Основание и критерии криминализации сексуального домогательства в сфере трудовых отношений

Lex Russica (Русский закон). 2019. № 10. С. 161–174.

Arzamastsev M. V.

Sexual harassment in the workplace has now become a significant social problem and, as a result, criminal legislation in many countries has included provisions prohibiting it. In our country, despite the change in moral standards of permitted forms of sexual behavior, the legislator has not yet implemented the requirements of the Council of Europe Convention On preventing and combating violence against women and domestic violence (CETS No. 210) (Istanbul Convention). The existing system of criminal law prohibitions does not effectively protect the individual from sexual harassment committed in the sphere of labor relations. Among the varieties of such acts not prohibited by the criminal law the author names the inducement to the actions of a sexual nature (associated with not the use of service dependencies, but regular contacts within the framework of labor relations); physical contact (touch), not conditioned by the nature or content of work, while not forming signs of sexual assault and causing physical pain; verbal or nonverbal abuse of a sexual nature; sexual harassment (harassment); other mental effects of a sexual nature. As shown by the analysis, these forms of deviant behavior has sufficient social danger, and the relative prevalence for their criminalization. The minimum harm from sexual harassment in the workplace is the negative impact on the psyche of the victim (both women and men), the degree of such impact due to the long-term nature of the labor realtions also becomes quite significant. In order to prevent excessive criminalization and reduce the risk of unjustified criminal prosecution, it is proposed to introduce a ban with the so called administrative prejudice, which implies the incurrence of administrative responsibility for sexual harassment in the workplace, and incurrence of criminal one — only for repeated actions of a person previously subjected to administrative punishment.

Keywords: трудовые отношения, уголовная политика, криминализация, criminal policy, criminalization, сексуальные преступления, sex crimes, sexual harassment, labor relations, public danger acts, сексуальные домогательства, общественная опасность деяния