What is the difference?

To differentiate sexual harassment and sexual assault can be challenging. Due to the scope of both crimes an individual may be a victim of both. Therefore, it is important to understand the difference and what options are available to bring both crimes to justice. 

Additionally, depending on the circumstance a victim of sexual harassment and assault may choose to deal with their matter civilly or criminally. This article will break down the differences and highlight appropriate case law as contemporary examples. 

Sexual Harassment  

One in five people have experienced sexual harassment at work in the past 5 years.

Sexual harassment is more general and fluid with its requirements. It can include any sort of sexual conduct (including verbal, written, or physical) that has made the affected party upset, humiliated, or afraid. There does not have to be any intention behind the act, and it only has to happen once, but often happens over multiple instances. 

Furthermore, the act must be unwelcome by the affected party. Sexual harassment is usually discussed within the scope of a workplace, but can be done though all areas of life. 

Some examples can include but are not limited to:

• Derogatory comments – calling a person a “slut” or similar.
• Unwelcome touching – can be in the form of an unsolicited hug, touching of intimate areas, etc,.
• Making sexual jokes at someone’s expense.
• Asking or insinuating sexual favours. 

Sexual harassment is governed by some of the following laws: 

• Equal Opportunity Act 2010; This Act is state dependant and all states have their own sexual harassment legislation, and all are almost identical in their legislation
• Sex Discrimination Act 1984 (Cth); Sexual harassent is considered a form of discrimination on the basis of sex. Often a case 
• Fair Work Act 2009 (Cth): This Act is specific to sexual harassment in the workplace and is most referred to within Fair Work claims. 

Sexual harassment is typically dealt with through civil or common law streams, such as a tribunal, Equal Opportunity Commission, or Fair Work Commision. These institutions provide a space to facilitate the conversation between parties and help come to a mutual resolution. 

If there is no mutual resolution, on some occasions there may be an opportunity to have a judge (or someone equivalent) make a final binding decision. Financial compensation is the most common remedy and there is no possibility of a criminal record or anything related to a criminal charge. 

Aspects of sexual harassment may constitute a criminal offense, such as stalking, indecent exposure, and sexual assault. In which a victim may choose to also charge the perpetrator with a criminal offence if appropriate. 

While we have a number of sexual harassment case law on our website spanning a variety of circumstances, here are a few more that highlight key elements.

 

Richardson v Oracle

Richard v Oracle was a landmark sexual harassment case as it revolutionised how institutions calculated damages. Ms Rebecca Richardon was a consulting manager and employee of Oracle Corporation Australia. Who had brought a claim of sexual harassment against her coworker, Mr Randol Tucker. From April until November 2008, Ms Richardson claimed he was the victim  of eleven sexual harassment insidents from Mr Tucker. 

Saying comments such as: 

• “So Rebecca, how do you think our marriage was? I bet the sex was hot“
• “Gosh, it’s a good thing you didn’t come out [to a work function after party] because I think if I were drinking with you I would wind up in the corner with my arms around you kissing you“
• “We should go away for a dirty weekend sometime“

More comments were said and Ms Richardon was often humiliated as these comments were said in front of other coworkers. 

Ms Richardson complained to the Company and an investigation was completed. For the four weeks the investigation lasted Ms Richardson was forced to keep communicating with Mr Tucker in order to complete her job requirements. However, she had requested for alternative means, which were not approved. In the end Mr Tucker received a first and final warning. 

Ms Richardon was forced to resign as she had suffered psychological and emotional distress, and she was diagnosed with a chronic adjustment disorder with anxiety and depression. Also resulting in a breakdown of her relationship with her partner. She did eventually lodge a claim against Oracle in the Federal Court. Claiming that they were vicariously liable for discrimination, victimisation, and the sexual harassment she had suffered. 

Training packages were not sufficient material

The Court had supported Ms Richardson and found that Mr Tucker did sexually harass her. Additionally, the Court found that Oracle were vicariously liable for the sexual harassment as their training packages were not sufficient material. There was no reference to sexual harassment legislation, that it was unlawful, or of Oracle’s responsibility to take reasonable steps to prevent unlawful acts at work. 

Ms Richardon was awarded $18,000 in damages. However, she had appealed that decision as she felt the damages were manifestly inadequate. She was able to appeal the decision on three grounds. Including loss of wages, the appellate judge agreed that the damages were not reflective of Ms Richardon’s circumstance. She was awarded $100,000 for pain and suffering. Alongside $30,000 for loss of wages. 

This case revolutionised how damages were calculated for victims of sexual harassment. Additionally, it showcases common elements of sexual harassment. That there were unwelcome sexual acts, including comments and sexual jokes, the victim felt humiliated and upset by the conduct, she suffered a significant detriment, and she had pursued a civil claim. While not all of these are formal requirements of sexual harassment, they do reflect a typical sexual harassment life cycle. 

Sexual Assault 

According to the Queensland Department of Justice, 22% of women have experienced sexual violence sine the age of 15.

Sexual assault is when someone uses force (either physical or emotionally) to either sexually touch another person or force another person to do sexual acts without their consent. Sexual assault does typically include a physical component that is conducted or attempted. This could include touching a person or forcing the person to do sexual acts on the perpetrator. Rape is the most extreme example of sexual assault. 

However, physical touch is not a formal requirement. The bottom line is that force was used to make a person behave in a sexual manner without their consent. A non-physical example includes forcing an individual to watch pornography. 

It can be difficult to distinguish sexual harassment from sexual assault or vice versa. They both have similar elements of unwelcome sexual conduct or behaviour. The easiest way to distinguish the two is considering whether force and a lack of consent was involved. While both crimes may have occurred, one may be more appropriate than the other. Sexual assault is more specific than sexual harassment and typically more pursued when available. 

The criminal process is significantly different from civil matters

Unlike sexual harassment, sexual assault is more commonly dealt with through a criminal court procedure. In which case it will be legislated under the Crimes Act 1958 (Cth). The criminal process is significantly different from civil matters. Sexual assault is an indictable (serious) offense that will be investigated and police are involved. If the perpetrator is found guilty then they will be charged with a crime that is placed on their record. 

The perpetrator will face some kind of sanction, whether to pay damages, undergo a community corrections order, or imprisonment. Furthermore, the standard of proof is significantly higher in criminal matters, being beyond reasonable doubt. There can be no doubt that the perpetrator had committed sexual assault. 

A victim may also choose to pursue the claim as a civil matter. Typically done to receive compensation for psychological or physical damage, pain and suffering, and a loss of earning or medical costs. 

Discrimination 

Due to the high rates of sexual based crimes against women, sometimes sexual harassment and sexual assault can be considered a form of discrimination. Specifically discrimination on the basis of sex. That the reason for someone being the victim of sexual harassment is specifically because of their gender, more often due to being a women. Meaning that women are treated worse and less favourably due to their gender. 

This may be a further consideration when considering bringing forth a perpetrator to justice. There are a plethora of pathways that can be strategised. Typically claims involving discrimination or a civil claim. Therefore, the end goal is some form of financial compensation. 

What is my employer doing to protect me?

In recent years there has been reform to provide greater safety to employees and greater accountability against employers. This means that employers are legally bound to implement policies and procedures that prevent unlawful behaviour. Including behaviour resulting in sexual harassment and discrimination. 

This may look like additional training, more thorough policies, and greater internal avenues for communication and risk management if any sexual or discriminatory behaviour has happened in the workplace. 

Sexual harassment, assault, and discrimination are usually not single random incidents that happen in te workplace. Respect@Work have highlighted that these types of issues are related to workplace culture and a wider more intangible issue. Not the actions of a single individual. That is why it is imperative that there are entire company wide incentives to prevent unlawful behaviour. We know that targeting individuals after the act has happened is not going to prevent further sexual and discriminatory acts. 

How can I protect myself? 

There needs to be accountability amongst staff members as well. Particularly for large companies. If employees see or hear something concerning then it should be brought to the company’s attention to be investigated. This can be through a manager, human resources, or other types of supervisory staff. 

This does not have to just relate to strictly sexual harassment or assault. This can include rude jokes, dismantling patriarchial comments, or calling out people for assuming stereotypes such as “men can’t be sexually harassed”. To dismantle workplace harassment there needs to be a safe workplace culture. And one that will keep each other accountable and protected.

Conclusion to: Sexual Assault and harassment at Work

Overall there are quite a few similarities and differences between sexual harassment and assault. Both revolve around the notion of forcing someone to experience something sexual without their consent. Making the victim feel upset or afraid. 

The difference is the context that each crime would be most likely to appear in. Sexual harassment is more commonly related to civil law and seeking some type of financial compensation. Whereas sexual assault is more related to criminal law and seeking for the perpetrator to be criminally charged. 

There are currently legislations in place to help protect employees from any unlawful activity. Enforces that an employer must implement safety procedures. Therefore,  employees can now think to their own employer and engage whether they have implemented the required positive steps to prevent sexual harassment in their workplace. Been unfair dismissed, forced to resign, or involved in a workplace investigation over the issues in this article or workplace issue call us immediatly.

Call us for advice on 1800 333 666, its free, prompt and confidential

Articles similar to: Sexual Assault and harassment at Work

Why are women unappreciated and poorly paid

Workplace mental health look after yourself