Sexual Harassment and Sexual Assault; What’s the Difference?

Sexual harassment and sexual assault are two types of sexual impropriety. They are not the same although there is overlap between the two in that a sexual assault is a form of sexual harassment.

Sexual Harassment

Sexual harassment is a course of vexatious conduct focussed on a victim’s sex, including pregnancy and pregnancy related conditions, sexual orientation , gender identity or gender expression. It is also a demand or a sexual solicitation or advance that one knows or ought reasonably to know is unwelcome.

The more serious the incident, the fewer that are needed to establish a course of conduct. In the case of an unwelcome sexual solicitation or demand, a single instance may constitute harassment.

Sexual harassment is a form of discrimination and in Yukon, if it occurs in the context of work (e.g. workplace sexual harassment), accommodations, the provision of goods or services, or membership in organizations, it is prohibited under the Yukon Human Rights Act. Sexual harassment in the workplace is a “hazard” under the Occupational Health and Safety Regulations and so the provisions of the Occupational Health and Safety Act apply to workplace sexual harassment.

Sexual Harassment has a wide scope. It includes but is not limited to :

Using sexually charged language, including joking about sex, sexual orientation, gender identity or gender expression
In person, or remotely, e.g. by phone, text, email or video-conferencing
Staring or leering at a person’s body
Making sexually explicit gestures
Displaying or sending someone sexualized images
Calling people sex- specific derogatory names
Purposefully and regularly assigning someone traditionally sex-specific chores
Talking about a person’s body
Talking about sexual activity
Telling someone to touch you sexually
Touching someone in a sexual manner; this means that a sexual assault in the workplace is also sexual harassment

Acts or words which might, in some contexts, be welcome may constitute harassment when they’re not welcome. The harasser’s intention is not relevant; the test is whether a reasonable person in the circumstances would know the conduct was unwelcome. The Workplace Sexual Harassment Legal Clinic can help you determine whether an incident you are concerned about is workplace sexual harassment.

In the Yukon, all employers are required to have a workplace safety policy, which includes sexual harassment as a workplace hazard. Employees must be trained on the policy and complaints can be made to the employer under the policy. When a complaint is made, the employer is required to investigate the complaint, come to a determination as to whether the complained about harassment took place and then, if harassment is found, take steps to address it and ensure that the employee is safe.

If you believe that you are the victim of workplace sexual harassment, you can find free and confidential legal advice or information at the:

Workplace Sexual Harassment Legal Clinic

#103-2131 Second Avenue

Whitehorse, Yukon, Y1A 1C3

867-393-6219 or 867-393-6236

wsh@legalaid.yk.ca

Lawyers at the Clinic can help you determine whether you have been the victim of workplace sexual harassment and help you determine your best options for addressing harassment which may include:

a complaint to the Yukon Human Rights Commission
pursuing the matter under the Worker’s Safety and Compensation Act,
a civil law suit, or
if the harassment, constituted a sexual assault, criminal prosecution.

Sexual Assault

Sexual Assault is an offence under s. 271 of the Criminal Code of Canada which states:

s. 271 Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

However, sexual assault is not defined in the Criminal Code. The federal Department of Justice, which prosecutes sexual assaults in Yukon through the Public Prosecution Service of Canada (PPSC), has stated, in publications, that sexual assault is:

. . .any unwanted sexual act done by one person to another or sexual activity without one person’s consent or voluntary agreement. (Department of Justice, 2010).

In R. v. Chase, [1987] 2 S.C.R. 293, McIntyre J. referred back to the Criminal Code’s definition of assault which currently reads:

s. 265 (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

And went on to find that a sexual assault is:

. . . an assault within any one of the definitions of that concept [set out in s. 265] which is committed in circumstances of a sexual nature so that the sexual integrity of the victim is violated.

While the perpetrator must intend to do the action which is found to constitute sexual assault, as is the case with sexual harassment, proof of sexual gratification is not required although it can be a factor in determining whether the act was intentional.

Forcing a person into a sexual act or to touch someone for a sexual purpose without their consent is clearly sexual assault but other actions undertaken without consent may also constitute sexual assault including but not limited to:

A non-violent kiss or hug or caress
Pulling someone’s pants down or lifting someone’s shirt or skirt up
an intentional sexualized touching of another person’s body
A medical appointment that involves unnecessary touching of genitals or breasts or a fraudulent medical appointment
Encouraging the use of drugs or alcohol or dosing someone with drugs or alcohol so that they are not able to consent to sexual activity and then engaging in sexual activity with them
an intentional but non-hostile touching of breasts or genitals even when clearly in the context of a joke

It should be noted that just as the offence of assault includes an attempted assault, so too does the offence of sexual assault. So even if there is no actual physical touching, a threat of or attempt to sexual assault is a criminal offence.

A victim may seek the support of the RCMP in investigating a sexual assault and charges may be brought against a perpetrator by the PPSC. In Yukon, a person who has been sexually assaulted can seek assistance and advice as to available options through the Sexualized Assault Response team which offers 24/7 support to victims. The SART can be contacted at 1-844-967-7275. The Victim Service’s branch of the Yukon Department of Justice also sponsors a programme which provides a certain number of hours of independent legal advice to a victim of sexualized or intimate partner violence and it can be contacted at 1-800-661-0408 ext. 8500 or victim.services@gov.yk.ca.