A Breakdown
Disclaimer: This blog is not a substitute for legal advice but rather a guide. Call JJ Lawyers for a robust legal defence!
Over 50% of women and 25% of men experience sexual harassment—and the numbers continue to rise.
However, those involved in a sexual harassment case face a complex legal situation that is practically and emotionally difficult to navigate.
At James & Jaramillo, we will empower you to take charge of your situation to make sound personal and legal decisions.
By the end of this article, you will have a firm grasp of the legal definition, implications, and consequences of sexual harassment. If you have been accused or charged with sexual harassment, please do not hesitate to contact us to book a free consultation.
What Is Sexual Harassment? – What Is Inappropriate Conduct Of A Sexual Nature?
It’s More Than an Inappropriate Touch –
Sexual harassment is an unwelcome, unwanted sexual behaviour or conversation and is illegal under the Sex Discrimination Act and state discrimination laws. Sexual harassment can be verbal, written, or physical and depends more on the intended target’s perception than the perpetrator’s intention. Additionally, the legal definition specifies that “a reasonable person would anticipate that reaction in those circumstances.”
Although sexual harassment is illegal everywhere, the legal implications differ depending on where the event occurred.
Performing any of the following behaviours without explicit consent, one risks an accusation of sexual harassment.
Verbal Harassment
Examples include:
- Indecent comments
- “Cat-calling”
- Telling indecent jokes
- Indecent phone calls of a sexual nature
- Requests or pressure for sexually explicit acts
Written Harassment
Examples include:
- Indecent text messages
- Suggestive or indecent photographs of the plaintiff
- Unwanted lewd or indecent pictures unrelated to the plaintiff
Physical Harassment
Examples include:
- Inappropriate staring or leering
- Unwanted or nonconsensual touching
- Indecent exposure
- Indecent gestures
The Sex Discrimination Act (1984)
It’s Illegal to Discriminate Based on Sex, Gender Identity, Status, or Orientation
The 1984 Australian Sex Discrimination Act (SDA) makes it illegal to discriminate against anyone because of sex, gender identity, sexual orientation, intersex status, or relationship status in all of Australia, including New South Wales. Under the SDA, it is illegal to sexually harass any individual as it is considered a form of discrimination. It is also unlawful to enable a perpetrator of sexual harassment, and employers can be held responsible for incidents occurring in their institutions.
SDA Jurisdiction
The SDA protects people from direct and indirect sexual harassment in public areas. Public areas include schools, employment, educational institutions, and governmental and non-governmental organisations. Employers have a vested responsibility to ensure their workplaces are free from sexual harassment and may be held responsible for any incidents of sexual harassment.
Sexual Offences Under Australian Law
Some sexual behaviour counts as a criminal offence under Australian sexual harassment law. Examples include intercourse without consent and aggravated assault. At James & Jaramillo, we have extensive experience working with sexual crimes and can provide legal advice. The most common sexual offences related to harassment are the following:
Sexual Touching and Indecent Assault
Sexual touching is an offence under s61KC of the Crimes Act 1900 (NSW) and incurs five years of imprisonment. The prosecution must prove beyond reasonable doubt that touching occurred and was not consensual.
Filming a Person Without Consent
Under Section 91L of the Crimes Act 1900 (NSW), it is illegal to film a person’s genitalia for gratification. If found guilty, an offender may receive a fine of up to $11,000 and two years of imprisonment.
What To Do If You Have Been Charged With Sexual Harassment
The most crucial action to take is learning your rights. Reading this article is an excellent place to start, but you need to be proactive. If you’ve been charged with sexual harassment, you need expert legal representation from someone whom you can trust.
Being charged with harassment will go beyond imprisonment. If you don’t act quickly, you could lose employment over these allegations.
Obtain Expert Legal Advice
We pride ourselves on our expertise and client care, regardless of your circumstances. If you have been accused of sexual harassment in New South Wales, we can suggest the best recourse and protect you from further harm.
Maintaining Contact
Remember that any interaction between the defendant and plaintiff is eligible to be used in court. As such situations can quickly become heated, it is best to keep distance between both parties unless necessary. Your legal counsel will advise you and handle any necessary negotiations, protecting you from further libel or harm.
What To Do If You Have Been Sexually Harassed
If you have been sexually harassed, gather evidence of the crime and inform yourself of your rights. There are several avenues of recourse.
Contact a Competent Lawyer for a Free Consultation
If you believe you have been charged or accused of sexual harassment, call J&J today for expert legal advice regarding your case.
Go to Court
If you cannot resolve your complaint, you may take the defendant to court and seek legal compensation. If found guilty, the defendant may face prison time and fines.
Maintaining Contact
Many situations are easily resolvable with a calm and respectful conversation.
However, when a complaint is ignored, and a perpetrator continues to violate boundaries, it is preferable to seek legal recourse.
Defences
If you are a victim of sexual harassment, you may be eligible for specific legal protective measures.
Conciliation Agreement
As the result of conciliation with the Human Rights Commission, a plaintiff may receive financial compensation from the defendant.
Apprehended Violence Order (AVO)
Under Section 15A of the Crimes Act 1900 (NSW), individuals are entitled to protection against violence, harassment, and intimidation. Australian courts distinguish domestic and personal situations depending on the victim’s relationship with the perpetrator. Such protections prohibit the defendant from interacting with the plaintiff under penalty of imprisonment and fine.
Penalties
A defendant may receive penalties for their actions from the government or private institution involved.
Termination or Internal Measures (Employment Decision)
Defendants may face the consequences in their workplace, such as suspension of privileges or work time and termination (employment law).
Conciliation Measures
As the result of conciliation with the Human Rights Commission, defendants may agree to pay the plaintiff and accept other measures (such as limited contact, written apologies, etc.).
Imprisonment and Fines
Under Australian sexual harassment law, the defendant may be responsible for paying a fine. If the crime constitutes a sex offense (see the previous section), the defendant may face up to 14 years of prison time.
Preventing Sexual Harassment
These are the key points to preventing sexual harassment when sexual harassment occurs:
Understanding Consent
The Australian legal system’s conception of consent has significantly evolved in recent years. Section 61HE of the SDA conceives of “positive consent—” as opposed to negative consent, or simply the absence of resistance. Positive consent means that:
- There is a fee agreement between two or more parties with no coercion or manipulation.
- All individuals explicitly express and demonstrate their willingness to participate (thus, not saying “no” does not constitute consent).
Implementing Prevention Measures
All employers should protect against an offensive work environment & ensure a safe environment for their employees by implementing anti-harassment training and procedures for dealing with internal complaints. The HRC provides a code of practice for employers and recommends strategies for internal complaints.
Know Your Rights and Educate Others
Arm yourself with information. Educate yourself and others on sexual harassment law and sexual harassment claims. If you have been accused of sexual harassment in the workplace or any of the types of sexual harassment mentioned above, please do not hesitate to contact us at JJ Lawyers. You can contact us anytime for a free legal consultation.
