The Legislative Regulation Of Sexual Harassment

Sexual harassment is a global social problem.The legislative regulation is the key to solve this problem.This article try to grasp the legislative trends of the current world and define the sexual harassment on the basis of reasonable, to draw the experience of some international organizations, some countries and regions, pointing out the defects of domestic legislation and put forward my own ideas and views for the the building framework of the "Sexual Harassment Prevention Law".The actors and the objects of sexual harassment in the definition of the problem, we can combine actual inspection and analysis and come to the conclusion from the concept of sexual harassment, history and development trend: sexual harassment by men against women is not just an act. In other words, sexual harassment is not limited to male actors, the act is not restricted to women.On the problem of the victim of sexual harassment, whether the victim of sexual harassment is defined as the right of liberty or dignity, or chastity, honor, the theories all have some shortcomings, we finally adopted Professor Yang Lixin's perspective, that the victim is sexual autonomy right. We stressed that the understanding of sexual harassment against the object, we should get rid of the so-environmental factors, define the object of sexual harassment as a simple definition of sexual autonomy right.Sexual harassment can be divided into four types: the language, physical,environmental layout and other methods. Meanwhile, harassment and non-harassment must be distinguished.On the problem of occasion about the sexual harassment, the biggest difference is whether to define the sexual harassment only in the workplace. On the basis of considering the development of the concept of sexual harassment, the condition of our country and protecting the rights the university,we have come to this conclusion: Regulation of sexual harassment at the various occasions of sexual harassment should be included in, but not be limited to occur in the workplace.On the extent of sexual harassment, the focus of the debate is whether the serious acts of sexual violence within the scope of sexual harassment, and whether to use the criminal law to regulate the system of sexual harassment. In this issue, our stand is we should have a clear distinction between sexual harassment and sexual violence, and should distinguish the limit sexual harassment and breach of the criminal law. Furthermore, does not use criminal law to regulate the form of sexual harassment. The lower end of the sexual harassment, we advocate moderate and mild sexual misconduct at the fall of sexual harassment.Element of sexual harassment on the subjective, we are inclined to such an understanding: the sexual misconduct refers to sexual harassment. Regardless of the perpetrator for all intents and purposes, if the performance is at the side, feel unwelcome behavior, it should be classified as sexual harassment. Meanwhile, we can learn from the doctrine of the United States, use the victim behavior is unwelcome to be a subjective standard.Elements of sexual harassment on the objective, we emphasize the sexual harassment only as act, but is not as omission. Meanwhile, we can learn from the United States Supreme Court adopted a "reasonable person" standard, whether the sexual harassment will take a visible loss of benefits for the victims, in accordance with objective criteria as long as a normal person, the victims may suffer from psychological or physical harm, which is to comply with requirements of the consequences of acts of sexual harassment elements.On the basis of researching over the series of controversial issues for sexual harassment, We can make the following concept of the sexual harassment: In addition to sexual harassment, sexual violence is the perpetrator of the crime outside the various improper acts against sexual autonomy unpopular.There are many advanced experience of sexual harassment regulations in the legislation and practice from international organizations, some countries and regions on the issue. Investigation and learn from these experiences that can greatly promote the sexual harassment legislation in our system of straightening out ideas. The world of sexual harassment in order to better regulate the system of social problems.Inspect the contents of the international organizations legislation ,we find that the relevant provisions of international organizations played key roles declared, Regulation of sexual harassment specific needs of all members of international organizations through its own legislative solutions.Many countries in the world had established and improved the regulatory system and the laws of sexual harassment, It also established a lot of theory and principles that we can summarize for several aspects:First, separate legislation is the best way to regulate the system of sexual harassment, it is a more direct and effective way than simple use or improve the existing law, and the legislation is already the world as pilot cases.Second, we use the feeling of the sexual harassment object as the standard for the subjective conditions of the constitute sexual harassment.Third, the parties focus on the protection of privacy and security. Fourth, the establishment of the employer's responsibility for sexual harassment in the workplace.Fifth, there should be representatives of the unions and employees to carry out their duties in the fight against sexual harassment provisions.Sixth, the sexual harassment settlement and regulatory system should be pluralistic way.Seventh, the form of damages for victims, and punitive damages in certain circumstances applicable principles. Eighth, establish a victim's burden of proof.Although in China there is no specific legislation for sexual harassment now, but from the perspective of the existing laws, we can find sexual harassment legislation. These laws include: Constitution, Civil Code, Criminal Law, Labor Law, the law on protection of women's rights. Punishment of Public and local legislation. However, inspect from these provisions, we can see obvious defects of the sexual harassment legislation. This is mainly reflected in the following aspects :First, the concept of different legislative scattered. This has become the primary obstacle to effective the regulation of the sexual harassment.Second, the regulation is clearly not enough, the lack of workable provisions in the law.Third, the focus of regulation of sexual harassment is the workplace sexual harassment, there were on laws and regulations in China.Fourth, the lack of specific legal regulations will discourage people consciously use the legal system to the enthusiasm of sexual harassment.Thus, we should conduct a separate sexual harassment legislation. The need for separate legislation reflect in three aspects :First, actually for a specific social issues of regulation, States will separate legislation, in order to show the confidence and determination for soling the social problems of the country. It also provides a very important premise and basis for regulation of sexual harassment legislation.Second, separate legislation to address the problem contributed to the industry for self, and meanwhile formed to promote social good moral environment, and the victim was able to get compensation. So as to better protect the rights of victims. And the whole community will be gradually formed a good atmosphere for prevention of sexual harassment.Third, if not separate legislation, to amend existing laws to improve the regulatory system of sexual harassment. The cycle wil be too long. Even with a view to their joint use of various legal regulation can achieve good results, also can not predict the behavior of the system as separate legislation on the regulation of the direct, simple and effective.Based on the foregoing, we can say that the single independent system of sexual harassment regulations is necessary. In addition, the name should be taken as"Law for the Prevention of Sexual Harassment". It shows the attitude of the state: Regulation of a sexual harassment, first important is prevention, the second is rule.In the"Sexual Harassment Prevention Law", it use the regulate sexual harassment in the workplace as the main content. and to regulate other occasions of sexual harassment as a necessary supplement. This is in light of China's actual situation and the perspective of protecting the rights of the university's consideration."Sexual Harassment Prevention Act", it's legislative framework should include the following aspects:First, to be provided some issues in the general provisions. This should include a clear concept and the elements of sexual harassment, it must shows a clear stance against sexual harassment and to establish the principle of the trial unpublic, meanwhile provides relevant agencies to establish a sound mechanism for the prevention of sexual harassment and other obligations content.Second, construct a specific system for regulating the sexual harassment on different occasions.First, we can categoried the sexual harassment in accordance with its specific occasion. for each system to carry out relevant legislation. The first category of sexual harassment is in the workplace. The second category is occurred in schools, military, prison and other special occasions in the form of sexual harassment. The third category is in hospitals, shops, hotels and other public places and services related to the acts of sexual harassment. The fourth category is general in buses and other public places, or use telephone, the Internet and other means to carry out acts of sexual harassment. For more than four sexual harassment summary of the occasion, we can come to this conclusion: punishment for sexual harassment of a series of regulatory bodies and mechanisms depends on the choice of the main actors, whether it is through work for the benefit or at work, or whether the act occurred and the working environment.Second, because of sexual harassment at work is harmful rather conspicuous problem of sexual harassment. It should be the main content of regulating the sexual harassment. This should include specific :1. Employers provisions in its management systems and rules should establish a sound system to prevent sexual harassment.2. The provisions of preventing sexual harassment clauses should be written into their labor contracts by employers .3. We should established system of employer liability in damages.4. Consider to install the system of punitive damages.Third, the"Sexual Harassment Prevention Law"should probide the burden of proof and the limitation. For the onus,we may consider to reduce the standard of proof in a civil case, or used the burden of proof for the plaintiff and defendant bear the onus of the burden of proof in a particular case. The issue of limitations for sexual harassment, lies in its starting point. Taking into account sexual harassment may be a continuing nature, the parties are in general not only endure file a lawsuit since the end of sexual harassment should be run, this is more conducive to the protection of"the victim".