On Tuesday, March 19, 2024, the Senate adopted the expansion of the Sexual Crimes Act. The law is expected to come into effect on July 1st, 2024. An important consequence is that a sexual act in a hierarchical relationship, such as the employment relationship between a manager and subordinate, may be more likely to be punishable. Read in our blog what changes because of this new law and what it will entail for workplace policy.
What will change?
The modernization of the Sexual Offenses Act is based on consent and free will. Involuntary, unequal, or unwanted sexual contact will become a punishable offense, regardless of whether there is coercion. This makes a person punishable if he or she knows or can reasonably know that the other person does not want a sexual act and does not agree to it. The person who initiates the sexual contact is presumed to understand that the other person does not want sexual contact when the person indicates that he or she does not want it, starts to scream, cry, push away, or even a passive rejection such as freezing or not showing any reaction.
Furthermore, in the modernization of the Sexual Offenses Act, attention is paid to relationships of dependency, for example between a manager and subordinate. Although not every sexual contact within a relationship of dependency is considered punishable, it is more likely to be assumed that there is no voluntary consent and therefore criminality is more likely to arise. Important factors include the degree of functional inequality, the influence of the manager in the assessment and the possible fear of negative consequences for the working relationship or career if refusing sexual contact.
In addition, the new Act makes sexual harassment in public a punishable offense. Sexual harassment includes, for example, whistling, sexual comments and making penetrative movements. To assess sexual harassment, the content, nature and context of the sexual expression are taken into account and not the experience of the people involved. The term public includes buildings accessible to the public and online social media and internet forums accessible to the public.
Consequences for employment law
The new law will make sexual misconduct in the workplace punishable more quickly, especially in cases where there is a relationship of dependency, such as between a manager and a subordinate.
At first glance, the law does not appear to apply to sexual harassment in the workplace because the workplace is not considered a public space. However, the new law does apply when sexual harassment takes place during, for example, a work drink in a public entertainment venue. In addition, sexual expressions on a colleague’s public social media account may also fall within the scope of the law.
The extension of this law is expected to strengthen the position of the employer. Now that an employee who is guilty of sexually inappropriate behavior can be criminally convicted at an earlier stage, possible (immediate) dismissal can now also be considered justified at an earlier stage.
Please note: if the criminal court does not convict, the employer can (in some cases) still proceed with dismissal. If the criminal court does reach a conviction, this does not necessarily mean that a dismissal is fair; all circumstances of the case must be taken into account.
With the modernization of the Sexual Crimes Act, victims of sexual harassment and/or unwanted sexual relationships in a hierarchical relationship at work would be able to report the incident to the police sooner. The question is whether this is always desirable. It is generally known that the capacity of the police and the Public Prosecution Service is limited, so the chance of criminal prosecution is not great, which leads to frustration and disappointment. Criminal proceedings are also public and the bar of proof is higher than in civil law. The risk of secondary victimization (re-victimization due to an incriminating procedure) is high.
The employer and victims can resolve many issues through (civil) employment law, including granting (immediate) dismissal and filing compensation claims. In order to strengthen the legal position of the employer in this context, it is advisable for employers to draw up a concrete code of conduct, which explicitly states that sexual relations between managers and subordinates are not permitted unless the employer has been (priorly) informed. This together with a general ban on sexual harassment in the workplace, with concrete examples. It is always advisable to include disciplinary sanctions for non-compliance with these regulations. We are happy to advise on such clauses in the code of conduct.