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Серебренникова А.В.
Московский государственный университет им. М.В.Ломоносова, доктор юридических наук, профессор кафедры уголовного права и криминологии, Юридический факультет DOI: 10.24411/2520-6990-2020-12103 ХАРАССМЕНТ И УГОЛОВНЫЙ ЗАКОН
Serebrennikova A. V.
Lomonosov State University, Doctor of Law, Professor of the Department of Criminal Law and Criminology, Faculty of Law
HARASSMENT AND CRIMINAL LAW
Аннотация.
Статья посвящена анализу харассмента с точки зрения его уголовно-правовой оценки. На основе обобщения источников в области международного права, уголовного законодательства зарубежных стран и положений, разработанных в российской правовой доктрине, автор формулирует концепцию харассмента и проводит аналогии с терминологией, используемой российским законодателем в отношении принуждений сексуального характера.
Abstract.
The article is devoted to the analysis of harassment from the point of view of its criminal legal assessment. Based on the generalization of sources in the field of international law, criminal legislation offoreign countries and provisions developed in the Russian legal doctrine, the author formulates the concept of harassment and draws analogies with the terminology used by the Russian legislator in relation to coercion to acts of a sexual nature.
Ключевые слова: харассмент; принуждение к действиям сексуального характера; уголовная ответственность; квалификация преступлений; материальная зависимость; угрозы; шантаж.
Key words: harassment; coercion to acts of a sexual nature; criminal liability; qualification of crimes; material dependence; threats; blackmail.
Violation of the inviolability of a person's private life remains an urgent problem that rivets the attention of the international community to develop effective measures to counter this negative social phenomenon.
More recently, the term "harassment" has been increasingly used to refer to behavior of one person that causes inconvenience and violates the privacy of another. However, in the Russian legal science this term has not been developed enough, which increases the relevance of its thorough scientific understanding and adaptation to the domestic legal system.
Harassment. Let us turn to the etymology of the term under consideration, which has an English pronunciation. According to the Oxford English Dictionary, harassment is interpreted as "an act of annoying or disturbing someone by pressure, or saying or doing unpleasant things to such person" [6]. The term emerged from the hunting lexicon at the beginning of the 17th century in the following form: harasser - "to hound a hunting dog on game".
Harassment includes not only sexual harassment, but any actions that humiliate another person, create around such person an unfavorable environment aimed at generating feelings of shame or fear in such person. Public outcry and increased attention from human rights organizations have led to that in many countries even whistling towards a woman can be perceived as harassment.
Harassment in international law. General Recommendation 19 to the UN Convention on the Elimination of All Forms of Discrimination against Women
uses the term "sexual harassment" to mean any unwanted sexual behavior, requests for their commission, sexual gestures, as well as any other behavior with corresponding hints in cases where a negative or frightening reaction could be expected from them. This definition is more in line with the perception of harassment in Russian reality.
In the summer of the year 2019, in Geneva, at the initiative of the International Labor Organization, there was adopted the Convention on the Elimination of Violence and Harassment at Work [1]. In accordance with the text of the Convention, in international legal terminology, the term "violence and harassment" in the field of work refers to a number of specific forms of behavior aimed at causing physical, sexual, psychological, or material harm. When voting for the ratification of the Convention, the Russian government, unlike most states, behaved passively and abstained from voting for it.
The Convention, as a result of the global community's response to gender-based violence, pays special attention to this issue, disclosing it as violence and harassment directed at individuals on the basis of their sex or gender, or having an intrusive effect on individuals of a particular sex or gender. Among others, the Convention covers: physical violence, verbal abuse, intimidation and mobbing, sexual harassment, threats and stalking.
It should be said that the problem of harassment in the legal context has a pronounced gender connotation. Nevertheless, in the sources of international law, as
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well as in the criminal legislation of foreign states, it is recognized that harassment can be committed not only by men and not only against women. However, according to statistics, women more than men suffer from this phenomenon.
Harassment, the foreign experience. The term "harassment" is used in the criminal legislation of many foreign countries, including: Austria, Belgium, Great Britain, Hungary, Germany, Denmark, Ireland, Spain, Italy, Poland, Portugal, France, Czech Republic, Finland, etc. [7] In the USA, where in October 2017 there took place the largest scandal around the producer, which revived the problem of harassment, there is no specific law on sexual harassment, but the relevant provisions are contained in the Civil Rights Act 1964, which prohibits any form of discrimination.
In the current criminal legislation of the Russian Federation, the term "harassment" is not disclosed. Some similarities with this encroachment are revealed in the objective side of the crime under Art. 133 of the Criminal Code of the Russian Federation, "Coercion to acts of a sexual nature".
Harassment in Russian history. Turning to the history of the development of this criminal law norm of domestic legislation, we will note that even in Article 169-a of the Criminal Code of the RSFSR of the year 1922, liability was provided for coercing a woman to have sexual intercourse using her material or service dependence. The development of legislation and judicial practice has led to an expansion of the range of actions within the objective side of the crime. In the Criminal Code of the RSFSR of the year 1926, in the disposition of Article 154, in addition to coercing a woman to have sexual intercourse, other actions aimed at satisfying the sexual passion of the culprit are recognized as criminally punishable.
With the adoption of the Criminal Code of the RSFSR of the year 1960, the norm on criminal liability for coercing to acts of a sexual nature (Article 118) has not changed. However, among researchers in the field of criminal law, there was a wide discussion about the relationship between rape and acts associated with coercing a woman to have sexual intercourse.
So, L.A. Andreeva noted that coercion to acts of a sexual nature is accompanied by threats, i.e., mental violence, in which the material dependence of the victim on the perpetrator does not matter for the criminal legal assessment [3, p. 154].
Harassment in the Criminal Code of the Russian Federation. With the adoption of the Criminal Code of the Russian Federation in the year 1996, the range of actions within the framework of the objective side of coercing to acts of a sexual nature was expanded. The disposition of Art. 133 of the Criminal Code of the Russian Federation lists the actions associated with coercion to the following acts: sexual intercourse, male homosexualism, lesbianism and other acts of a sexual nature. Among the possible ways of influencing the will of the victim in the disposition of the article are:
-blackmail;
-threat of destruction, damage or seizure of property;
-use of material or other dependence.
The term "coercion" in relation to Art. 133 of the Criminal Code of the Russian Federation is disclosed in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 04.12.2014 No. 16 [2]. It covers the demands for committing acts of a sexual nature, or actual committing them. Thus, the main purpose of the perpetrator is to commit acts of a sexual nature.
Theoretical background and discussions. In the domestic science of criminal law, the actions accompanied by coercion to acts of a sexual nature are interpreted in different ways.
According to some researchers, coercion can manifest itself in the expression of threats to harm the legitimate interests of the victim [4, p. 172]. A. A. Piontkov-skiy [5, p. 570] interprets the term "coercion" somewhat broadly, considering that it manifests itself not only when there is a threat of committing actions that worsen the situation of the victim, but also when promises to somehow improve the victim's situation are spoken out. This point of view seems to us controversial, since, in our opinion, coercion cannot take place in the absence of blackmail or threats. The latter term has a clearly negative character, since a threat to commit a positive action seems impossible. In addition, we consider that the proposal to commit acts of a sexual nature to a person, who is in any dependence on this person, without strengthening with blackmail and (or) threats, is indifferent from the point of view of criminal legal assessment.
F.R. Sundurov notes the need to concretize the type of dependence leading to coercion. One of the varieties of such dependencies, according to the author, is material (dependency, cohabitation with the perpetrator on the perpetrator's living space). "Other types of dependence" in Art. 133 of the Criminal Code of the Russian Federation, in the author's opinion, should be understood as arising from family, labor, work relations, as well as relations related to obtaining education.
Final statement. Thus, the state of the current domestic legislation does not allow for effective counteraction to manifestations of "harassment", since the range of actions covered by this term is wider than in the term "coercion to acts of a sexual nature" used in Art. 133 of the Criminal Code of the Russian Federation.
Conclusions. More and more often, attempts are being made in our country to reform legislation in this area, but, so far, none of such initiatives has received approval. An important obstacle is that the Russian Federation has not yet ratified the main international document on the fight against harassment - the ILO Convention. In our opinion, work in this direction should continue, since the social significance of the issue of harassment requires decisive action on the part of the legislator, and the perception of international experience in this matter will contribute to the effectiveness of the reforms.
References
1. Convention 190 on the Elimination of Violence and Harassment at Work [Electronic resource] // https://www.ilo.org/wcmsp5/groups/public/—
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ed_norm/—relconf/documents/meetingdocu-ment/wcms_712057. pdf (Date of access: 05.16.2020).
2. Resolution of the Plenum of the Supreme Court of the Russian Federation dated 04.12.2014 No. 16 "On judicial practice in cases of crimes against sexual integrity and sexual freedom of the individual" // Bulletin of the Supreme Court of the Russian Federation, N 2, February 2015.
3. Andreeva L. A. On the nature of coercion during rape / L. A. Andreeva // Jurisprudence. - 1960. - No. 2. - S. 153-158.
4. Gennadiev V. D. Protection in cases of sexual crimes / V. D. Gennadiev. - L.: [b. i.], 1997. - 77 p.
5. The course of Soviet criminal law. Special part: in 6 volumes - M .: Nauka, 1971. - V. 5. - 572 p.
6. Oxford Learner's Dictionaries [Electronic resource] // Acess: https://www.oxfordlearnersdictionar-ies.com/definition/english/harassment (Date of access: 15.05.2020).
7.European Institute for Gender Equality. [Electronic resource] // Access: http://eige.europa.eu/gen-derbased-violence/regulatory-and-legal-framework/le-gal-definitions-in-the-eu?vt[]=126. (Date of access: 16.05.2020).
