The #MeToo movement of the last year has spawned a renewed determination among women not to tolerate sexual abuse, indecent assault or sexual harassment. Female celebrities have publicly called out the sexual misconduct of high profile males and millions of women everywhere have used the #MeToo hashtag to draw attention to the prevalence of this behaviour.
But this movement has a tendency to conflate several very different categories of behaviour under a single rubric. Within the broad categories of sexual assault and sexual harassment are a number of distinct behaviours with different legal consequences. This article will seek to clarify some of the distinctions this movement has at times unintentionally obscured.
The use of the hashtag #MeToo as a ‘silence breaker’ on the issue of women’s sexual harassment by men was spearheaded by actor Alyssa Milano’s entreaty in October 2017. Milano tweeted ‘If all the women who have been sexually harassed or assaulted wrote ‘Me too.’ as a status, we might give people a sense of the magnitude of the problem.’ The ensuing tsunami of women sharing their experiences of sexual harassment and sexual assault put the spotlight on men’s sexual misconduct to an unprecedented degree. Women in all walks of life came forward with their stories. As well as posting on social media, women spoke out in workplaces, at university and even at the Golden Globe Awards, with Oprah Winfrey heralding the dawn of a new era, in which men cannot get away with sexually abusing women.
This movement, with its inclusive declaration #MeToo, has validated women’s experiences and prompted many to tell their stories. It has acknowledged that sexual misconduct occurs to differing degrees and that all of this behaviour exists along the same spectrum. It has pointed the finger squarely at patriarchy and the male entitlement that flows from it, as being the root cause of all of these problems. Unfortunately, in much of the debate that has followed, the important legal differences between sexual harassment and sexual assault have been overlooked in the desire to embrace a plurality of experiences. Other related terms like indecent assault have been subsumed into the single category of ‘sexual misconduct.’ It’s a good time for a reminder of what some of these terms actually mean.
Sexual harassment refers to any unwelcome sexual advance or sexual conduct (Sex Discrimination Act, Section 28A). It encompasses a broad range of behaviours, including both ‘come ons’ and ‘put downs’, the legality of which depends on the context in which the behaviour occurs. While it may be sexual harassment to make an unwelcome sexual comment to someone in the street, to do so is not an unlawful act. However, to do so to one’s employee is unlawful (Section 28B) and legal consequences such as being suspended or terminated from employment, may follow.
Some actions amounting to sexual harassment are also criminal offences. For example, to touch a woman’s breasts without her consent is both indecent assault and sexual harassment. If a person was criminally charged in relation to such as act, it would be referred to as indecent assault. If the action occurred in a workplace, it would be dealt with as a matter of employment law, as sexual harassment (which would not preclude the victim also seeking to have the matter criminally prosecuted.
Sexual abuse usually refers to the mistreatment of children. Rather than being a distinct criminal offence, it is a general category of behaviour which includes many different offences that can be committed against children, ranging from rape to indecent dealings with a child. The term sexual abuse is generally used when dealing with such matters in a non-criminal context. For example, in Family Law Proceedings, sexual abuse of children by a parent will be grounds for contact with that parent to be suspended.
Sexual assault is a broad legal term, referring to any criminal offence of a sexual nature. This includes rape, indecent assault and child sex offences.
Rape (or sex without consent, as it is called in some jurisdictions) is a serious criminal offence. In most Australian jurisdictions, for this offence to be made out, the victim must have been sexually penetrated without their consent. This penetration may be vaginal, anal or oral. In the Northern Territory the offence of sex without consent can be made out without penetration having occurred.
Consent is defined at law as ‘free agreement.’ A person does not have to have been physically resisting in order to be raped. A person can be found guilty of rape if they coerced another person to have sex through threats, intimidation, or by having sex with the person while they were asleep, unconscious or too drunk to give effective consent.
A person can be found guilty of rape if they knew, or were reckless as to whether, the victim was not consenting.
Indecent assault is one of the most common sexual offences, but perhaps one of the least well known. An indecent assault consists of a common assault accompanied by an act of indecency. It usually involves a person being touched on the breasts, genitals or anus (inside or outside of clothing) without their consent.