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How Sexual Misconduct differs from Sexual Assault

Posted by Kruse Law on December 01, 2018

 

A recent CNN article, ‘This is Why People Hesitate to Report a Sexual Misconduct’, referenced the rape accusations against Bill Cosby as well as Christine Blasey Ford’s allegations that Judge Kavanaugh sexually assaulted her at a party when they were both students.  Most Canadians have some sense of what sexual assault entails, but ‘sexual misconduct’ has often been used when referring to a wide range of sexual behaviours and this can create real confusion about its meaning.

Sexual assault is a criminal offence under Canada’s Criminal Code and refers to non-consensual touching or physical attacks of a sexual nature.  By contrast, sexual misconduct is not a legal issue; rather, it refers to social behaviour that our society deems to be inappropriate because the behaviour makes the victim feel uncomfortable, coerced and/or harassed. The term, sexual misconduct, is most often used when referring to misconduct against women; however, men are also victims of sexual misconduct, although much less frequently.

One factor that may identify a particular behaviour as ‘sexual misconduct’ is when a person in a position of power uses speech or actions of a sexual nature when interacting with someone in a vulnerable position.  Sexual harassment is a form of sexual misconduct that we most commonly associate with the work environment, and about 38 per cent of women report they were sexually harassed at work.  Sexual harassment occurs when a boss, person of authority or co-worker makes advances of a sexual nature, such as flirting, sexual jokes and unwanted touching.   Discriminatory remarks about a person’s gender are another form of sexual harassment.  Work-related sexual harassment ranges from making a victim feel uncomfortable, to feeling coerced to go along with the unwanted joking, touching or sexual intercourse to avoid being side-lined or fired. 

The perpetrators of sexual harassment are not necessarily one’s boss or co-worker and sexual harassment occurs in many public and private places beyond one’s place of work.  For example, American female journalists have reported that men frequently yell obscene or sexual insults at them while they report news in public places.  Incidents of unwanted touching in nightclubs or while walking down the street; sexual remarks shouted out by passers-by; sexually implicit language addressed to someone by a teacher or fellow student; and stalking – are all forms of sexual harassment.  One form of sexual harassment that impacts young girls and is reportedly quite common is when, at the onset of puberty, boys stare at their classmate’s breasts and make comments about their size and development.

Among the most serious cases of sexual misconduct or sexual harassment are where a person in a vulnerable position feels they have to have sexual relations with the person in a power position in order to avoid negative consequences.  A recent and highly publicized example is the Harvey Weinstein scandal, where Mr. Weinstein is alleged to have been involved in many instances of unwanted touching and coercing actresses and other women to have sexual relations with him in order to prevent being fired or being blocked from moving forward with their careers. The revelations in the media about Mr. Weinstein’s actions are, in large part, responsible for initiating the ‘Me Too’ movement encouraging women to speak up about their personal experiences of sexual harassment or sexual assault.  However, the Canadian Women’s Foundation suggests that the actions allegedly perpetrated by Mr. Weinstein go beyond the definition of sexual misconduct and are, in fact, a form of sexual violence.

Forceable rape is an extreme form of sexual violence and generally constitutes sexual assault.  Forceable rape involves a victim who has not given consent, including cases when the victim was intoxicated, asleep or mentally compromised in some way.  About one in five women report having been raped at some point in their lives, according to a U.S. Centers for Disease Control and Prevention 2010 report.  And, the Canadian Women’s Foundation reports that sexual assault is the only violent crime that is increasing.

Sexual misconduct, particularly sexual harassment, has been extremely common for generations and is far more common than rape or sexual assault.  About three quarters of women say they experienced verbal sexual harassment at some point in their lives; about half were subjected to unwanted touching; and 40 percent experienced cybercrime, according to a widely-based survey by the non-profit group, ‘Stop Street Harassment’.  In the past, sexual harassment was simply something women (in particular) experienced and had to deal with, and in many cases was rarely talked about.  But, if a victim did speak up, their experience was often dismissed because it wasn’t considered a big deal, certainly not as egregious as rape or another form of sexual assault.  However, the ‘Me Too’ movement appears to be changing our acceptance of sexual misconduct and sexual harassment, and many Canadians believe reports of sexual misconduct or harassment will no longer be easily ignored.  

Sources:

www.npr.org/sections/thetwo-way/2018/02/21/587671849/a-new-survey-finds-eighty-percent-of-women-have-experienced-sexual-harassment

www.cdc.gov/violenceprevention/pdf/NISVS_Executive_Summary-a.pdf

www.canadianwomen.org/the-facts/sexual-assault-harassment/

www.avaloncentre.ca/quicklinks/glossary-and-definitions/

www.stopstreetharassment.org/

www.cnn.com/2018/09/17/health/why-people-hesitate-to-report-sexual-misconduct/index.html

 

Posted under Criminal Charges, Sexual Assault