Sexual harassment in workplaces is still rampant despite the numerous efforts to raise awareness. California has even made changes in its constitution to address the problem more effectively. But even with that, the state still records high cases of workplace sexual harassment. Sexual harassment is illegal since it violates state and federal civil laws. But can it be considered criminal?
That is a question most victims need answers to know when to file criminal charges against their abusers. The truth is that some cases of sexual harassment are criminal, while the others are not. It depends on the circumstances of your case, as we will discuss in this article. Speak to an experienced criminal defense attorney for more information and legal assistance.
Workplace Sexual Harassment — What it Entails
Federal laws advocate for safe workplaces for all. Therefore, sexual harassment is not tolerated in all parts of the country. All forms of workplace harassment are treated as civil wrongs in the country. It means that perpetrators can only sue the responsible party (who, in most cases, is the employer) in a civil court for financial compensation. As such, sexual harassment is mainly a civil and not a criminal case under state and federal laws. However, some acts of sexual harassment could make it both a civil and criminal offense, prompting the victim to file criminal charges against their abuser.
Sexual harassment in California affects both men and women and can take many forms. It occurs when a person experiences unwelcome conduct of a sexual nature that results in an offensive or hostile work environment and sometimes adverse job actions against them.
It starts with unwelcome conduct that the victim cannot resist due to the power dynamics between them and their harasser. Some victims agree to the unwelcome conduct for fear of repercussions like losing their job if they object. Thus, consent is usually not a defense against workplace sexual harassment. However, the behavior must be generally unwelcome such that the victim is unhappy and irritated whenever the harasser acts in a certain way or makes sexual comments. Some victims do not realize they are facing sexual harassment and could participate in it. That does not make the harasser less guilty.
The unwelcome conduct must be sexual for it to qualify as sexual harassment. However, it does not need to be explicitly sexual or meant to satisfy the harasser sexually. Any sexual conduct directed towards a worker due to their gender qualifies as sexual harassment.
The unwelcome conduct must develop to a particular level of sexual harassment, either pervasive or severe. It must have occurred a couple of times. A single incidence of alleged sexual misconduct will not satisfy the elements of the offense.
At times the harasser loses patience with the victim’s rejection and could take action against them. For instance, if the harasser is the boss, he/she could react by frustrating the victim’s effort to be promoted or even fire them.
Instances When Workplace Harassment is a Crime
From the legal definition of workplace sexual harassment above, sexual harassment does not take one form. It is different in different workplaces. Victims’ experiences can also differ significantly. Therefore, whether or not workplace sexual harassment can be considered a crime varies from one case to the other. One victim’s situation can only qualify as a civil case, while others can be regarded as a crime.
As previously mentioned, workplace sexual harassment is not considered a crime in California but a civil case. However, some conduct could be criminal. Some situations constitute conduct that violates criminal laws. For instance, making sexual comments in the presence of a particular worker is not a crime but a straight civil case. However, touching the worker inappropriately could violate sexual assault or battery laws and result in criminal charges.
Let us consider some of the instances in which workplace sexual harassment could be regarded as a crime:
When Rape is Involved
Rape is a grave offense in California. It occurs when a person uses threats, fraud, or force to have sexual intercourse with another against their consent. California laws prosecute rape as a felony offense, attracting a prison sentence of up to eight years.
In some extreme cases of workplace sexual harassment, the harasser could also be a rapist. When workplace sexual harassment escalates to rape, the victim can file criminal charges against the harasser and a civil lawsuit against the harasser’s employer.
With the guidance of a competent criminal attorney, you (the victim) can file criminal charges against the perpetrator. A judge will issue a warrant for the assailant’s arrest, after which they will stand trial in a criminal court.
The prosecutor will prove the following elements during trial for the court to find the assailant guilty of rape:
- He/she had sexual intercourse with you
- You were not married to the assailant at the time of the offense
- You did not consent to the sexual intercourse
- The assailant used violence, threats, menace, duress, fraud, or fear of physical harm to accomplish the offense
As a felony offense, rape attracts severe penalties after a conviction. Thus, the assailant will likely receive a lengthy prison time and a hefty fine. The judge could send them on formal probation under strict probation conditions. If you suffered severe physical injuries in the commission of that offense, the assailant could receive additional 3-5 years in prison.
Most convictions for rape in California result in a lifetime requirement for the assailant to register as a sex offender. The sex offender registry is publicly available. It means that anyone searching the assailant’s name on the registry will know of the conviction.
On top of filing criminal charges against the assailant, you will be able to file a civil lawsuit against the responsible party for the workplace harassment you suffered at the hands of the assailant. Thus, you will still be able to recover monetary compensation for all damages you incurred as a result.
When It Becomes Sexual Assault or Battery
If workplace sexual harassment involves offensive physical contact or threats of offensive contact, it could also be considered a crime.
California law defines sexual assault/battery as touching another person’s intimate body parts against their will for sexual arousal, abuse, or gratification. Depending on its circumstances, the offense is prosecuted as a misdemeanor or felony. It attracts a prison sentence of up to four years upon conviction.
The prosecutor must prove all the elements of this offense beyond a reasonable doubt for the assailant to be found guilty of sexual assault/battery. They are:
- The assailant touched your intimate parts
- They did so against your will
- The assailant acted that way for sexual gratification, abuse, or arousal
Sexual assault/battery does not require sexual intercourse or penetration. Even a slight touch on your private parts qualifies as a crime.
If you did not know the nature of the act or were fraudulently convinced that the touching was for a professional purpose, the assailant could face felony charges. Felony charges would also apply if the assailant unlawfully restrained you to facilitate the offense or forced you to masturbate or touch the private parts of another person.
Touching applies to any contact the assailant will have made with your intimate body parts. It could be direct or indirect (through clothing). Felony sexual battery involves sexual contact with a victim’s bare skin.
Intimate body parts refer to the anus, groin, buttocks, sexual organs, or female breast.
Sexual battery is also highly punishable in California. Thus, the assailant will likely receive a hefty penalty if convicted.
If found guilty of misdemeanor sexual assault/battery, the assailant will likely receive the following penalties:
- A maximum of six months in jail
- A fine of not exceeding $2000 or $3000 if the offender was your employer
- Summary or misdemeanor probation for a maximum of five years
If placed on probation, the assailant will be required to abide by strict probation conditions, including participating in community service, completing a batterer's program, and registering as a tier-one sexual offender for at least ten years.
If the assailant is convicted of felony sexual assault/battery, they will likely receive the following penalties:
- Felony or formal probation
- Two, three, or four years in prison, and an additional 3-5 years of you sustained severe physical injuries.
- A maximum fine of $10,000
- Registration as a tier-three sex offender for life
When It Involves Unlawful Restraint
Sometimes workplace sexual harassment could involve the harasser unlawfully restraining the victim, violating their freedom of movement. Unlawful restraint could be through threats or physical force. When workplace sexual harassment escalates to the point where the harasser falsely imprisons or unlawfully restraints the victim, the harasser can face criminal charges. The party responsible for the workplace harassment could be held liable for the resulting damages.
Employees in California should be free to move in and out of their workplace with no issues at all. For instance, an employee should be free to leave the office at the end of a working day. When a person within your workplace prevents that or restrains your movement in any way, they could face criminal charges for false imprisonment.
Workplace-relates false imprisonment could take several forms, including:
- Intentional imprisonment, whereby the harasser intentionally restricts or limits another person’s freedom against the victim’s consent. Physical restraint is not necessary. Your harasser could be guilty of intentional imprisonment if they threaten you with violence if you try to leave.
- Non-consensual imprisonment, whereby you do not consent to the restraint, but your harasser goes ahead to imprison you falsely
- Use of force or threats of force to keep the victim in one place/location
Unlawful restraint is prosecuted as a misdemeanor or felony in California, depending on the facts of the case. Felony charges carry a more severe penalty than misdemeanor charges. A misdemeanor conviction is punishable by one year in jail, while a felony conviction could carry a prison sentence of up to 20 years. However, the judge can send the defendant on probation to serve part of their entire sentence out of incarceration.
When Workplace Harassment Involves Bullying
Some workplace harassment could violate California anti-bullying laws. When that happens, the harasser could face criminal charges.
Bullying takes many forms. Therefore, you can check with a competent criminal attorney to determine whether your situation satisfies all the elements of this offense to devise your next course of action.
For example, your harasser could have posted offensive comments about you on the wall of the office you share with other employees or on social media, knowing very well that other workers will see the comment. That qualifies as cyberbullying.
Some workplace harassers take advantage of their senior position at work to solicit sexual favors from junior employees, threatening them with serious job action if the victim fails to cooperate. These are forms of bullying that could support criminal charges.
The crime of bullying or harassment occurs when a person acts in a way designed to provoke, annoy, threaten or cause another person emotional distress. It falls under harassment laws. The prosecutor must demonstrate that the assailant’s actions were considered illegal in the state, for instance, cyberbullying or stalking. However, the defendant does not need to have intended the results.
Generally, harassment requires a specific intent. The prosecutor must prove the harasser’s intent too. It could be that defendant said or did something intending to harass you or cause you to give in to their sexual demands.
Various forms of bullying and harassment are prosecuted as a misdemeanor or a felony in California. The punishment the defendant is likely to receive will depend on the form of harassment they are guilty of. For instance, cyberbullying or online harassment is a misdemeanor offense, punishable by a maximum of one year in jail. Stalking is also a form of bullying or harassment, prosecuted as a felony or misdemeanor in california. It attracts a maximum prison sentence of five years.
When It Involves Stalking
Stalking is a separate crime, even though sometimes it is discussed under harassment laws. Stalking involves willingly, maliciously, and continually following another person, intending to place the person in reasonable fear for their safety or the safety of their loved ones.
Workplace harassment becomes a crime when the assailant takes the harassment out of the office to follow and troll the victim at the parking lot, in the streets, or at home. If the harasser showcases any stalking behavior, he/she could face criminal charges for stalking.
Stalking is legally defined as:
- Willingly and maliciously following another person
- And making credible threats against the person, intending to place the person in reasonable fear for their safety and the safety of their family.
Stalking is prosecuted as a misdemeanor or felony in California, depending on the details of the case and the defendant’s criminal history. If charged as a misdemeanor, your harasser could receive a year of jail time upon conviction. But if charged as a felony, he/she could receive a maximum of five years in prison.
Stalking is also a crime of moral turpitude. It means that it could carry severe immigration consequences. If the assailant is an immigrant, he/she could be deported or marked as inadmissible into the country.
When it Involves Child Pornography
Workplace sexual harassment could involve visuals, whereby the harasser intentionally sends or shows explicit visuals to the victim. If these visuals violate California child pornography laws, the perpetrator and employer could face criminal charges.
California has strict child pornography laws which prohibit and punish the possession, production, distribution, transportation, and sale of pornography that depict or involve minors below the legal age of 18. If your workplace harasser sends or shows you pornographic material involving children, you can file criminal charges against them. You will also be eligible for compensation under the state workplace harassment laws.
The prosecutor will demonstrate that the defendant knowingly possessed and distributed pornographic materials involving children. It means that he/she was aware of the nature of the material, and he/she went ahead to keep and share it with you and probably other people.
Possession and/or distribution of child pornography is a misdemeanor or felony offense in California, attracting a maximum prison sentence of six years. The defendant could also be required to register as a state sex offender.
Find a Competent Criminal Attorney Near Me
While workplace sexual harassment is generally a civil case, it could lead to criminal charges against the perpetrator. It is advisable to find every legal help you could receive if you suffer sexual harassment in your workplace. If your case has some criminal elements, you could find justice in a criminal court where your harasser will face charges and receive penalties upon conviction. Additionally, you will file a civil lawsuit against the responsible party for the resulting damages. For legal advice and help to file a criminal charge against your workplace harasser in Los Angeles, CA, call us at 310-935-1675. We have a team of competent criminal attorneys at The LA Criminal Defense Law Firm that will study your case and advise you on the right course of action to take.
