Sexual misconduct

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Sexual misconduct is misconduct of a sexual nature which exists on a spectrum [1] that may include a broad range [2] of sexual behaviors considered unwelcome. This includes conduct considered inappropriate on an individual or societal basis of morality, [3] sexual harassment and/or criminal sexual assault.

Contents

However generally, [3] from a purely legal standpoint, sexual misconduct is a "lay term" [3] which represents a boundary that has been broken, dictated by a moral set of conduct, [1] particularly where the situation is normally non-sexual and therefore unusual for sexual behavior, or where there is some aspect of personal power or authority that makes sexual behavior inappropriate. A common theme, and the reason for the term misconduct, is that these violations occur during work or in a situation of a power imbalance (such as sexual harassment). [3]

The alleged misconduct can be of various degrees, such as exposure of genitals, assault, aggressive come-ons, pleading, or even inattentiveness to nonverbal cues of discomfort. [4] The "definition of sexual misconduct is far from clear" and it is a "lay term, sometimes used in institutional policies or by professional bodies", to deal with cases marked by power imbalance, coercion, and predatory behaviour." [5]

Definitions

In the legal sense, for a person in a position of authority it includes in particular any sexual activity between them and one of their subordinates. This commonly includes teachers and their students, clergy and their congregants, doctors and their patients, and employers and their employees. While such activity is usually not explicitly illegal, it is often against professional ethical codes. For example, a teacher may be fired and a doctor may have their medical license revoked because of sexual misconduct. In addition, the person in the subordinate position may allege sexual harassment. The University of Iowa defines sexual misconduct as "...unwelcome behavior of a sexual nature that is committed without consent or by force, intimidation, coercion, or manipulation." [6]

Entering a sexual relationship with a subordinate, even when the contact is initiated by the latter, is considered unethical by some because of the subordinate's vulnerability to the superior and the inequality of power that characterizes the relationship. In the case of the doctor-patient relationship, having a sexual relationship with the patient even after the professional relationship has concluded is considered problematic for the physician because of the potential for the patient's continuing dependence on and transference towards the physician. Therefore, sexual relationships with former patients are considered unethical by the medical profession when physicians "use or exploit the trust, knowledge, emotions or influence derived from the previous professional relationship" in any way. [7] By contrast, legal ethics permit sexual relations with former client and, in California, with current clients as well so long as the sex is consensual and is not rendered in exchange for legal services.

Some activities which are not strictly erotic, e.g. mooning (exposing the buttocks), streaking (running naked through a public area) and skinny dipping (swimming naked), are sometimes also categorized as sexual misconduct. Despite these opinions, others believe that sexual relations in workplace settings is not unethical including between boss and employee.[ citation needed ] Many companies do not prohibit so-called fraternization but instead recognize the difference between consensual dating and improper behavior.

According to Joanne Laucius from the Ottawa Citizen, the "definition of sexual misconduct is far from clear" and the "word 'misconduct' also lacks precision — it can be used as a catch-all for all kinds of behaviour, often obscuring what actually happened". Laucius states that the terms "sexual violence or sexual harassment and assault are much more specific terms that convey the nature of the allegations." [5] Elaine Craig, an associate professor in the Schulich School of Law at Dalhousie University, states that "[s]exual misconduct is a lay term, sometimes used in institutional policies or by professional bodies. It covers an array of problematic sexual behaviour including sexual harassment, sexual assault and sexual abuse. Two of these terms have specific (and different) legal meanings: Sexual assault has a specific meaning in the criminal law context, unlike sexual misconduct, which may cover both criminal and non-criminal conduct." [5]

Elizabeth Sheehy, the Shirley Greenberg Chair for Women and the Legal Profession at the University of Ottawa, states that "[s]exual misconduct is a social issue and not a fixed line—it shifts as women gain access to economic and political equality. It's not found under criminal law, in human rights codes, or collective agreements. It might be found under professional disciplinary codes." [5] She states that "we don't have a consensus on it, either", "...except that there are three key considerations. First, a power imbalance. Second, coercion, whether implicit or explicit. Third, predatory behaviour." [5] Ally Crockford, a public educator at the Ottawa Rape Crisis Centre, states that "[s]exual misconduct is... a catch-all for behaviour that is not OK, but it's unclear how it should be classified. It could be any number of things—someone is made to feel uncomfortable, or they feel they are being watched or looked at in a certain way." [5]

Michelle Cottle wrote in The Atlantic that the "...almost infinite shades of creepy misbehavior on display are challenging the legal and cultural categories used to describe them", as this issue is, in "...some ways, uncharted territory", making it "...hard to tell how the new lines will be drawn, much less where." [8] Cottle states that "[m]illennials and younger Gen Xers seem to have a broader definition of what constitutes harassment as well as less hesitation about discussing their experiences". [8]

Among educators

Suzuki Harunobu - "Sexual Misconduct", from the book Fashionable, Lusty Mane'emon, 1770 Suzuki Harunobu - Sexual Misconduct, From the book Fashionable, Lusty Mane'emon 1770.jpg
Suzuki Harunobu - "Sexual Misconduct", from the book Fashionable, Lusty Mane’emon, 1770

A literature review of educator sexual misconduct published by the US Department of Education found that 9.6% of high school students have experienced some form of sexual misconduct. [9] Black, Hispanic, and Native American Indian children are at greatest risk for sexual abuse. Also at increased risk are children with disabilities; the reason for this may be their greater need for individual attention and their possible problems with communicating. [10]

Children who have been victims of educator sexual misconduct usually have low self-esteem, and they are likely to develop suicidal ideation and depression. Because the abuser was a person the child was encouraged to trust, they may experience a sense of betrayal. [10]

In their 2002 survey, the AAUW reported that, of students who had been harassed, 38% were harassed by teachers or other school employees. One survey that was conducted with psychology students reports that 10% had sexual interactions with their educators; in turn, 13% of educators reported sexual interaction with their students. [11] In a national survey conducted for the American Association of University Women Educational Foundation in 2000, it was found that roughly 290,000 students experienced some sort of physical sexual abuse by a public school employee between 1991 and 2000. A major 2004 study commissioned by the U.S. Department of Education found that nearly 10 percent of U.S. public school students reported having been targeted with sexual attention by school employees. Charol Shakeshaft, a researcher in the field, claimed that sexual abuse in public schools "is likely more than 100 times the abuse by priests." [12]

In 1995, the CDC replicated part of this study with 8,810 students on 138 college campuses. They examined rape only, and did not look at attempted rape. They found that 20% of women and 4% of men had experienced rape in the course of her or his lifetime. [13] [14]

On campuses, it has been found that alcohol is a prevalent issue in regards to sexual assault. It has been estimated that 1 in 5 women experience an assault, and of those women, 50–75% have had either the attacker, the woman, or both, consume alcohol prior to the assault. [15] Not only has it been a factor in the rates of sexual assault on campus, but because of the prevalence, assaults are also being affected specifically by the inability to give consent when intoxicated and bystanders not knowing when to intervene due to their own intoxication or the intoxication of the victim. [15] [16]

A 2007 survey by the National Institute of Justice found that 19.0% of college women and 6.1% of college men experienced either sexual assault or attempted sexual assault since entering college. [17] In the University of Pennsylvania Law Review in 2017, D. Tuerkheimer reviewed the literature on rape allegations, and reported on the problems surrounding the credibility of rape victims, and how that relates to false rape accusations. She pointed to national survey data from the Centers for Disease Control and Prevention that indicates 1 in every 5 women (and 1 in 71 men) will be raped during their lifetime at some point. Despite the prevalence of rape and the fact that false rape allegations are rare, Tuerkheimer reported that law enforcement officers often default to disbelief about an alleged rape. This documented prejudice leads to reduced investigation and criminal justice outcomes that are faulty compared to other crimes. Tuerkheimer says that women face "credibility discounts" at all stages of the justice system, including from police, jurors, judges, and prosecutors. These credibility discounts are especially pronounced when the victim is acquainted with the accuser, and the vast majority of rapes fall into this category. [18] The U.S. Department of Justice estimated from 2005 to 2007 that about 2% of victims who were raped while incapacitated (from drugs, alcohol, or other reasons) reported the rape to the police, compared to 13% of victims who experienced physically forced sexual assault. [17]

See also

Related Research Articles

Sex and the law deals with the regulation by law of human sexual activity. Sex laws vary from one place or jurisdiction to another, and have varied over time. Unlawful sexual acts are called sex crimes.

Sexual assault is an act in which one intentionally sexually touches another person without that person's consent, or coerces or physically forces a person to engage in a sexual act against their will. It is a form of sexual violence that includes child sexual abuse, groping, rape, drug facilitated sexual assault, and the torture of the person in a sexual manner.

<span class="mw-page-title-main">Sexual harassment</span> Unwanted sexual attention or advances

Sexual harassment is a type of harassment involving the use of explicit or implicit sexual overtones, including the unwelcome and inappropriate promises of rewards in exchange for sexual favors. Sexual harassment can be physical and/or a demand or request for sexual favors, making sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature, verbal. Sexual harassment includes a range of actions from verbal transgressions to sexual abuse or assault. Harassment can occur in many different social settings such as the workplace, the home, school, or religious institutions. Harassers or victims can be of any gender.

Abuse is the improper usage or treatment of a thing, often to unfairly or improperly gain benefit. Abuse can come in many forms, such as: physical or verbal maltreatment, injury, assault, violation, rape, unjust practices, crimes, or other types of aggression. To these descriptions, one can also add the Kantian notion of the wrongness of using another human being as means to an end rather than as ends in themselves. Some sources describe abuse as "socially constructed", which means there may be more or less recognition of the suffering of a victim at different times and societies.

<span class="mw-page-title-main">Intimidation</span> Intentional behaviour meant to cause a person humiliation, embarrassment, and discomfort

Intimidation is a behaviour and legal wrong which usually involves deterring or coercing an individual by threat of violence. It is in various jurisdictions a crime and a civil wrong (tort). Intimidation is similar to menacing, coercion, terrorizing and assault in the traditional sense.

Psychological abuse, often called emotional abuse, is a form of abuse characterized by a person subjecting or exposing another person to a behavior that may result in psychological trauma, including anxiety, chronic depression, or post-traumatic stress disorder.

Fraternization is the act of establishing intimate relations between people or groups. It is generally used to refer to establishing relations that are considered unethical, controversial, or problematic.

Workplace bullying is a persistent pattern of mistreatment from others in the workplace that causes either physical or emotional harm. It can include such tactics as verbal, nonverbal, psychological, and physical abuse, as well as humiliation. This type of workplace aggression is particularly difficult because, unlike the typical school bully, workplace bullies often operate within the established rules and policies of their organization and their society. In the majority of cases, bullying in the workplace is reported as having been done by someone who has authority over the victim. However, bullies can also be peers, and subordinates. When subordinates participate in bullying this phenomenon is known as upwards bullying .The least visible segment of workplace bullying involves upwards bullying where bully- ing tactics are manipulated and applied against “the boss,” usually for strategically designed outcomes.

Sexual harassment in education in the United States is an unwelcome behavior of a sexual nature that interferes with an American student's ability to learn, study, work or participate in school activities. It is common in middle and high schools in the United States. Sexual or gender harassment is a form of discrimination under Title IX of the Education Amendments of 1972. Sexual harassment involves a range of behavior from mild annoyances to unwanted touching and, in extreme cases, rape or other sexual assault.

<span class="mw-page-title-main">Estimates of sexual violence</span>

Surveys of victims of crime have been undertaken in many cities and countries, using a common methodology to aid comparability, and have generally included questions on sexual violence. The United Nations has conducted extensive surveys to determine the level of sexual violence in different societies. According to these studies, the percentage of women reporting having been a victim of sexual assault ranges from less than 2% in places such as La Paz, Bolivia (1.4%), Gaborone, Botswana (0.8%), Beijing, China (1.6%), and Manila, Philippines (0.3%), to 5% or more in Istanbul, Turkey (6.0%), Buenos Aires, Argentina (5.8%), Rio de Janeiro, Brazil (8.0%), and Bogota, Colombia (5.0%).

Harassment covers a wide range of behaviors of offensive nature. It is commonly understood as behavior that demeans, humiliates, and intimidates a person, and it is characteristically identified by its unlikelihood in terms of social and moral reasonableness. In the legal sense, these are behaviors that appear to be disturbing, upsetting or threatening. Traditional forms evolve from discriminatory grounds, and have an effect of nullifying a person's rights or impairing a person from benefiting from their rights. When these behaviors become repetitive, it is defined as bullying. The continuity or repetitiveness and the aspect of distressing, alarming or threatening may distinguish it from insult.

Sexual consent is consent to engage in sexual activity. In many jurisdictions, sexual activity without consent is considered rape or other sexual assault.

Workplace harassment is the belittling or threatening behavior directed at an individual worker or a group of workers.

Campus sexual assault is the sexual assault, including rape, of a student while attending an institution of higher learning, such as a college or university. The victims of such assaults are more likely to be female, but any gender can be victimized. Estimates of sexual assault, which vary based on definitions and methodology, generally find that somewhere between 19 and 27% of college women and 6–8% of college men are sexually assaulted during their time in college.

Sexual harassment in education is an unwelcome behavior of a sexual nature that interferes with a student's ability to learn, study, work or participate in school activities. Sexual harassment encompasses a range of behavior from mild annoyances to sexual assault and rape. As committed by teachers, it is often framed as "sex for grades" and has attracted media attention throughout the world, partly in connection with the #MeToo movement.

Abusive power and control is behavior used by an abusive person to gain and/or maintain control over another person. Abusers are commonly motivated by devaluation, personal gain, personal gratification, psychological projection, or the enjoyment of exercising power and control. The victims of this behavior are often subject to psychological, physical, mental, sexual, or financial abuse.

<span class="mw-page-title-main">MeToo movement</span> Social movement against sexual abuse and harassment

#MeToo is a social movement and awareness campaign against sexual abuse, sexual harassment, and rape culture, in which people publicize their experiences of sexual abuse or sexual harassment. The phrase "Me Too" was initially used in this context on social media in 2006, on Myspace, by sexual assault survivor and activist Tarana Burke. The hashtag #MeToo was used starting in 2017 as a way to draw attention to the magnitude of the problem.

The Weinstein effect is a global trend in which allegations of sexual misconduct by famous or powerful figures are disclosed. The first of a worldwide wave of allegations were made in the United States in October 2017, when media outlets reported on the allegations made against film producer Harvey Weinstein. They were described as a "tipping point" or "watershed moment" and precipitated an "international reckoning" against sexual harassment.

<span class="mw-page-title-main">Sexual abuse by yoga gurus</span> Allegation of sexual abuse by yoga guru

Sexual abuse by yoga gurus is the exploitation of the position of trust occupied by a master of any branch of yoga for personal sexual pleasure. Allegations of such abuse have been made against modern yoga gurus such as Bikram Choudhury, Kausthub Desikachar, Yogi Bhajan, Amrit Desai, and K. Pattabhi Jois. There have been some criminal convictions and lawsuits for civil damages.

The Yates Report, officially titled Report of the Independent Investigation to the U.S. Soccer Federation Concerning Allegations of Abusive Behavior and Sexual Misconduct in Women's Professional Soccer, is the official report documenting the findings and conclusions concerning abusive behavior and sexual misconduct in women's professional soccer, with a focus on the National Women's Soccer League (NWSL). The 173-page report was publicly released by the United States Soccer Federation (USSF) on October 3, 2022. It is named for Sally Yates, the King & Spalding partner who led the investigation who had previously served as acting United States Attorney General.

References

  1. 1 2 Defence, National (December 3, 2019). "Chapter 2 - Understanding of Sexual Misconduct". www.canada.ca.
  2. ↑ "Sexual Harassment | RAINN".
  3. 1 2 3 4 "What is sexual misconduct, exactly? Depends on who you ask". ottawacitizen.
  4. ↑ Dictionary of Ethical and Legal Terms and Issues, by Len Sperry, 2007 – Routledge, pages 238-239.
  5. 1 2 3 4 5 6 Laucius, Joanne (29 January 2018). "What is sexual misconduct, exactly? Depends on who you ask". ottawacitizen.com. Ottawa Citizen. Retrieved 9 June 2018.
  6. ↑ "Operations Manual". opsmanual.uiowa.edu. University of Iowa. Retrieved 9 June 2018.
  7. ↑ JAMA 1991.
  8. 1 2 Cottle, Michelle (20 December 2017). "What Does 'Sexual Misconduct' Actually Mean? The almost infinite shades of creepy misbehavior on display are challenging the legal and cultural categories used to describe them". www.theatlantic.com. The Atlantic.
  9. ↑ Educator Sexual Misconduct: A Synthesis of Existing Literature (PDF) (Report). United States Department of Education. 2004.
  10. 1 2 West, Hatters-Friedman & Knoll 2010, pp. 9–10.
  11. ↑ "Sex Between Students & Professors" . Retrieved 25 November 2016.
  12. ↑ "Has Media Ignored Sex Abuse In School?". www.cbsnews.com. Archived from the original on 30 October 2013. Retrieved January 15, 2009.[ title missing ]
  13. ↑ Douglas, K. A.; et al. (1997). "Results from the 1995 national college health risk behavior survey". Journal of American College Health. 46 (2): 55–66. doi:10.1080/07448489709595589. PMID   9276349.
  14. ↑ "Youth Risk Behavior Surveillance: The National College Health Risk Behavior Survey -- United States, 1995". Centers for Disease Control. 14 November 1997.
  15. 1 2 Pugh, Brandie; Ningard, Holly; Ven, Thomas Vander; Butler, Leah (2016). "Victim Ambiguity: Bystander Intervention and Sexual Assault in the College Drinking Scene". Deviant Behavior. 37 (4): 401–418. doi:10.1080/01639625.2015.1026777. S2CID   147081204.
  16. ↑ Pugh, Brandie; Becker, Patricia (2018-08-02). "Exploring Definitions and Prevalence of Verbal Sexual Coercion and Its Relationship to Consent to Unwanted Sex: Implications for Affirmative Consent Standards on College Campuses". Behavioral Sciences. 8 (8): 69. doi: 10.3390/bs8080069 . ISSN   2076-328X. PMC   6115968 . PMID   30072605.
  17. 1 2 Krebs, Christopher P.; Lindquist, Christine H.; Warner, Tara D.; Fisher, Bonnie S.; Martin, Sandra L. (December 2007). "The Campus Sexual Assault (CSA) Study" (PDF). National Institute of Justice.
  18. ↑ Deborah, Tuerkheimer (2017). "Incredible Women: Sexual Violence and the Credibility Discount". University of Pennsylvania Law Review. 166 (1).

Notes

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