On December 19, a new article introducing administrative liability for sexual harassment was introduced into the Code of Ukraine on Administrative Offenses (ACOC). This step became important to strengthen the legal protection of citizens against any form of humiliation or abuse related to sexual harassment. The legislative changes cover a variety of forms of harassment, including offensive words, gestures, body movements and even sexually explicit text messages.
Lawyers of the “Repeshko and Partners” Bar Association comment on what exactly the new article of the ALCA stipulates, what actions fall under the definition of sexual harassment and how it will affect the everyday life of citizens. Experts will explain how the legislative innovation will work and what rights the victims have.
On December 19, 2024, the previously announced changes to the Code of Ukraine on Administrative Offenses (ACOC), which were adopted as part of European integration, entered into force. Once, in the 90s, while watching foreign films, we were surprised that many things that happen to women in our country (excessive attention from the boss at work, annoying sexual compliments from a neighbor, etc.) are considered normal. in developed countries, they are not only severely rebuffed, but also punished. A quarter of a century has passed and the corresponding norms have finally appeared in our legislation.
A new Article 173-7 “Sexual Harassment” was added to the Code of Ukraine on Administrative Offenses, which defines this concept and establishes legal responsibility for committing such actions. According to the new article, if a person deliberately commits offensive or humiliating acts of a sexual nature towards another person, which can be manifested both verbally (words) and non-verbally (gestures, body movements), in particular through the use of electronic means of communication, he may be charged with administrative responsibility. This indeed presents a new challenge for the National Police, as it requires a clear response to various forms of sexual harassment, including those carried out in the digital space.
The new article literally provides:
“Sexual harassment, i.e. the intentional commission of offensive, humiliating acts of a sexual nature, expressed verbally or non-verbally (words, gestures, body movements) against a person’s will, including using electronic communications, entails the imposition of a fine of eighty (1,360 hryvnias ) up to one hundred and sixty (2,720 UAH) of tax-free minimum incomes of citizens or public works for the period from twenty to forty hours, or corrective work for a period of up to one month with deduction of twenty percent of earnings.
Repeated within a year of committing a violation provided for in part one of this article, for which a person has already been subject to an administrative fine, as well as committing such a violation against a person who is financially, officially, or otherwise dependent on the offender, shall entail the imposition of a fine of one hundred and sixty (2,720 UAH) up to two hundred and eighty (4,760 UAH) of tax-free minimum incomes of citizens or public works for a period of forty to sixty hours, or corrective labor for a period of one to two months with a deduction of twenty percent of earnings, or administrative arrest for a period of up to fifteen days.”
It should not be forgotten that in the Criminal Code of Ukraine there has been a corresponding Article 153 – Sexual violence for a long time. According to it, the commission of any violent acts of a sexual nature, not related to penetration into the body of another person, without the victim’s voluntary consent (sexual violence) is punishable by imprisonment for up to five years.
Sexual violence committed repeatedly or by a person who previously committed any of the criminal offenses provided for articles 152, 154, 155 of this Code, or committing such acts against a spouse or ex-spouse or another person with whom the offender is (was) in a family or close relationship, or against a person in connection with the performance of an official, professional or public duty by this person, or in relation to a woman who was known to the perpetrator to be pregnant – shall be punished by deprivation of liberty for a term of three to seven years.
At the same time, sexual violence committed by a group of persons is punishable by imprisonment for five to seven years. Actions provided for by the first, second, third or fourth parts of this article, which caused serious consequences, are punishable by imprisonment for a term of ten to fifteen years.
As we can see, in many respects these articles overlap, that is, for the same actions, you can be held both administratively and criminally liable. Practice will show how responsibility will be delimited in the future.
It should be noted that the article on sexual harassment is genderless, and therefore the actions of a man against a man, and a man against a woman, and a woman against a man and a woman against a woman can fall under its influence.
We would like to emphasize that there is no comprehensive list of examples of sexual harassment in the legislation. From practice, it can be: any hugs and/or kisses without permission and consent; any touching of hands, neck, face, head, other exposed parts of the body without permission and consent; any patting, pinching of the buttocks, thighs and/or any other part of the body without permission and consent; laying hands on knees, hips and/or any other part of the body without permission and consent; persistent offers to massage the neck, legs, hands, head, or other parts of the body or direct such massage without permission and consent; requests to expose/show any body parts; sexualized parodies of sex and other acts of a sexual nature, sexually suggestive phone calls and instant messages, sending photos and videos of genitals, and soliciting a woman to send photos or videos of her genitals.
At the international level, there are the Hague Principles on Sexual Violence, which contain the Declaration of Civil Society on Sexual Violence – general guidelines on what makes violence “sexual”. According to this declaration, there is a list of sexual parts of the body, in which, for example, the genitals and breasts are indicated. In some cultures, other parts of the body are also considered sexy: the back, especially the lower back, buttocks, ears, hair, thighs, lips, mouth, neck, pelvis, waist, and wrists. These examples of sexual body parts are indicative and not exhaustive. At a minimum, this list should be oriented, because it is international.
Electronic communication these days includes e-mail, forums, chat rooms, electronic media, online social networks, etc. Communication channels that ensure the functioning of the listed popular types of electronic communication are television, mobile phone, computer, and the Internet. Therefore, any correspondence in any messenger or on the website as if it contains signs of sexual harassment is subject to liability.
The case of sexual harassment will be decided by a court of general jurisdiction (ordinary local), and the judge will decide whether the actions of the person being prosecuted constitute a criminal offense and, if so, what punishment will be assigned to him.
It is necessary to note that the cases under KUPAP have protocol form – that is, the basis for bringing a person to administrative responsibility is the protocol drawn up by the person authorized to do so. In cases of sexual harassment, authorized officials of the National Police have the exclusive right to draw up a protocol. First of all, it will depend on the quality of the prepared protocol whether the court will accept it for consideration and whether it will be possible to prosecute on its basis. It should be noted that no investigation is conducted in cases of bringing a person to administrative responsibility. The police will only accept a statement from the victim, take an explanation from the person accused of sexual harassment, and interview witnesses, if there were any. So, the likelihood that the offender will be brought to justice will depend on the quality of the evidence provided by the victim herself.
To effectively prove the offender’s guilt, you need:
- keep all sent letters, text and audio recordings related to the fact of sexual harassment;
- save screenshots of correspondence in messengers with the possibility of identifying the number with which communication was conducted;
- if there is an opportunity to inconspicuously record a conversation with the offender on a voice recorder, this should be done, or after calling him for a frank conversation, enlist the help of a witness who will be inconspicuously present during this conversation.
As for the age from which responsibility arises. Persons who have reached the age of sixteen at the time of committing an administrative offense are subject to administrative liability.
For the commission of administrative offenses against minors between the ages of sixteen and eighteen, instead of the punishments provided for in the article, the following measures of influence may be applied:
1) the obligation to apologize publicly or in another form to the victim;
2) warning;
3) reprimand or severe reprimand;
4) transfer of a minor to the supervision of parents or persons who replace them, or to the supervision of a pedagogical or labor team with their consent, as well as to individual citizens at their request.
Another important aspect is the period during which prosecution is possible. In the case of sexual harassment, a fine may be imposed no later than three months from the date of the commission of the offense, and in the case of an ongoing offense – no later than three months from the day of its discovery.
The report on an administrative offense must include: the date and place of its drawing up, position, surname, first name, patronymic of the person who drew up the report; information about the person who is brought to administrative responsibility (in case of detection); place, time of commission and essence of the administrative offense; a regulatory act that provides for responsibility for this offense; surnames, addresses of witnesses and victims, surname of the whistleblower (with his written consent), if any; explanation of the person who is brought to administrative responsibility; other information necessary to solve the case. If the offense caused material damage, this is also noted in the report.
The protocol is signed by the person who drew it up and by the person who is brought to administrative responsibility; if there are witnesses and victims, the protocol can be signed by these persons as well.
In case of refusal of the person who is brought to administrative responsibility to sign the protocol, a record of this is made in it. A person who is subject to administrative liability has the right to submit explanations and comments on the contents of the protocol, which are attached to the protocol, as well as to state the reasons for refusing to sign it.
When drawing up the protocol, the person who is brought to administrative responsibility is explained his rights and obligations, which is noted in the protocol. In order to draw up a protocol on an administrative offense, if it is impossible to draw it up at the place of the offense, if drawing up a protocol is mandatory, the offender may be taken to the police. At the same time, the victim is a person to whom moral, physical or property damage was caused by an administrative offense.
The victim has the right to get acquainted with the materials of the case, to file a petition, to use the legal assistance of a lawyer or another specialist in the field of law during the consideration of the case, who by law has the right to provide legal assistance personally or on behalf of a legal entity, to appeal the resolution in the case of an administrative offense. The victim may be interviewed as a witness.
A lawyer, other specialist in the field of law, who by law has the right to provide legal assistance personally or on behalf of a legal entity, may participate in the consideration of a case on an administrative offense. These persons have the right to familiarize themselves with the case materials; make a request; on behalf of the person who invited him, to file complaints on his behalf against the decision of the body (official) that is considering the case, and also have other rights provided for by the laws of Ukraine.
When considering this case about an administrative offense, the court is obliged to find out: whether an administrative offense was committed, whether this person is guilty of committing it, whether he is subject to administrative responsibility, whether there are circumstances mitigating and aggravating responsibility, whether property damage was caused damage, whether there are grounds for transferring materials about an administrative offense for consideration by a public organization, a labor team, as well as find out other circumstances that are important for the correct decision of the case.
We emphasize once again that the fate of the offender will depend on the quality and quantity of the evidence provided. Of course, the neighbor can turn to the police with a statement that Vasyl, the neighbor, dragged her into a dark corner of the entrance, groped her all over, and at the same time told her something that made her ears wither. But when it comes down to it, it is more likely that Vasyl will deny everything, and therefore word for word – so we have nothing.
We will see how the practice will develop in the future, but in any case, until it is worked out according to this article, one must be as attentive as possible to the drafting of the protocol itself and to the evidence provided
