The crime of sexual harassment
Introduction
However, in this new writing of the type, environmental sexual harassment is still excluded. In this type of harassment, the particularity lies in the fact that there is no request, but in establishing a hostile atmosphere;This consists of the discomfort that is created with prolonged sexual allusions in conversations, pats, notes, etc. Therefore, although the legislator has provided in the criminal type a hostile or humiliating situation, with the introduction of the request requirement excludes this type of sexual harassment.
The second element requires that the application be made in a labor, teacher or service provision, continuous or usual.
Developing
These three concepts (employment relationship, teacher or service provision) must be understood with a broad meaning. The power that these qualifications reach when entering the Criminal Code makes the restrictive tendency exist in labor law eliminated in the criminal field. The relevant, therefore, in this requirement is the context where the action occurs.
The difference regarding the previous regulation deserves special attention. The regulation of an analogous relationship is replaced by the provision of services, continuous or usual. Therefore, that circumstantial or isolated link is excluded. However, despite this extensive interpretation of the requirement, those people who request work appear sections of the type. Although for them the coercion could be greater, since that relationship has not yet been established, these behaviors are relegated from the criminal type.
The superiority requirement of one subject with respect to the other is eliminated, a sexual harassment can be collected between equals and even the one that is carried out by a subject that is in a lower situation with respect to its victim.
Unlike the first two elements, this is controversial, because the concept used is very extensive. With it it is intended to give an objective character to the circumstance that causes the application of the criminal type, to get closer to the reality in an impartial way;so that a third person is able to distinguish that intimidating, hostile or humiliating situation.
Because the basic type does not require the dependency relationship, its neutrality will be subordinated to the characteristics that the sexual request presents. Therefore, in this basis the need for the following acts produced to the first rejection of the victim is repeated and persistent.
Therefore, in horizontal harassment, where the active subject cannot restore the future of the taxpayer, this repetition of acts will be the one that constitutes the objective and severely intimidating, hostile or humiliating situation. Factor, on the other hand, that will not be necessary in vertical harassment, since in this the supremacy link is sufficient for itself to create the described situation.
This is stated by Morales Prats and García Albero by stating that the environment in the case of horizontal harassment must necessarily be derived from a persistent and overwhelming attitude by the applicant once the Receiver’s refusal is known;On the contrary, such persistence would not be enforceable in the case of vertical harassment, since the power relationship constitutes a preponderant factor of causing the typical situation with a single application.
Aggravated type.
Article 184.2 of the Criminal Code covers in this aggravated modality the first writing of the type included in the Criminal Code of 1995. The superior penalty that is collected in this type depends on two behaviors that are punished, and that are reflected in an alternative and differentiated way.
To begin with, it requires that the culprit had committed the fact prevailing from a situation of work, teaching or hierarchical superiority. Finally, it requires that the fact had been committed with the express or tacit announcement of causing the victim a evil related to the legitimate expectations that it may have in the field of the indicated relationship.
Thus, this aggravated modality guardianship two circumstances: harassment with prevalent and sexual blackmail.
Therefore, it respects the first, it is required that there is a position of superiority of the active subject on the victim, which is inferior;term that should not be mixed with that of vulnerability. This situation has to be given in labor, teachers or hierarchical relationships. Therefore, there is require that there is an abuse of such superiority capable of influencing the victim’s decision regarding the sexual application.
The singular note in this case is that the request is carried out by a superior of that relationship, and that this superiority is prevailed. At this point a debate has been opened by the doctrine about whether superiority can only be hierarchical or if the functional is also admitted. In this last option, partners who are in the same hierarchy position would be included in the superiority relationship, but that exercise tasks among which some depend on others. The authors who defend this wide position understand that what is sanctioned is not the superiority relationship, but the situation;Therefore the Criminal Code refers to this term.
As a consequence of the writing of the criminal type and the introduction of the conjunction or between the two reflected elements, it enables the separation of the situation of superiority of the influence on the legitimate expectations. As a general rule, the request made by a person who is in a situation of superiority makes the victim receive said request as an intimidation. However, with the alternative of the two circumstances of the type, it is enough to prove the situation of superiority and take advantage of it, without it being necessary to demonstrate the warning of a damage to the legitimate expectations.
It is important to highlight the modification produced with respect to the first regulation. With the inclusion of crime in the 1995 Criminal Code, reference was made to an analogous relationship, and this has been replaced by hierarchical.
conclusion
Finally, it should be noted that this requirement of the employment, teacher or service relationship rejects numerous cases that, despite having the rest of the characteristics, are not given in the required environment;how can it be made by an ex -partner or street harassment. As a third and last foundation of the type, the need to cause the victim an objective and severely intimidating, hostile or humiliating.
This refers to the effect that causes the subject’s behavior in the victim. This entails that the guy is qualified as a crime of result and not of activity as previously happened.
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