other types of severe sexual assault, there is usually a statute of limitations which dictates how long the victim has to come forward and report the incident if they wish to get law enforcement involved. In some ways, this is discretionary, and the victim may choose to report the assault to personnel directly above the abuser; if the abuser does not directly answer to someone above them, then personnel of similar standing. If there are none, then the victim may report it to an HR department or coworkers, if they feel comfortable with the latter.
It is important to note that the earlier a victim reports, the more compelling the evidence against the offender may be. In addition, the earlier the victim reports, the sooner the perpetrator can be stopped and the wheels of justice can be put in motion.
Responsibility of Employers in Sexual Assault Cases
Most companies are encouraged to have defined sexual assault and harassment protocols in case incidents do occur. Proactive employers will have crafted a prevention and response plan. If you report the incident to management, bear in mind that employers have an ethical and legal responsibility to keep their employees safe. This includes safety from sexual assault.
Title VII of the Civil Rights Act of 1964 expressly prohibits sexual harassment and assault in the workplace, which includes coerced sexual exchanges and unwanted sexual attention. For this reason, an employer must take action by investigation and/or termination when there has been a substantiated claim of sexual assault. Employers are also legally prohibited from retaliating against an individual who reports sexual abuse, whether it be harassment or assault. However in some states, such as Pennsylvania, employees are legally limited in the types of claims they can bring against their employer.
A victim should note that reporting an assault to their immediate management does not constitute making a legal claim against the offender, and if they wish to do so, they must make sure they do it before their time to file expires.
When Is An Attorney Needed in Workplace Sexual Assault Cases?
In some cases, simply firing a person who has committed sexual assault is not a satisfactory resolution for the person who has been assaulted. In other cases, the person may not have been fired at all; they may be in a position of workplace power to avoid repercussions for their crime, or the employer may have snuck arbitration clauses into your contract so that you may not file suit against them.
If it has been difficult to bring the perpetrator to justice for sexually assaulting you in the workplace, you must speak with an experienced, aggressive attorney who can evaluate your case. An attorney can shoulder the weight of the case for you so you are free to focus on other things and not navigate complex legal minutiae in an attempt to bring your abuser to justice. It can create a sense of security and peace of mind when you have a high caliber legal representative devoted to fighting your case and bringing the person who assaulted you to justice.