Criminal liability for harassment (Article 133 of the Criminal Code of the Russian Federation)

Previously, it was believed that predominantly women were susceptible to socially dangerous acts of a sexual nature, but in modern realities any citizen of our society can become a victim of a crime. Sexual harassment can occur at work, on public transport, or in prison.

Based on the theory of criminal law, sexual harassment should be understood as various actions aimed at carrying out sexual persecution, rape and perversion. Such actions include: deception, intimidation, threats, bullying, physical influence.

We propose to consider in more detail the composition of this crime and the algorithm of actions to protect yourself from sexual assault.

The attitude of Russian law to sexual harassment

Russian legislation on criminal law consists of this Criminal Code of the Russian Federation, which operates within the framework of the principles of the Constitution of the Russian Federation, and international norms. Thus, when defining such socially dangerous acts as sexual harassment, we can turn to a number of international normative documents (documents of the United Nations, International Labor Organization, model laws in the format of the Commonwealth of Independent States, etc.).

The Criminal Code of the Russian Federation (CC RF) does not directly introduce the term “sexual harassment”, including a similar crime in Art. 133 of the Criminal Code of the Russian Federation. The absence of a separate article devoted exclusively to sexual harassment is due to the relative novelty of the very construction of the act in Russian criminal law enforcement.

Article 133. Compulsion to perform actions of a sexual nature

The closest thing to sexual harassment is the wording of Art. 133 of the Criminal Code of the Russian Federation - coercion to acts of a sexual nature, which provides for not only coercion itself, but also the commission of other sexual acts. The purpose of coercion is to obtain the forced consent of the victim to commit more dangerous sexual acts.

For sexual harassment, the following may be used:

• blackmail - the threat of disseminating information of a compromising nature;
• threat of property damage - including destruction, damage or seizure;
• exploitation of any dependent position of the victim.

It is worth noting that sexual harassment within the framework of the Criminal Code of the Russian Federation as an object of a crime implies not only the sexual integrity and freedom of a person, but also the honor and dignity of the victim that are inextricably linked with them.

The objective side of the crime is characterized by the commission of active actions, in connection with which the crime can be committed exclusively within the framework of direct intent.

Note!

Activity within the framework of sexual harassment is expressed in the form of a demand, offer or other influence that is understandable to the victim.

A prerequisite for the existence of a crime is the lack of consent (will) of the victim, which can be expressed in any form - verbal, written, through physical actions or gestures, as well as coercion itself.

Article for harassment

Whether certain actions qualify as harassment depends directly on the behavior, social status, and perception of the victim. There are many different types of harassment. For example, sexually.

This group includes inducing female students and subordinates into intimate relationships, demanding sex through blackmail, and even vulgar conversations on relevant topics. The violator may also undertake other types of harassment. This is too intrusive attention or sexual pressure exerted in public places. In some situations, even telephone calls when a maniac passionately whispers into the phone are considered harassment.

Harassers must not go unpunished. Offenders face criminal liability. Punishment is regulated and imposed on the basis of 133 legislative acts found in the current Criminal Code.

Illegal actions towards adults

During legal proceedings, the subject of which was inducement to sexual relations, the age of the victim plays a huge role. If the victim is already eighteen years old, then the first paragraph of article number 133 comes into force. Forced inducement of an individual into relationships of a sexual nature can occur in various ways.

Most often, criminals try to blackmail the victim. The pressure works properly on the woman and she agrees to have sexual intercourse. Manipulations with property are also possible. Harassers may threaten that they will destroy, harm, or seize a certain property. Harassment can also be committed with the help of material relationships or other dependencies of this kind.

All of the above actions are criminally punishable. First of all, penalties are provided. The maximum amount of deduction is one hundred twenty thousand rubles. The exact amount depends on the level of harassment. The more serious the offender's offense, the more he will have to pay. In addition, they may approve the payment of wages (as penalties). The convicted person will need to provide his income for approximately a year.

Those convicted under the first part of Article 133 of the criminal law may be subject to mandatory labor. However, the duration of such punishment cannot exceed a 480-hour period. In addition, harassers may face correctional labor. They are provided for a two-year period. Punishments such as forced labor and imprisonment are also acceptable. They are valid for a maximum of one year.

Harassment of a minor

If a criminal sexually harasses an individual who is not yet eighteen years old, then a special punishment is provided for this on the basis of the second part of article number 133 of the Criminal Code of the Russian Federation. Such actions committed towards small children are a gross violation of the law. A convicted person who molested a minor victim will face one of the following penalties:

1. Forced labor. The offender will need to work in certain places, which are established by executive bodies, on a paid basis. In this case, a certain amount will be withheld from the prisoner’s earnings. This punishment will last for five years. In addition, an individual may additionally be deprived of the opportunity to occupy leadership positions, as well as some other positions. This can be done for a maximum of three years.
2. Deprivation of liberty . Also, the offender can be forcibly isolated from society and subject to a special punishment regime. In cases of harassment in the most obvious and severe form, freedom is deprived for five years. The judge may additionally impose a ban on holding a certain position. Such punishment is usually applied when a teacher harasses female students, a teacher harasses students, and the like. Its validity period is no more than three years.

If a child has been harassed by a certain individual, then his parents must defend the rights of the victim. The father and/or mother are required to participate in all legal proceedings and take all possible actions to help punish the offender. As for the type of punishment associated with the annulment of the convicted person’s right to hold certain positions, it may not always be applied. Whether this restriction comes into force or not is decided by the judge.

It should be noted that it will only be possible to prosecute an individual who has been observed harassing someone if there is evidence. This may be the testimony of witnesses or written confirmation of certain facts.

What actions to take

First of all, in order to punish an individual for harassment, care must be taken to confirm this fact. A video or corresponding audio recording can serve as irrefutable evidence. Witness testimony can also be used. However, the identity of the individual acting as a witness plays a role. If this is a close person to the victim, then his testimony will not have legal force. The same applies to situations where witnesses are in a hostile relationship with the accused.

After collecting evidence, the injured individual can contact the police and file a corresponding claim. It may also be that the application will not be accepted for processing. For example, when police officers refuse to initiate a criminal case. In such situations, it is necessary to contact the prosecutor's office to restore justice. You will need to write a counterclaim, which will include a link to the previous statement. Also, do not forget to provide the prosecutor's office with evidence confirming the fact of harassment.

It is worth remembering that it is appropriate to accuse someone of harassment only if the corresponding actions were committed explicitly. For example, if a teacher gives a student explicit hints about sexual intercourse on a daily basis, it will be very difficult to prove that this act constitutes harassment. This also applies to vulgar jokes and all other similar manifestations that do not entail offensive actions. Thus, it is impossible to hold accountable an individual whose harassment is manifested only in the form of hints (albeit quite blatant).

Categories of workers included in the risk group

Speaking about the concept of victimization in the case of sexual harassment in the workplace, it should be noted that the most vulnerable persons and, thus, potential victims may be:

• the lowest level of employees of the organization, performing the simplest functions;
• new employees;
• unsociable employees, perhaps without family, relatives and friends, who, due to their character and isolation, are not ready to report a criminal violation of their rights;
• Single mothers, as well as single fathers, are that level of employees who are not ready to lose their jobs due to the need to support a child.

It is important to note that any employee can become a victim of sexual harassment at work for one or another objective reason, since often the offender is not guided by anything when choosing a victim.

Article 367 of the Civil Code of the Russian Federation. Termination of guarantee (current version)

4. In paragraph 3 of Art. 367 of the Civil Code of the Russian Federation establishes a rule on the termination of a guarantee with the transfer of the debt under the secured obligation to another person if the guarantor does not agree to be responsible for the new debtor. In this case, the emergence of a new debtor is the result of partial (rather than universal) succession. Since accepting a guarantee for someone else's debt is carried out, as a rule, taking into account the diligence and solvency of the person whose debt is secured in this way, it is the solvency of the debtor that is the main factor studied by the guarantor when deciding to issue a guarantee. A change in the figure of the debtor can seriously increase the risk of delay in performance of the secured obligation and, accordingly, increase the risk of the creditor making a claim against the guarantor, and can also negatively affect the subsequent possibilities of the guarantor to collect from the debtor the amounts paid to the creditor. As a result, if the original debtor is replaced by another person, the guarantee can remain valid only if the guarantor expressly agrees to be responsible for the new debtor, which also makes it possible to establish a circle of new debtors.

In the absence of the consent of the guarantor to be responsible for the new debtor in the event of non-fulfillment or improper fulfillment of the main obligation by him, it is unlawful to impose such an obligation on him. Thus, the legislator seeks to protect the guarantor from the risk of a debtor whose solvency is not obvious to the guarantor.

5. Paragraph 4, like paragraph 3 of this article, provides for a rule on the fate of the guarantee in the event of the appearance of a new debtor under the obligation secured by the guarantee. At the same time, the legislator has taken a different approach to the fate of the guarantee in a situation where the emergence of a new debtor is based on partial succession by virtue of the rules on the transfer of debt (clause 3), and in a situation where the change of debtor is based on universal succession (clause 4).

The norm of paragraph 4 of Art. 367 of the Civil Code of the Russian Federation provides for the preservation of a guarantee for the fulfillment of an obligation by the debtor’s legal successor upon the death of the debtor or reorganization of a legal entity—the debtor. The preservation of the guarantee does not depend on the consent of the guarantor to be responsible for the new debtor. This rule is based on the fact that the transfer of debts upon the death of the debtor or reorganization of a legal entity occurs as a result of universal succession, by virtue of the direct instructions of the law.

So, by virtue of paragraph 1 of Art. 418 of the Civil Code of the Russian Federation, the death of the debtor does not terminate the obligation, except in cases where it is inextricably linked with the personality of the debtor. Upon inheritance, the property of the deceased passes to other persons in the order of universal succession (clause 1 of Article 1110 of the Civil Code of the Russian Federation). The figure of the debtor changes without any desire or participation of creditors, and, consequently, of guarantors. That is why the guarantor becomes responsible for the fulfillment by the heirs who accepted the inheritance of the obligations of the deceased debtor.

At the same time, as already noted, in accordance with paragraph 3 of Art. 364 of the Civil Code of the Russian Federation, the guarantor is not given the right in relations with the creditor to refer to the limited liability of the heirs and to demand a reduction in the amount of his obligation under the guarantee agreement in proportion to the value of the inherited property.

An identical approach is also taken to the fate of the guarantee in the event of reorganization of a legal entity—the debtor. In this situation, the guarantee also does not terminate, since it is not an obligation closely related to the identity of the person participating in it.

The transfer of debts during reorganization also occurs due to the direct instructions of the law according to the rules on universal succession (Articles 58 - 59 of the Civil Code of the Russian Federation). The creditor's agreement or disagreement with the fact of the emergence of a new debtor as a result of the reorganization does not matter. Accordingly, if the reorganization of the debtor can occur without the consent of the creditor and the latter must suffer the consequences of the emergence of a new debtor, then the guarantor also cannot refer to the reorganization of the debtor as a basis for terminating the guarantee.

In addition, the guarantor can take advantage of the same guarantees during the reorganization of the debtor as the creditor. Such guarantees also include the rule on joint liability of the reorganized legal entity and the legal entities created as a result of the reorganization (Article 60 of the Civil Code of the Russian Federation).

Thus, the guarantee for the successor upon the death of the debtor or during the reorganization of the legal entity - the debtor is preserved, since it does not depend on the consent of the guarantor to be responsible for the new debtor. The guarantor, by issuing a surety, thereby assumes the implied risk of insolvency not only of the debtor, but also of his legal successors.

The only opportunity for a guarantor to free himself from fulfilling an obligation under a guarantee agreement in the event of the death of the debtor or the reorganization of a legal entity—the debtor—is the inclusion in the guarantee agreement of an appropriate disqualifying condition (Clause 2 of Article 157 of the Civil Code of the Russian Federation).

6. According to paragraph 5 of Art. 367 of the Civil Code of the Russian Federation, a guarantee is terminated when the creditor was offered proper fulfillment of the obligation by the debtor or the guarantor, but the creditor refused to accept it. This rule should not be considered as one that can lead to punishment of the creditor simply because he demands performance of what is already due to him under the obligation and does not agree to compromises. Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 12, 2012 No. 42 formulated the legal position regarding the incorrect application of the provision on termination of the guarantee due to the creditor’s refusal to accept proper performance. The Plenum recognized that the rule on termination of the guarantee does not apply “in cases where the creditor was asked to enter into an agreement to accept the pledged item or other property as compensation (Article 409 of the Civil Code of the Russian Federation), or the creditor refused the proposal to change the procedure or method of fulfillment of the secured obligation guarantee” (clause 23 of the Resolution). In other words, the intransigence of the creditor in the described situation should not deprive the persistent creditor of security, who demands from the debtor the fulfillment of what the latter has committed to.

7. Established in paragraph. 1 paragraph 6 art. 367 of the Civil Code of the Russian Federation, the finite duration of the guarantee is intended to protect the guarantor from an indefinitely long stay in the condition of an obligated person. That is why the law either provides the guarantor with the opportunity to agree precisely on the period for which the guarantee will be issued (the period of the guarantee should not be less than the period for the performance of the secured obligation), or establishes for him a guarantee in the form of a one-year validity period of the guarantee from the date of the performance of the obligation secured by the guarantee. The period of existence of a guarantee for obligations, when the period for fulfillment of the main obligation is not specified and cannot be determined or determined by the moment of demand, is established at two years from the date of conclusion of the guarantee agreement.

From the totality of these rules, we can conclude that the period of validity of the guarantee cannot be indefinite. If, for example, the guarantee agreement provides for a guarantee condition “until the debtor fully fulfills the obligation,” then an element of uncertainty is introduced into the relationship between the creditor and the guarantor. Due to this, the condition of the contract on the validity of the guarantee until the actual fulfillment of the secured obligation cannot be considered as establishing the validity period of the guarantee (clause 34 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 12, 2012 No. 42).

Both of these periods (one year and two years) are not limitation periods; the provisions of Chapter 12 of the Civil Code of the Russian Federation are not subject to application to them (clause 33 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 12, 2012 No. 42). Consequently, the rules on interruption, suspension or restoration of the limitation periods cannot be extended to these periods.

In accordance with paragraph. 2 paragraphs 6 art. 367 of the Civil Code of the Russian Federation, the presentation by the creditor of a demand to the debtor for early fulfillment of the obligation (for example, in accordance with paragraph 2 of Article 811 of the Civil Code of the Russian Federation) does not affect the duration of the validity period of the guarantee (without shortening it), since the guarantor is responsible to the creditor until the expiration of the validity period guarantee determined on the basis of the original conditions of the main obligation.

Sexual harassment at work

One of the types of sexual harassment under Art. 133 of the Criminal Code of the Russian Federation stipulates illegal sexual acts at work. The key factor is the dependence of one level of employees on another, the hierarchy of power within a single company.

No matter the degree of subordination between the potential perpetrator and the victim, sexual harassment in the workplace must be dealt with immediately.

In case of attempts to peacefully resolve the issue, the victim can contact the head of the organization and notify the trade union body, if there is one. Nevertheless, whatever the decision of senior management, we recommend filing a complaint with law enforcement agencies.

Since the Criminal Code of the Russian Federation does not have an article specifying sexual harassment, the definition of sexual harassment at work is based on international law enforcement practice.

In general, sexual harassment at work occurs if a superior employee, under whose supervision a person is, psychologically or physically induces him to enter into an intimate relationship.

Note!

Contacting law enforcement agencies does not require the availability of sufficient and relevant evidence. In any case, the police must verify the fact of the statement itself.

How to behave correctly when harassed

We are talking about actions, the existence of which is difficult to prove if there are no witnesses who could confirm the applicant’s testimony. Thus, in order for the guilty person to be punished, the other party must act in accordance with certain rules. If we talk about sexual harassment on a bus or other transport, things are complicated here, because often the perpetrator has to be seen only once. Such cases rarely progress.

More often, judicial authorities have to deal with situations that are systematic in nature. For example, sexual harassment at work. It may appear like this:

• unwanted sexual contact with a manager, which was accompanied by threats or promises of improving the financial situation, assistance in moving up the career ladder;
• unwanted contact with a colleague, about which the injured party reported to management, but they did not react in any way;
• creating an offensive sexual atmosphere. These could be jokes, remarks, or other hints.

In such situations, it is necessary to act correctly in order to achieve punishment for the guilty person. First of all, you need to collect evidence that will be useful when contacting law enforcement agencies, be it the police or the court. What is required here is:

• record facts of harassment. This may be an audio or video recording;
• for each case, contact management or a higher level, record requests;
• find witnesses willing to confirm the applicant’s words.

Next, all that remains is to contact law enforcement officers with a corresponding statement.

In transport - in the subway

Another level of sexual harassment is becoming widespread in the area of ​​public transport. High congestion on metro lines, crowding on the bus, rush - all this contributes to the commission of sexual harassment in the subway, and in any type of public transport, especially during rush hours.

As with workplace harassment, you should not hesitate to contact law enforcement. As long as you remember the face of the criminal, elements of clothing and other accompanying circumstances, write a statement to the police.

The difficulty in administering punishment for sexual harassment on public transport is based on the practical impossibility of collecting evidence and interviewing witnesses. However, the appeal initiates a law enforcement investigation, which will help not only to catch the criminal, but also to prevent possible crimes.