Exploring the Boundaries of Sexual Harassment in Judicial Practice

Komron Tursunmurodov

Image source: www.mcgowanhood.com 

Sexual harassment is a form of unwanted behavior that is usually targeted towards women, violating their rights and causing feelings of distress, fear, humiliation, or offense. It wasn’t until the enactment of LRU-829 in 2023 that this behavior was officially recognized as an administrative offense. Interestingly, during that year, 666 individuals were punished for committing sexual harassment, as reported by the Supreme Court of Uzbekistan.

This blog post analyzes the recent judicial practice regarding what actions are considered as sexual harassment in Uzbekistan. It also provides insights on distinguishing sexual harassment from an attempted rape.

What is sexual harassment?

The Equal Employment Opportunity Commission defines it as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. According to the United Nations General Recommendation 19 to the Convention on the Elimination of all Forms of Discrimination Against Women, sexual harassment includes such unwelcome sexually determined behavior as physical contact and advances, sexually colored remarks, showing pornography and sexual demand, whether by words or actions.

Uzbekistan’s Code of Administrative Liability (CAL) stipulates that sexual harassment is a commission against a person of one-time rude or repeated actions of a sexual nature, unwanted for them and degrading their honor and dignity, expressed in the description of their appearance or physique, gestures, touching, calling, that has a sexual inclination (Article 41¹).

In other words, sexual harassment is unwelcome behavior of sexual nature manifested in actions that degrade a person’s honor and dignity, humiliate and offend them. For example, a man throws unwanted words of sexual nature to a woman walking by. Or a woman of loose morals offers a man to have a sexual intercourse.

What kind of conduct is classified as sexual harassment in Uzbekistan?

The interpretation of Article 41¹ of the CAL suggests that any actions of a sexual nature – either verbal or non-verbal – are subject to administrative liability. The article also outlines specific behaviors that fall under this category, such as describing a person’s appearance or physique, making gestures towards a person, touching, or calling a person. These actions must have a sexual inclination, which means a person’s actions should aim to make another person feel discomfort, upset, humiliated and offended. Notably, the article does not specify the gender of the perpetrator or the target of the offense, leaving room for situations where same-sex harassment can occur. Therefore, if a male sexually harasses another male, i.e. inappropriately touching his sexual organs, this conduct should incur the liability under Article 41¹ of CAL.

Further analysis of judicial rulings in Uzbekistan sheds light on how courts classify actions as sexual harassment. The analysis suggests that the following actions constitute sexual harassment:

1. Sending sexually explicit messages via social media platforms. In a case from 2024, D.M. sent offensive messages to F.Sh., a married woman, with the intention of initiating a romantic relationship, using a Telegram messenger. The court ruled that D.M.’s actions were of a sexual nature. From this case, two key takeaways should be taken into consideration: first, harassment can take the form of verbal communication transmitted through social media platforms like Telegram, Instagram, etc.; second, any message containing solicitation for unwanted romantic involvement is deemed as sexual harassment. Interestingly, a message can be in the format of emojis, photos, as it is seen in another verdict of the court.

2. Initiating sexual activity. In 2024, T.M. called A.N. and asked the latter for sexual intercourse. The judge decided that T.M.’s action constituted an administrative offense under Article 41¹ of CAL, classifying it as sexual harassment.  This serves as an example that offering someone sex can be considered a form of sexual harassment. Therefore, individuals offering sexual services, such as prostitutes, should also be held accountable for their actions when suggesting involvement in sexual activity as per this article. However, if their actions constitute prostitution – the practice or occupation of engaging in sexual activity with someone for payment – they will be subject to liability under Article 190 of CAL.

Interestingly, on April 4, 2024, R.Kh. phoned to M.A. and stated, “if you come to the dormitory of the university, we can rest together” (excerpt from the court decision). While this may seem like an innocent invitation at first glance, the court interpreted it as an indirect solicitation for sexual activity. The court ruled that R.Kh.’s words held a sexual connotation and constituted sexual harassment.

3. Inappropriate touching with sexual intent. In 2024, Sh.A., while driving his car, intentionally touched P.K., a passenger. Notably, if a touch is accidental and not intentional, it does not qualify as sexual harassment. However, in this case, the intentional act of touching the passenger’s hand by the driver indicated a sexual motive, portraying the nature of the action as sexual. Similarly, if a person touches an individual’s neck, leg, breasts, hair, face, etc. with a sexual intent, the court will bring the violator to the liability. Notably, touching can be performed with hands, legs and tongue. For instance, on May 10, 2024, B.B. touched S.M.’s hands, hugged her, and subsequently attempted to kiss her neck, showcasing a clear sexual intention in the act.

4. Exhibition of sexual organs. On May 4, 2024, A.A., after dining at a café, called one of the staff members, D.E., to his table. When she approached, A.A. proceeded to expose his sexual organ to her. The court recognized this behavior as an act of sexual harassment. However, another instance of a man walking naked on the streets of Tashkent deserves our attention because his actions constituted an administrative offense under Article 183 of CAL (Petty hooliganism). Both cases highlight a violation of societal norms; however, the setting in which the actions took place differed – the first being in a café (a private establishment) and the second in a public space. If the café had been a public place and witnessed by many, it would be possible to qualify A.A.’s actions as petty hooliganism. Therefore, the court came to the correct conclusion by recognizing A.A.’s actions as sexual harassment.

5. Declaration of Love. On May 31, 2024, O.N. professed his love to a minor G.Y. and told that “he loves and likes her.” This case shows that one might be held liable for expressing love. The court considered not only the man’s declaration but also the girl’s response – whether it was positive or negative. Besides, according to the Family Code of Uzbekistan, marriage is only permissible between adults. Since G.Y. was a minor, expressing romantic feelings towards her with marriage intentions qualifies as sexual harassment.  Nonetheless, if an adult man expresses his love to an adult woman, it may not always be categorized as sexual harassment Thus, a case-by-case evaluation is necessary to determine if the expression of love crosses the line into sexual harassment.

Why is it important to distinguish sexual harassment from attempted rape?

On May 2, 2024, A.R. locked his car doors and proceeded to touch Sh.T.’s hands, legs, and breasts, and even went as far as to propose sexual intercourse. Then, A.R. attempted to remove her clothing which resulted in Sh.T.’s strong opposition by shouting and resisting. Court ruled over that A.R.’s actions constituted sexual harassment. However, an appeal court overturned the initial ruling, emphasizing that A.R.’s actions, particularly his attempt to undress Sh.T. against her protests, were not fully considered.

In my opinion,  courts  should consider the following criteria to distinguish sexual harassment from an attempted rape:

Conclusion

This blog post analyzed significant court cases where actions such as sending sexually explicit messages via social media platforms, initiating sexual activity, inappropriate touching with a sexual intent, exhibiting sexual organs, and declaring love have been recognized as instances of sexual harassment. It also shed light on the issue of distinguishing sexual harassment from an attempted rape. While these offenses may share similar characteristics, it is crucial for courts to consider the given criteria, specifically the use or non-use of violence in actions of the perpetrator – the main difference of sexual harassment from an attempted rape.

Cite as:  Komron Tursunmurodov, “Exploring the Boundaries of Sexual Harassment in Judicial Practice”, Uzbekistan Law Blog, 23.08.2024.