Definitions of Sexual Misconduct

Note from the Working Party. Some definitions which are in current legal usage, do not reflect current norms around gender and the use of pronouns. For the purposes of definitions in our survey and with relation to where to seek advice, sexual assault can be committed by any gender, and rape is committed by a person with a penis.

We have listened to a wide variety of professionals including those impacted by sexual misconduct. We do not use the terms “victim” or “survivor”. While victim is used as a legal term, the common usage of the words victim and survivor can confer an assumption as to how a person who has been targeted by a perpetrator feels. Many report to us they feel neither of the above, but are simply angry at what happened to them, furious that justice has not been served, and morally injured by the fact that the person who assaulted them remains in post.

Sexual Harassment

Sexual harassment is unwanted behaviour of a sexual nature. The law (Equality Act 2010) protects the following people against sexual harassment at work:

• Employees and workers
• Contractors and self-employed people hired to personally do the work
• Job applicants.

To be sexual harassment, the unwanted behaviour must have either:

• Violated someone's dignity, whether it was intended or not
• Created an intimidating, hostile, degrading, humiliating or offensive environment for them, whether it was intended or not.

If you are being harassed at work, sexual harassment can include:

• Sexual comments or jokes
• Physical behaviour, including unwelcome sexual advances or unwanted touching
• Displaying pictures, photos or drawings of a sexual nature
• Sending emails, messages, or other electronic communication with sexual content.

You do not need to have previously refused or objected to someone's behaviour for it to be considered harassment.

Sexual Assault

The definition of sexual violence varies across the United Kingdom:

1. The statutory definition of sexual assault under the Sexual Offences Act 2003 includes “indecent exposure, sexual threats and unwanted touching ("less serious") and rape or assault by penetration including attempts ("serious"), by any person including a partner or family member
2. In Northern Ireland the definition of Sexual Violence used throughout the tackling Sexual Violence and Abuse strategy is "any behaviour perceived to be of a sexual nature which is unwanted and takes place without consent or understanding"
3. In Scotland, the definition of violence against women as set out in the Scottish Government's 'Safer Lives: Changed Lives: A shared approach to Tackling Violence against Women in Scotland' - “Violence against women encompasses but is not limited to: Physical, sexual and psychological violence occurring in the family, within the general community or in institutions, including: domestic abuse, rape, incest and child sexual abuse”.

Assault by penetration

1. A person (A) commits an offence if
• he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else
• the penetration is sexual
• B does not consent to the penetration and A does not reasonably believe that B consents.
2. Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

Sexual assault

A person (A) commits an offence if:

1. he intentionally touches another person (B)
2. the touching is sexual
3. B does not consent to the touching, and
4. A does not reasonably believe that B consents.

Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

Rape

A person (A) commits an offence if:

1. he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis
2. B does not consent to the penetration, and
3. A does not reasonably believe that B consents.

Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

Victim, Survivor

A victim is someone who has suffered as a result of someone else's actions or beliefs, or as a result of unpleasant circumstances.

The UK Government Code of Practice for victims of crime acknowledges that the terms 'complainant' and 'survivor' are often used in the criminal justice system to describe a person who has made a criminal allegation to the police. However, for the purpose of this Code, the definition of a 'victim' is:

• "A person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence"

A survivor (of sexual misconduct) is someone who has gone or is going through the recovery process. In this survey, we do not intend to impose these terms in a prescriptive manner. We acknowledge and respect that individuals will differ in their use of these terms. Witness In general, a witness is someone who sees or perceives an event happening. In this survey, we do not to use this term in a legal sense. It more broadly refers to someone who has seen, overheard or been present for an event. It excludes hearsay.

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