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A whiff of the past

The Madrid High Court’s interpretation of sexual harassment leaves women defenseless

The Provincial High Court of Madrid has ruled that kissing female employees on the lips, caressing their buttocks and writing them letters openly expressing sexual desire does not constitute a crime of sexual harassment, but rather, one of misconduct, at most. Nor are such things, in this case involving two female employees, indicative of an employer’s intention to harass. With such arguments, the court acquitted the employer, a pharmacist, who thus escapes any penal sanction.

This is a ruling that defines the crime of harassment with requisites so strict that it leaves the woman defenseless, and her persecutor unpunished. If the Supreme Court does not repudiate the doctrine this lower court has transmitted, it may well lead to the use of expressions as vexatious and even criminal against women as that lately uttered by a top official of the ruling Popular Party, who, apparently in jest, remarked that “laws are like women — they are there to be violated.”

The pharmacist, who has now been acquitted by the High Court of Madrid, which considers the facts of the case proven, had previously been convicted by a court in Alcalá de Henares to three months and two days’ imprisonment, and ordered to pay the employees 11,200 euros in compensation. The High Court considers that the employer’s behavior does not fit the crime of harassment, in spite of the fact that, among his more explicit manifestations of sexual desire, he proposed to his employees that they enjoy a siesta together in a hotel. Nor, in spite of considering it proven that the pharmacist suggested to the women that they have amorous relations, does it consider that this attitude “attains the character of a serious or unmistakable proposition of sexual relations.”

Despotic employers

If the proposal to go to bed in a hotel, albeit merely to enjoy a siesta, is not considered sexual harassment, it must be asked of these judges what they understand to be normal labor relations between employer and employee, particularly when, in this case, the negative reply to such proposals was followed by a demotion of these women in the workplace, and by despotic treatment.

Quite apart from the debate on the limits and definition of the crime of harassment, the argumentative smell of the ruling takes us back to times we thought we had left behind us, when the impunity of the harassing employer was sustained in terms of the supposedly provocative character of the miniskirt, or when the rapist was acquitted because the woman had not resisted to the point of martyrdom.

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