1.4-Desdobramentos jurídicos: enquadramento legal e direitos das vítimas-Kamila Tabaquini

Hello, everyone! My name is Camila Tabacchini, I am a federal prosecutor, I am a member of the Program for Assistance to Prevention and Combat of Sexual Harassment within the framework of the federal authorities and public foundations, and in this class we will talk about the legal unfoldings of the practice of sexual harassment and the right of victims.

What we want is for you to leave this module aware of the rights of victims of sexual harassment and also of the spheres of responsibility possible to the assaider and to the third parties that respond to their conduct. To begin, you need to know that there are four possible spheres of responsibility of the assaider: the worker, civil, criminal and administrative.

Next, we will deal with each one of them. When the assaider and the victim have a working relationship, or when the harassment occurs in the workplace and the assaider is linked to a working relationship with his employer, it will be possible to work responsibly.

If the assaider has a work relationship with the victim, he can seek a compensation for the moral damage suffered in the labor justice. This compensation is based on Article 223 of the CLT, which we recommend reading. A clear example is that of the employer who sexually assaulted his employee.

In this case, it is possible that the employee seeks, in a work-related complaint, the reparation for damages to his honor, image, intimacy, self-esteem, sexuality and health. Another consequence is the dismissal for fair cause of the employee who practices sexual harassment against his employer, supervisor or anyone, especially when in the service.

It implies saying that if a third party of the public administration practices sexual harassment against the workers of the institution or other colleagues of the work or service users, they can be fired for fair cause, losing several labor rights.

We understand that, even if the harassment is committed outside the service, but being related to it, the dismissal can be applied with foundation in Article 482, line B of the CLT, which deals with the incontinence of conduct or misconduct.

In the civil sphere, we have the possibility of the victim seeking the reparation of the damage suffered with sexual harassment, both from the assaider and those who are responsible for their conduct. When the assaid person does not have a labor link with the assaider, which would allow her to seek labor reparation, she will be able to file her rights in the common justice.

The forecast for civil responsibility, in general terms, is in the articles 186 and 927 of the Civil Code. There is also in the Civil Code and in the Federal Constitution the forecast for objective responsibility, which is one that does not require a guilty conduct of the responsible. Anyone who practices an illicit act that causes harm to the victim, even if it is exclusively moral, must be warned.

Let's suppose that a student is harassed by a teacher. In this case, she may seek a compensation in the civil sphere for the moral damage suffered. At this point, it is worth mentioning the possibility of the employer also being responsible for the acts carried out by his employees in the work exercise and for his own sake, even though his guilt is nonexistent. It is the employer's objective responsibility.

In the case of the student harassed by the teacher, used as an example, in addition to the request for reparation against the harasser himself, it is still possible that the request also returns to the employer, for example, the school or the university. But what if the harasser is a public servant, for example, an environmental agent of the authority?

Likewise, in addition to the possibility of civil reparation being sought against the employer itself, it is also possible that the public entity is held responsible. This responsibility is known as the State's objective responsibility and is provided in Article 37, paragraph 6 of the Federal Constitution.

To outline and differentiate the subjective responsibility from the objective, let's look at this diagram. In civil reparation, which is subject to subjective responsibility, it is required that the illegal act, which is the action or omission that violates the law and causes harm to the other, be verified. The damage and the causal link between the illegal and the damage.

This scheme for sexual harassment, as a rule, for the assaider to be condemned to reparation, would remain to demonstrate the occurrence of the harassment, the damage to the image, honor, intimacy, sexuality, health suffered by the victim, and the nexus of causality between these.

As for the objective responsibility, it is proven that: the assault was committed by the employee of the company or public servant in the exercise of work, public function or for his own reason,

and the damage suffered by the victim, regardless of the employer's or the State's fault, it is possible that they will respond by the civil reparation of the assailant. We now move on to the criminal sphere of responsibility. The crime of sexual harassment is brought in Article 216 of the Criminal Code, thus being defined:

"to constrain someone with the intention of obtaining sexual advantage or favor, prevailing the agent of his superior and hierarchical status or ascendancy inherent to the exercise of employment, position or function." "The penalties are from detention from 1 to 2 years and are increased by one-third if the victim is under 18 years."

It is important to note that the crime of sexual harassment in the Criminal Code requires a special circumstance in relation to the harassment person for its configuration, which is the condition of superior and hierarchical or ascendant inherent to the job, position or function in relation to the victim. Let's look at practical examples. Suppose that a teacher sexually harasses a student.

It is questionable that the teacher has ascendancy due to the occupation in relation to the student, thus configuring the crime of sexual harassment.

The same would happen if the assaider were a federal prosecutor and the assaider an intern. Now, if the opposite happens, the intern is the assaider and the prosecutor is the assaider, the crime of assault is not configured, but it can be framed as a crime of sexual impunity. Therefore, it is important to know the existence of the crime of sexual impunity in the Criminal Code,

defined as: "to practice against someone, and without his knowledge, libidinous act with the aim of satisfying his own lasciviousness or third party." Note that sexual importunity does not require the existence of hierarchy or ascendancy between the assailant and the victim. What I'm trying to say is that many facts denounced as sexual harassment are actually sexual importunity.

which has penalties greater than sexual harassment. It is also worth mentioning the little-known Article 241 of the Child and Adolescent Statute, which undoubtedly criminalizes the harassment against children, that is, those under 12. The crime is thus defined:

"alicear, assediar, instigar ou constranger, por qualquer meio de comunicação, criança com o fim de com ela praticar ato libidinoso". Therefore, the practice of sexual assault against 12-year-olds is provided in the ECA,

not requiring for its configuration the existence of the hierarchy and ascendancy relationship between the assailant and the victim. It also has even more penalties than if practiced against teenagers and over 18 years old. Let's use another example to visualize this crime. If the janitor of a school starts sending messages to a 12-year-old student asking for photos of their intimate parts,

Even though there is no hierarchy inherent to the employment between them, this assailant can be punished for the crime of Article 241 of the ECA. The following diagram shows the difference between the crime of sexual assault, practiced against teenagers and over 18 years old, provided in the Criminal Code, and the sexual assault against children, provided in the ECA.

In short, the difference lies in the lack of hierarchy or ascendancy for the configuration of sexual harassment by the ECA when the crime is committed against a 12-year-old and through means of communication. Finally, let's talk in general about the administrative sphere.

which is the responsibility field of the assailant when he is a public servant not subject to CLT. The statute of the public servant disposes to be the duty of the servant to maintain conduct compatible with administrative morality. There is also an express prohibition of using the position to achieve personal or other benefit, in detriment of the dignity of the public function.

Obviously, the conduct of sexual harassment is totally incompatible with the public function occupied by the server, being prohibited. Configuring sexual harassment practiced by the server, after the proper administrative and disciplinary process, the dismissal is imposed.

It is worth mentioning the resolution 330 of the Union's Accounts Court, which approved the Code of Ethics of the Accounts Court's servants.

"expressly implying that sexual harassment of any nature is condemnable and forbidden." In particular, the appearance of the Federal General Prosecutor's Office, number 1 of 2023, which unified the understanding to be followed by all federal prosecutors, along with 165 federal authorities and public foundations, deserves prominence.

that the practice of sexual harassment is a very serious conduct, and must be punished with the maximum penalty provided in the statute of the servant, that is, with the dismissal. These are great advances in the sphere of administrative responsibility of harassment, leaving no room for any discussion about the absence of the disciplinary infraction for penalization. The last point to be analyzed

is the incommunicability of the instances, that is, the rule of independence of civil, administrative and criminal responsibility, unless there is criminal absolvation that denies the existence of the fact or its authorship.

Finally, it is possible the civil, criminal and administrative or labor responsibility of the assaider, concomitantly. Suppose that a public servant commits sexual harassment against a public servant of the same hierarchy as yours. He may even be punished in the criminal sphere for the practice of sexual impunity,

in addition to being sentenced to civil reparation for the moral damage suffered by the victim and even being dismissed from public service. On the other hand, if there is criminally absolved that denies the existence of the facts that characterize the crime or the authority, the administrative and civil responsibility of the assaulter will be removed.

In other words, if in the criminal process filed against the public servant there is an absorption that denies the existence of the assault crime or that the servant was its author, he will not be able to persist in the dismissal of the public service and will not be condemned to any compensation to the victim. We have reached the end of this module and we hope that you have understood the various legal developments of sexual assault.

Don't forget that the victim is the one who suffers the most. Thank you.