One day he planted a kiss on her lips. Another day, he stroked her leg, or her hair. On one occasion, the pharmacist hugged another of his female workers without her consent. Despite their complaints, he also smacked them on the backside. And he wrote them letters: “I dream of the touch of your skin, with its color, its perfume,” he wrote to one of his employees. To the other: “You are the woman of my life.”
The two Madrid pharmacy workers made a complaint to police accusing their employer of sexual harassment. He was sentenced to three months in prison and ordered to pay compensation of more than 11,000 euros. But the provincial High Court of Madrid has overturned the ruling on the understanding that there was no sexual harassment, but sexual abuse. That’s a more serious crime, but one that the pharmacist was not accused of, and therefore cannot be tried for.
Article 184 of the Penal Code considers harassment to be: “One who requests favors of a sexual nature, continual or habitual, in the sphere of the workplace, through such behavior creating a hostile and intimidating situation for the victim.”
The magistrates opined that the actions detailed in the women’s complaint did not meet this criteria, nor that the pharmacist’s behavior supposed the proposition of a sexual relationship, but the “realization of actions of a sexual nature.”
In the ruling, the magistrates stated that the only implicit sexual proposition occurred when the accused asked one of his workers to accompany him to a hotel “to have a nap.” The three-judge panel ruled that the pharmacist proposed a “sentimental relationship” to both women, but that they could not affirm that this proposal “had the character of a proposition of an unequivocal sexual relationship.”
Ángela Cerrillos, a lawyer and president of the women’s jurist association Themis, does not agree with the sentence. “Asking a women to go for a nap is not a sexual proposition? Subliminally he is saying, ‘Let’s go to bed’.” Cerrillos has criticized the court for suppressing the decision of a lower court that the accused made these suggestions to “satisfy his libidinous desires.” The higher court also suppressed another piece of accepted evidence that the employer “treated them despotically at work for a period of some time.”
Glenys de Jesús, director of the Observatory of Gender and Justice at Women’s link, believes the ruling is “discriminatory.”
“[The magistrates] invent a difference between propositions of sexual and sentimental relationships, while removing the sexual component of things, like touching a woman’s backside. Furthermore, there is a situation of subordination, intimidation, and hostility. He was their boss and he made these proposals from a position of power.”
Julian Ríos, professor of Penal Law at the Pontifical University of Comillas, says that the law is very clear and the sentence judicially bound. “At the colloquial level these actions can be defined as sexual harassment, but legally it is not the case. It needs to be proven that a situation of serious intimidation, hostility and humiliation has been caused, and the nature of the actions were purely sexual. If these requirements are not met, it is not harassment.”
The two women opted to take the case to the criminal court. Through employment law channels the concept of harassment is broader but the statute of limitations is one year — the incidents took place 10 years ago.