Sexual harassment: new formula

Sexual harassment: new formula

Passed unanimously by the National Assembly, the law of August 6, 2012 on sexual harassment comes meet the constitutional requirements of may 2012: decryption.

■ context.-Act No. 2012-954 6 August 2012 relative to sexual harassment - published in the Official Journal 7 August 2012 - follows the decision of censorship of the Constitutional Council of article 222-33 of the penal Code which defined and penalized the harassment sexual (Cons) const., may 4, 2012, decis. No. 2012-240-QPC. Issue in its last edition, Act No. 2002-73 of 17 January 2002, the definition of incrimination infringed the principle of legality of offences and penalties, in that it allowed that the offence of sexual harassment be punishable without that the constituent elements of the offence are sufficiently defined. The text intended way deficient sexual harassment as "the fact to harass others for the purpose of obtaining favours of a sexual nature". Article 222-33 of the penal Code was repealed with immediate effect resulting in the cancellation of all ongoing procedures and ban to commence new proceedings on this basis.

■ Definition and punishment - the new text of criminality was adopted, under the conditions provided for in article 45, paragraph 3, of the Constitution (expedited procedure), July 31. Now, in its new drafting, article 222-33 of the penal Code incriminates the facts of sexual harassment by two terms:

I. - The fact of imposing on a person, repeatedly, words or behaviour in sexual connotation that is bear dignity as being degrading or humiliating or create an intimidating, hostile or offensive situation against him.

II. - The fact, even if not repeated, to use any form of serious pressure, for the purpose of actual or apparent to obtain an act of a sexual nature, that it is sought for the benefit of the author of facts or the benefit of a third party.

The new provisions give a definition, certainly more accurate but also more complex than in the past of the offence of sexual harassment. Pending receipt of the texts by the jurisprudence, a circular of August 7, 2012 (CIRC CRIM No. 2012-15 / E8, 7 August 2012: Nor: juice D 1231944 C) presents the meaning and scope.

The penalties incurred are also modified. Harasser is now liable to two years ' imprisonment and 30 000 euro fine. These sentences are brought to three years ' imprisonment and 45,000 euro fine when the facts are committed:

(1) By a person who abuses the authority conferred on it by its functions;

2 ° On a minor of 15 years;

(3) On a person whose particular vulnerability, due to his age, illness, disability, physical or mental disability or a State of pregnancy, is apparent or known to the perpetrator;

4 ° On a person whose particular vulnerability or dependence resulting from the precariousness of his economic or social situation is apparent or known to the perpetrator;

5 ° By several persons acting as an author or accomplice.

It should be noted that additional sentences which were previously provided remain incurred in application of the unchanged provisions of the penal Code (c. pen., s. 222-44 and s.).

■ Application in time. -It also be recalled that these new provisions, the more severe nature, can obviously be applied retroactively to acts committed before the entry into force of the new law.

■ Labour Code. -At the same time, the principle of the prohibition of sexual harassment against employees is recalled by article l. 1153-1 of the Labour Code and the new definition is repeated both in the Code of labour and in Act No. 83-634 of 13 July 1983 on the rights and obligations of civil servants.

■ moral harassment and discrimination - the Act of 6 August 2012 introduced in addition to other changes. It will be as a main those of moral harassment and discrimination.

With respect to the harassment, the penalties incurred are aligned on those incurred for sexual harassment, either two years ' imprisonment and 30,000 euro fine (instead of one year's imprisonment and 15,000 euro fine). In addition, the harassment in labour relations is now only sanctioned by the provisions of article 222-33-2 of the penal Code and by article l. 1155-2 of the Code of the work, the latter repressing now discrimination in the work committed to an employee who has suffered or refused to undergo a moral harassment or who testified on such facts.

Concerning then the discrimination, the new law imposes specific discrimination resulting from the facts of sexual harassment.

Thus, "constitutes discrimination any distinction made between people because they have suffered or refused to be facts of sexual harassment as defined in article 222-33 or testify on such facts, y including, in the case mentioned in the I of the same article, if the words or behaviour have not repeated." The penalties incurred are of three years ' imprisonment and 45,000 euro fine (c. pen., s. 225-1-1 new) if they are committed by an individual and five of imprisonment and 75,000 euro fine (c. pen., s. 432-7) if they are committed by a public official. The facts of discrimination provided for by the Code of labour (c. Trav. art.) L. 1152-2, l. 1153-2 and l. 1153-3), when they are committed as a result of an offence of harassment or sexual, are punished by a term of imprisonment of one year and a fine of 3 750 euros (c. Trav., art.) L. 1155-2).

■ identity. sexual - Finally, article 225-1 of the penal Code which lists the prohibited grounds of discrimination is enriched with a new concept: sexual identity. Now, next can be discrimination committed because of the sexual orientation of the victim, find those that are committed because of her sexual identity. The goal of the legislature is to make more explicit the fact that these provisions apply not only to gay people, but also transsexuals or transgender.

The sexual harassment Act No. 2012-954 August 6, 2012

References

■ Cons. const., may 4, 2012, decis. No. 2012-240-QPC, Dalloz news student may 9, 2012.

■ penal Code

Article 222-33

"I.-sexual harassment is to impose on a person, repeatedly, in the comments or conduct sexual nature that affect his dignity as being degrading or humiliating, either create an intimidating, hostile or offensive situation against him.".

II. - is related to sexual harassment because, even non-repeated, to use any kind of serious pressure in the real or apparent purpose of obtaining an act of a sexual nature, that it is sought for the benefit of the author of the facts or the benefit of a third party.

III. - The facts mentioned in the I and II are liable to two years imprisonment and 30 €000 fine.

These sentences are brought to three years ' imprisonment and 45 €000 fine when the facts are committed:

(1) By a person who abuses the authority conferred on it by its functions;

2 ° On a minor of 15 years;

(3) On a person whose particular vulnerability, due to his age, illness, disability, physical or mental disability or a State of pregnancy, is apparent or known to the perpetrator;

4 ° On a person whose particular vulnerability or dependence resulting from the precariousness of his economic or social situation is apparent or known to the perpetrator;

5 ° By several persons acting as an author or accomplice. »

Article 222-33-2

"To harass others by acts repeated with the object or effect a degradation of working conditions likely to infringe his rights and his dignity, to alter her physical or mental health or jeopardize his professional future, is punished by two years imprisonment and €30,000 fine.".

Article 225-1

"Constitutes discrimination any distinction made between individuals at their origin, their sex, their family status, pregnancy, their physical appearance, their surname of their State of health, their disability, their genetic characteristics of their character, their orientation or gender identity, age, political opinion".of their trade union activities, membership or their non, real or supposed, to an ethnic group, a nation, a race or a religion determined.

Also constitutes discrimination any distinction between legal persons at the origin, sex, family status, physical appearance, of the name of the State of health, disability, genetic characteristics, morals, orientation or gender identity, age, political opinion, trade union activities, affiliation or non, real or supposed, to an ethnic groupa nation, a race or a religion determined members or members of those corporations. »

Article 225-1-1

"Constitutes discrimination any distinction made between people because they have suffered or refused to be facts of sexual harassment as defined in article 222-33 or evidence of such facts, y including, in the case mentioned in the I of the same article, if the words or behaviour have not repeated."

Article 225-2

"The discrimination defined in articles 225-1 and 225-1-1, a natural or legal person is punishable by three years imprisonment and 45,000 euro fine when it is:

1 ° To refuse the supply of a good or service;

2 ° To interfere with the normal exercise of an economic activity;

(3) To refuse to hire, punishing or dismissing a person;

4 ° To subordinate the provision of a good or service to a condition based on one of the elements referred to in article 225-1 or under article 225-1-1;

5 ° To make a job offer, an internship application or a period of training in a company to a condition based on one of the elements referred to in article 225-1 or under article 225-1-1;

6 ° To refuse to accept a person to one of the courses covered by 2 ° of article l. 412 - 8 of the code of social security.

When the discriminatory refusal provided for in (1) is committed in a welcoming place to the public or in order to deny access, sentences are brought to five years ' imprisonment and 75,000 euro fine. »

Article 432-7

"Discrimination defined in articles 225-1 and 225-1-1, committed on a person or entity by a person Authority public or charged with a public service mission, in the exercise or in the performance of his duties or his mission, is punishable by five years imprisonment and 75,000 euro fine where it is."

(1) To deny the benefit of a right granted by law;

2 ° To interfere with the normal exercise of an economic activity any. »

■Labour Code

Article 1152-2

"No employees, no person in training or internship may be sanctioned, licensed or subject measure discrimination, direct or indirect, including compensation, training, reclassification, assignment, qualification, classification, professional promotion, transfer or contract renewal for sustained or refused to undergo repeated harassment acts or to have evidence of such actions or have reported."

Article 1153-1

"No employees must undergo facts."

1 ° To sexual harassment, by words or sexual behaviour repeated that is infringed his dignity as being degrading or humiliating, or create against a situation intimidating, hostile or offensive;

2 ° Be assimilated to sexual harassment, consisting of any form of pressure severe, even non-repeated, exercised the purpose real or apparent to obtain an act of sexual nature, as this is research for the benefit of the author of the facts or the benefit of a third party. »

Article 1153-2

"No employees, no person training or internship, no candidate recruitment, training or company training may be sanctioned, dismissed or be a measure discrimination, direct or indirect, including compensation, training, reclassification, assignment, qualification, classification, professional promotion, mutation or renewal of contract to have suffered or refused to be facts of sexual harassment as defined in article l. 1153-1"., including, in the case referred to in (1) of the same article, if the words or behaviour were not repeated. »

Article 1153-3

"No employees, no training or internship person may be sanctioned, dismissed or be subject to discrimination for having testified to facts of sexual harassment or have reported."

Article l. 1155-2

"Shall be sentenced to one year imprisonment and a fine of €3,750 the facts of discrimination committed on a moral or sexual harassment defined in articles l. 1152-2, l. 1153-2 and l. 1153-3 of this code.".

The Court may also order, as a supplementary penalty, the display of the judgment at the expense of the convicted person in the conditions provided for in article 131-35 of the penal code and its insertion, full or excerpts in newspapers that it refers. These costs may not exceed the maximum amount of the fine incurred. »

■ Article 45 of the Constitution of 1958

"Any project or Bill is considered successively in two meetings of the Parliament for the adoption of an identical text.". Without prejudice to the application of articles 40 and 41, any amendment is admissible on first reading as it presents a link, even indirect, with the text submitted or transmitted.

When, as a result of a disagreement between the two assemblies, a project or a legislative proposal could not be adopted after two readings by each Assembly or, if the Government decided to initiate the accelerated procedure without that Conference of presidents were to be jointly opposed, after a single reading by each of them, the Prime Minister or, for a legislative proposalthe presidents of both Chambers acting jointly, have the ability to provoke the meeting of a joint mixed commission to propose a text on the provisions remaining in discussion.

The text drawn up by the joint commission may be submitted by the Government for approval to the two assemblies. No amendment is admissible except agreement of the Government.

If the Joint Committee does not to the adoption of a joint text or if this text is not adopted under the conditions prescribed in the preceding paragraph, the Government may, after a new reading by the National Assembly and the Senate, asked the National Assembly to decide definitively. In this case, the National Assembly can resume either the text developed by the joint commission, or the final vote text, amended where appropriate by one or more of the amendments adopted by the Senate. »

Author: C. L.

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