Flirting, Sexual Harassment and Criminality

The recent headlines surrounding Hollywood film producer Harvey Weinstein and the MeToo hashtag have brought into focus the often troubling question as to when does flirting becomes sexual harassment and when does sexual harassment become a criminal offence?

Most of us have flirted or been the subject of flirtatious attention. Coming from the right person at the right time it can bring happiness and contentment. A force for good.

From the wrong person at the wrong time it will make you feel uncomfortable and wary but no criminal offence.

Persistent and unwanted   flirtatious advances are  often described as sexual harassment particularly if it  creates an intimidating, hostile or degrading environment.

So is sexual harassment a crime?

There is no criminal offence of sexual harassment. There are various types of harassment of a sexual nature that is criminalised. Prosecutions are often brought against ex partners who refuse to accept a relationship is over. Texts, phone calls and unwanted advances are often prosecuted under the Protection from Harassment Act 1997.

More sinister advances if made through letters, emails, or texts are prosecuted under the Malicious Communication Act 1998.

Physical advances can be charged under The Public Order Act 1986 and where there is any element of sexual gratification the Sexual Offences Act 2003.

To confuse matters most sexual harassment incidents in the work place are normally dealt with in the civil courts, usually in employment tribunals whilst identical behaviour in a social settings can often end up with police involvement.

Should there be a new Sexual Harassment Act?

There are laws in place criminalising behaviour where the offence is based upon race and religion. Why not extend this to gender in the guise of a new Sexual Harassment Act? This would cover acts that are sexually motivated and involve the belittling or sexual objectification of women or men solely on the basis of gender. It’s primary aim will be to set boundaries as to behaviour and expectations regardless whether it takes place at work, at home in a club or on public transport.

One police force in the UK already records misogynistic incidents as a hate crime. It defines them as incidents motivated by the attitude of a man towards a woman simply on the basis the ‘victim’ is a woman.

The MeToo hashtag has definitely increased the appetite for such legislation by revealing the extent of harassment suffered by those because of their gender. However until any specific law is enacted, the Police will continue to try and fit misogynistic behaviour into generic laws that potentially fall short in reflecting the true mischief  behind the offences and the true intentions of the offender.

Until then there still remains the grey area of when harassment becomes a criminal matter.

Max Saffman – Criminal Defence Solicitor

Written by Max Saffman. Max is a criminal defence lawyer and Higher Court advocate and has extensive experience of defending allegations of serious crime. If you require advice in relation to an allegation involving sexual harassment please contact him on 0161 8341515 or by email to maxsaffman@olliers.com.