Hard to define

assault  There’s been a lot of talk lately about sexual misconduct. Everyone from Hollywood personalities to the President of the USA, to Canadian politicians are being called out for some form of it. What is sexual misconduct? And is it me, or does that word sound pretty tame? A hockey player can get a 2 minute misconduct, that doesn’t help define the word though. It lacks precision, and doesn’t appropriately describe the seriousness of the violence. The Ottawa Citizen newspaper had a piece on February 3rd discussing the terms. Read below for their definitions of each.

“Sexual assault is a legal term and constitutes a criminal offence. In the criminal law context, sexual assault means non-consensual touching of a sexual nature. Sexual assaults are prosecuted by the Crown. One can also be sued civilly for non-consensual sexual touching. This is called sexual battery.”1

“Sexual harassment is a form of workplace discrimination. In Ontario, it’s defined as engaging in a course of vexatious conduct that is known or ought to be known to be unwanted. It includes making sexual jokes, asking for sexual favours, unnecessary physical conduct, demanding hugs, repeatedly requesting a date, using pornography at work etc. These claims are dealt with through a complaint process conducted by the Ontario Human Rights Tribunal.” 2

Sexual misconduct is a social issue and not a fixed line-it shifts as women gain access to economic and political equality. It’s not found under law, in human rights codes, or collective agreements. It might be found under professional disciplinary codes. It’s clear we don’t have a consensus on it, either. I can give you a clear definition of sexual assault. But for sexual misconduct, I don’t think I could give a clear definitions, except that there are three key considerations. First, a power imbalance. Second, coercion, whether implied or explicit. Third, predatory behaviour.”3

1 and 2. Elaine Craig; associate professor at Schulich School of Law at Dalhousie

3. Elizabeth Sheehy: Shirley Greenberg Chair for Women and the Legal Profession at the University of Ottawa.

I hope these definitions help differentiate between each type of assault.

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