Workplace sexual harassment is generally considered a civil wrongdoing in California. That means the victim can sue the perpetrator for damages. However, there are times when sexual harassment is considered a crime, punishable in criminal court. Sexual harassment usually turns into a crime when the conduct violates specific criminal laws. Continue reading to find out when you can be charged with sexual harassment in criminal court.
What Workplace Sexual Harassment Involves
Sexual harassment in the workplace is a severe matter that impacts employees’ productivity and well-being. Under the California Fair Employment and Housing Act (FEHA) and federal employment law, workplace sexual harassment has its own definition. FEHA describes sexual harassment as unwanted sexual behavior that makes someone feel humiliated, offended, uncomfortable, or intimidated.
Sexual harassment could be verbal, physical, or non-verbal. The FEHA identifies 2 primary types of workplace sexual harassment.
- Hostile work environment. This form of sexual harassment entails conduct that creates a hostile, offensive, or intimidating working environment. It includes repeated discriminatory acts, slurs, offensive jokes, or other physical and verbal conduct that impacts an employee's capability to do their job.
- Quid pro quo harassment. This type of sexual harassment happens when employment decisions, including job retention or promotions, are contingent on the rejection or acceptance of unwanted sexual advances or requests for sexual favors. If, for example, a manager or supervisor offers to promote an employee in exchange for a particular sexual favor, it is considered quid pro quo sexual harassment.
It is an employer's responsibility to curb and address sexual harassment in the workplace. They must devise policies to prevent sexual harassment, investigate allegations brought to them, and take disciplinary action against individuals who participate in such conduct.
The state labor code protects whistleblower workers who report sexual harassment in the workplace. Apart from FEHA, other statutes provide legal repercussions for sexual harassment in the workplace in California.
The Penal Code, for example, makes it an offense to harass someone sexually. Committing this offense can lead to imprisonment and fines. Also, the law allows victims of workplace sexual harassment to obtain protective orders to prevent further harassment.
Remarkably, the legal repercussions for sexual harassment in the workplace go beyond criminal charges and financial liability. Employers guilty of sexual harassment may also face considerable negative publicity and reputational damage that could hurt their image and capability to retain or attract top talent.
Workplace sexual harassment victims can sustain long-lasting career damage and emotional trauma, which could have long-term impacts on their earning potential and mental health. Therefore, employers must take action to address and prevent workplace sexual harassment to comply with the law and create a productive, healthy workplace environment.
When Workplace Sexual Harassment Becomes a Crime
In many cases, sexual harassment in the workplace is considered a civil issue whereby the victim involved may recover compensation for different types of damages, including punitive damages, back pay, and emotional distress. The actual culprit may be liable for the damages the victim suffered. Still, employers could be held accountable if they were aware of, or should have been aware of, the sexual harassment and neglected to take the necessary corrective action.
Under specific circumstances, though, sexual harassment at work can escalate from a civil issue to a crime. If someone has accused you of sexually harassing them at work in general, they may sue you, and you may be subject to liability damages in civil court. And if your conduct crossed the line into criminal activity, you may also face criminal charges and even incarceration. This is true even if the victim does not file any civil claim against you.
Generally, workplace sexual harassment turns into a criminal violation when the conduct in question violates particular criminal laws. The following are the most prevalent criminal statutes under which workplace sexual harassment can be criminally prosecuted in California:
PC 422, Criminal Threats
Criminal threats entail threatening to perpetrate an offense that will lead to great bodily harm or death to someone else, with the intention that the statement you make in writing, electronically, or verbally is considered a threat. According to PC 422, criminal threats have the following elements:
- Making threats to harm someone physically or kill them
- The threats are unequivocal, immediate, unconditional, and specific, making the person fear for their safety and that of their family.
In a workplace environment, if a worker threatens to hurt a coworker or their family, it can be charged as a PC 422 violation. Even with no physical injury, making credible threats can result in criminal charges.
In criminal law, making criminal threats is considered a wobbler offense. A misdemeanor carries no more than 12 months in custody and a fine of up to $1,000. If convicted of the felony, the consequences will include a fine of up to $10,000 and up to 3 years in prison.
If found guilty of a felony violation, the judge, during sentencing, may consider it as an aggravating circumstance if you intentionally threatened to perpetrate an offense that would lead to the great bodily harm or death of someone you were aware was a court commissioner, judge, member of the legislature, or state constitutional officer.
If you personally utilized a dangerous or deadly weapon to convey your threat, you will be subject to an additional, consecutive 12 months in prison. And should you make threats on several occasions, against several individuals, or pursuant to various objectives, you may face these consequences for every threat you communicate.
PC 653.2, Cyber Harassment
Cyber harassment is also called cyberstalking. It entails utilizing electronic communication to intimidate, threaten, or harass someone. Under 653.2 PC, it is criminal to:
- Utilize electronic communication to threaten someone repeatedly, intending to make them fear for their safety.
- Utilize an electronic gadget to harass another individual offensively, intending to cause them emotional distress.
Instances of workplace cyber harassment include sending threatening text messages, social media posts, or emails about or to another employee. Cyber harassment is considered a misdemeanor. A conviction is punishable by up to 12 months in custody, up to $1,000 in fines, and summary probation. Generally, the judge will impose misdemeanor probation instead of jail time, particularly for a first-time offender.
PC 646.9, Stalking
Stalking entails repeatedly harassing, threatening, or following an individual to the extent they fear for their safety or that of their immediate family members. Per California 646.9 PC, stalking is deemed a criminal offense if it entails:
- Maliciously and willfully harassing or following someone else, or maliciously, willfully, and repeatedly following them
- Making credible threats to make the victim reasonably fear for their safety or that of their immediate family members
An instance of stalking at the workplace includes a worker sending a coworker threatening messages, repeatedly following them home, or engaging in other conduct that makes the victim fear for their safety.
Violating PC 646.9 is considered a wobbler violation. A misdemeanor conviction would carry no more than 12 months in custody, a maximum fine of $1,000, and summary probation. A felony conviction would be punishable by felony probation, a maximum fine of $1,000, and a prison sentence of up to five years. Stalking is generally charged as a felony if the defendant violated the conditions of a protective order or has a past conviction for stalking.
PC 243.4, Sexual Assault
A sexual harassment incident can escalate to sexual assault, and this is quite common. Also known as sexual battery under California law, sexual assault constitutes these elements:
- Touching another's intimate part
- Doing so against the person’s will
- Doing so for the intent of sexual gratification, abuse, or arousal
You can be criminally liable for sexual assault even when you touch a person through their clothes. An intimate or private part refers to a woman's breast or anybody's groin, anus, or sexual organ. Many sexual assault incidents that occur as part of a sexual harassment campaign are misdemeanor offenses. A conviction is punishable by up to six months in custody, a fine of no more than $2,000, or no more than $3,000 if the involved victim was the perpetrator’s employee. Many people do not know that simple sexual contact could be an offense.
PC 261, Rape
Sometimes sexual harassment involves rape. Generally, the criminal elements of rape are as follows:
- You had sex with a female
- The female never consented to the sex
- You achieved the intercourse via fraud, fear, force, threats of official action, or harm
A conviction is punishable by three to eight years in prison. You will also be required to register as a sexual offender.
PC 242 and 240, Battery and Assault
Under California law, the criminal offense of assault, at times called assault and battery, entails these four elements:
- You committed an act that would likely lead to the direct use of force against another person
- You committed the act willfully
- When you committed the act, you knew that any reasonable individual would believe doing so would probably and directly lead to the use of force on that individual
- When you committed the act, you had the present capability to use force on that person
Use of force can be any offensive or harmful contact. Any form of contact, no matter how slight it is, can constitute assault if it was performed rudely or offensively. You need not have inflicted physical harm for you to be convicted.
Due to this low standard for the force required to convict for assault, assault is among the most prevalent crimes to occur in the workplace sexual harassment context. However, many people who fall victim to this harassing behavior do not know this.
Assault is considered a misdemeanor offense. If convicted, you will face up to six months in custody and no more than $1,000 in fines. The judge may impose a probationary sentence rather than jail time.
PC 314, Indecent Exposure
Indecent exposure could also occur in the context of workplace sexual harassment. For you to be convicted of indecent exposure in criminal court, the prosecution must prove these elements:
- You purposely exposed your genital parts
- You did so in someone’s presence, who may reasonably be annoyed or offended by it
- You meant to draw public attention to your genital parts to either sexually gratify yourself or offend another person sexually
A first-time offense is generally a misdemeanor that carries up to six months in custody and a fine of up to $1,000. Subsequent crimes are typically felonies, carrying a court fine of up to $10,000 and a maximum prison sentence of three years. Also, you will be required to follow the sex offender registration requirement for a minimum of 10 years.
PC 311, Pornography
Sexual harassment in the workplace often entails offensive visuals. If the visuals include child pornography, the harasser and even the employer might be guilty of violating California child pornography laws. To be convicted of child pornography in California, the prosecutor must prove the following:
- You knowingly sent, transported, produced, possessed, or duplicated any child porn intending to distribute it (PC 311.1 and 311.2)
- You knowingly duplicated, developed, printed, or exchanged any child porn (PC 311.3)
- You knowingly hired, employed, used, persuaded, or coerced a child to engage in the production of child porn (PC 311.4)
- You knowingly advertised obscene child pornography for distribution or sale of child porn (PC 311.10)
- You knowingly possessed or controlled any child porn that was produced using someone under 18 years old
Child pornography is mostly a wobbler or a straight felony. Child pornography as a misdemeanor is generally punished by a maximum of 12 months in jail and a fine ranging from $1,000 to $2,500. Most felony child porn cases are punished by a maximum of 3 years in prison. Also, you will be required to follow the requirements to register as a sex offender.
Contact an Experienced Criminal Defense Attorney Near Me
Whether handled as a criminal offense, a civil issue, or both, handling workplace sexual harassment accusations requires clarity, courage, and the right support. If you are facing accusations, seeking legal representation from an experienced defense attorney is essential. An attorney can guide you on how to proceed and develop a defense strategy that will yield the best possible outcome.
If you are facing accusations in Los Angeles, we at the Law Office of Sara L. Caplan can handle your case. We are devoted to helping defendants navigate the intricacies of workplace sexual harassment accusations, as we understand that sometimes these cases may arise from wrongful allegations. Call us today at 310-550-5877 to schedule a free consultation and learn more.
