Now more than ever, people are being investigated and charged related to sexual harassment activity, whether it be in the workplace or otherwise.
With the #MeToo hashtag movement in full swing, law enforcement and prosecutors across LA County and across the country, are evaluating whether to file criminal charges against people who are accused of doing certain sexual harassment- related activities.
In criminal defense, sexual harassment is really not a term that is typically used. This term is used in civil suits and in a civil context as far as the workforce goes, where people in authority are using their position of authority to do sexually motivated activities towards others and take advantage of their position of authority.
Obviously, this has now come to the forefront and many people are being investigated and prosecuted for sex-related offenses under the umbrella of the sexual harassment context.
When is a Situation Criminal in a Sexual Harassment Context v. Civil?
Many of these cases that we're seeing on the news right now are going to be dealt with, if at all, in a civil context – meaning lawyers are going to be hired and people are going to be sued for their sexual harassment in the workplace on various different levels.
This doesn't necessarily mean that a criminal charge will be filed. In order for a criminal charge to be filed in a sexual harassment context, someone is going to actually have to engage in some sort of criminal activity. For example, if they committed a sexual battery against another person, Penal Code Section 243.4 – which is a harmful or offensive touching in a sexual context – this could be charged at the criminal level.
Someone convicted of a sexual battery could be forced to register as a sex offender and could be placed in jail for their activities depending on what the circumstances were of the sexual touching. When you talk about these sex-based defenses, you also want to look at whether or not the situation is a misdemeanor or a felony.
Most times, if somebody's touching somebody in an inappropriate manner, it doesn't involve any penetration, the person has no criminal record – it's usually going to be charged as a misdemeanor.
In order to be charged as a felony, the context would have to be much more serious – there had to be some sort of penetration. Obviously, if a child is involved, or if the person has a prior criminal record, it's more likely to be charged as a felony.
So, the dividing line between felony and misdemeanor as it relates to sex offenses – sexual harassment, sexual touching – really seems to be the serious level of what is done, the context of the violation and how bad the sexual harassment and sexual touching is in the workforce or otherwise.
Los Angeles County District Attorney's Office Has a Sexual Harassment Unit
It's already been reported by the news that the Los Angeles County District Attorney's office has opened up a special unit to deal with these sexual harassment-type cases.
When they deal with them, they will not be dealt with under the context of sexual harassment, they're going to be dealt with under the context of whether or not this is an actual sexual offense.
This is going to require some sort of touching, some sort of force, threat, inducement by the target of the criminal investigation related to another person.
If the District Attorney's office believes that somebody committed some sort of sex offense, they will certainly prosecute that person, but obviously they're going to have to be able to put that sex offense under some sort of a Penal Code violation or they're not going to be able to successfully prosecute it.
Another issue that they're probably going to be running into is that the age of the sexual touching could go outside of the Statute of Limitations and therefore, they will not be able to prosecute it.
So, when they sit down with victims of sex offenses, people who are involved with sexual harassment, or some sort of sexual act by another person, they're going to be looking at when it occurred, do they let law enforcement know about it, who did they tell about it, how old were they when it occurred, and a whole host of other factors in deciding whether or not they're actually going to consider charging a criminal offense in a sexual harassment scenario.
If you are under investigation for some sort of a sexual harassment or sex offense related to workplace or any other context, obviously you should get with a criminal defense attorney immediately and let them know what happened.
Anything you say will be protected under the cloak of the attorney-client privilege and then let your attorney advise you. Use their experience of having dealt with these types of cases and let them be in contact with law enforcement and the prosecutors and that way you don't say or do anything that hurts your position.