Eight units in Xuhui, Shanghai jointly say "no" to sexual harassment, from a criminal case to a prevention and control behavior guide
This morning, the Guidelines for the Prevention and Control of Sexual Harassment in Xuhui District, Shanghai were officially released. This guide is jointly formulated and released by the Xuhui District Procuratorate, the District Public Security Sub bureau, the District Commerce Commission, the District Education Bureau, the District Human Resources and Social Security Bureau, the District Culture and Tourism Bureau, the District Women's Federation, and the District Federation of Trade Unions. The aim is to guide government agencies, enterprises, schools, and other units in their jurisdiction to establish standardized and actionable measures for prevention, complaint acceptance, investigation and disposal, effectively implement legal responsibilities for preventing and controlling sexual harassment, and avoid or reduce the occurrence of sexual harassment.
A sexual harassment case leads to public interest litigation
The issuance of this behavior guide is directly related to a sexual harassment case handled by the Xuhui Procuratorate.
In December 2022, the Public Welfare Prosecutor's Office of Xuhui Procuratorate received a public welfare clue transferred by the Criminal Prosecution Department of our hospital: Jiang, a dental attending physician at a medical beauty clinic, used the trust of medical beauty personnel in doctors to conduct unnecessary physical examinations and sexually assaulted a female beauty seeker. After being prosecuted by the Xuhui Procuratorate in accordance with the law, the court convicted Jiang of the crime of forced indecency and sentenced him to one year in prison. He was also prohibited from engaging in medical and related work after the punishment was completed.
The criminal part of the case has been sentenced, but the problem that the public interest prosecution needs to solve has just emerged. On February 3, 2023, the Xuhui Procuratorate officially filed the case as an administrative public interest litigation case. On February 6th, the Xuhui Procuratorate invited lawyer volunteers with rich experience in preventing and treating corporate sexual harassment, as well as relevant departments, to jointly investigate the medical beauty outpatient department. After on-site questioning and reviewing the internal rules and regulations of the medical beauty institution involved in the case, it was confirmed that the institution had not taken effective measures to prevent and stop sexual harassment after Jiang's forced molestation case. Based on the potential legal risks of sexual harassment prevention and control in the enterprise, the lawyer volunteers systematically explained the management points and compliance suggestions to the medical beauty institution.
On April 27th, the Xuhui Procuratorate issued pre litigation prosecution recommendations to relevant functional departments, suggesting that they implement legal supervision of medical institutions involved in the case and promote the establishment of rules and regulations for the prevention and control of sexual harassment in relevant industries in the region. On June 14th, the Xuhui Procuratorate, in collaboration with relevant functional departments, held a review meeting on the rectification work of the beauty institution involved in the case. Together with members of the Chinese People's Political Consultative Conference, lawyers, and experts from the Xuhui District Quality Control Center among the "Yi Xin Wei Gong" volunteers, an evaluation working group was formed. After comprehensive inspection and evaluation by all parties, it was unanimously agreed that the medical beauty outpatient department involved in the case has been rectified in place.
Clearly define these behaviors as sexual harassment
While urging the involved beauty institutions to rectify, the procuratorial organs are also considering whether this case can make up for the shortcomings of existing sexual harassment prevention and relief mechanisms on a larger scale. So, the Xuhui Procuratorate focused on the prevention and control of sexual harassment and developed an electronic survey questionnaire to conduct research. Based on the investigation opinions, combined with relevant laws and regulations such as the Civil Code, the Women's Rights Protection Law, and the Shanghai Women's Rights Protection Regulations, eight units including the Xuhui Procuratorate jointly formulated and released this guide for the prevention and control of sexual harassment.
"The provisions of the superior law on which behaviors belong to sexual harassment are relatively vague. Based on our case handling experience and preliminary investigations, we have clarified the main forms of sexual harassment in the behavior guide." said Song Xiaohong, prosecutor of the Public Welfare Prosecutor's Office of Xuhui Procuratorate.
The behavior guide points out that sexual harassment mainly includes forms such as speech, text, images, and physical contact. Among them, verbal forms of sexual harassment include face-to-face comments on sensitive parts of a person's body, unwelcome sexual teasing, vulgar jokes related to sex, and other unwelcome sexual language. Sexual harassment in written form manifests as multiple sending of letters, mobile messages, WeChat, emails, faxes, etc. containing obscene and insulting content. Sexual harassment in the form of images refers to the repeated sending or display of pornographic images and items through email, Weibo, WeChat, and other forms. Physical forms of sexual harassment include unwelcome physical contact, such as patting, pinching, caressing, kissing, hugging, caressing, or improperly touching sensitive parts, demanding inappropriate sexual relations, using work-related threats or rewards for sexual support, making obscene movements towards others, and even exposing their genitals.
To prevent accidental harm, the behavior guidelines also specify several situations that do not constitute sexual harassment, including voluntary interactions and dates between both parties; Accidental physical contact; Accidental or isolated sexual language; Other socially and culturally acceptable language or behavior.
Guide the establishment of a sound mechanism for handling sexual harassment
"At present, the prevention and control of sexual harassment has become a consensus in the whole society. However, many enterprises, due to insufficient legal knowledge, do not understand which behaviors constitute sexual harassment, nor do they know how to establish a system for preventing and dealing with sexual harassment." Chen Ze, a volunteer and lawyer for "Yixin for the Public" at Xuhui Procuratorate, said that the behavior guide provides clear and feasible operational plans for this, which will help relevant units establish regulations.
For example, the behavior guidelines suggest that departments responsible for preventing and controlling sexual harassment can be located in human resources departments, disciplinary inspection departments, trade unions, etc. The gender ratio of its members can be set based on the actual gender ratio of the unit, to avoid situations where complaints or whistleblowers find it difficult to speak up about the opposite sex. In order to facilitate complaints and reports from employees and students, a hotline, dedicated mailbox, email, etc. should be set up, and all relevant personnel should be informed. The department responsible for preventing and controlling sexual harassment should follow the principles of speed, objectivity, and comprehensiveness in conducting investigations after receiving complaints, and ensure fairness and impartiality in the procedures. Protect the privacy of the parties involved and prevent further harm.
The behavior guide also breaks down complaints and handling sexual harassment into seven steps, namely meeting with the complainant, providing opportunities for the respondent to respond, establishing an investigation team to carry out investigation work, providing feedback on the investigation situation, organizing mediation, imposing corresponding penalties in accordance with the law and regulations, informing the parties of the handling results, and their right to apply for reconsideration.
The behavior guide also takes into account some details in the handling process. For example, it is pointed out that the complaint, investigation, and mediation procedures for sexual harassment cases are non-public procedures, and the handling personnel are not allowed to publicly disclose the mediation events. Except for publicly disclosed matters, the information, matters, and handling processes of both parties should be kept confidential.
The relevant person in charge of Xuhui Procuratorate stated that the code of conduct mainly applies to government agencies, enterprises, schools and other units within the jurisdiction, and can be used as a reference for preventing sexual harassment in public places such as buses, subways, shopping malls, and cinemas.
