Harvey Weinstein, one of the most powerful men in Hollywood, was recently stripped of his influence, company and public reputation after a flooding of sexual harassment allegations came to light in early October. It was impossible to miss, and for good reason.
However- perhaps unbeknownst to most- sexual harassment and assault were often used interchangeably in many articles. And while the technicalities of labeling sex crimes may seem insignificant, they can legally carry drastically different punishments.
So what are these differences and why are the terms so often used interchangeably?
Legally speaking, sexual assault, sexual harassment and rape all fall under a broader umbrella of sex crimes. The below legal summaries are explained by Riverside sex crimes defense lawyer, Graham D. Donath.
- Indecent Exposure: Exposing genitals to another person in an effort to intimidate, arouse or insult; usually no physical touching of another person, or the sex crime may be elevated to sexual assault.
- Lewd Contact, Penal Code 647(a): While indecent exposure falls under lewd contact, these sex crimes generally refers to public sexual activity. This may include receiving/giving oral sex (even if consensual), public masturbation or soliciting lewd conduct.
- Illegal Pornography: It’s a crime to transmit or dispers images of a minor, called child pornogrpahy. Generally, any sexual crime involving a minor will be held to child molestation or abuse laws carrying harsher penalties for the criminal. California was also among the first states to criminalize “revenge porn” under Penal Code 647(j)(4) in 2013, allowing criminal prosecution for those who “intentionally distribute” sexual images of another person.
- Prostitution/Pimping: It’s illegal to profit from sexual favors; police can charge all parties involved in prostitution.
Sadly, the complete list of California sex crimes is much longer; however, these are some of the more commonly persecuted ones beyond rape or assault. A single sexual act may fall under many crimes, leading some to be charged on multiple accounts of sex crimes and as a result, cumulative penalties.
Of course, sexual harassment, assault and rape should also be included in the above list.
DEFINING SEXUAL HARASSMENT
Sexual harassment is unwanted sexual remarks or advancements, most commonly in a workplace or other professional or social setting. Under California law, sexual harassment in the workplace falls under two categories: quid pro quo or hostile work environment.
Quid pro quo, latin for this for that, is when a supervisor or employer with pull over another employee offers benefits- promotions, raises, continual employment etc.- in return for sexual favors. An exchange doesn’t have to be explicitly stated, either; If a hiring manager touches an interviewee’s thigh asking, “Don’t you want this job?”, it’s enough for quid pro quo.
Differing from Quid pro quo, “hostile work environment” sexual harassment can be committed by supervisors and non-supervisors. Any workplace behavior that is either severe or pervasive enough to create an abusive work atmosphere for one or more employees is considered harassment. The “or” is key here- one instance, if severe enough, is enough to create a hostile work environment. Groping, slurs, taunts, grabbing and intimidation are all examples. Also unique, anyone who witnesses such harassment may file a claim against the employer, rather than just the victims.
DEFINING SEXUAL ASSAULT
While it’s under the sex crimes umbrella, sexual assault also serves as an umbrella term. Sexual assault is when one individual forces another to engage in any sexual act against his or her will- “any” meaning not explicitly intercourse. Rape, discussed below, falls under this umbrella along with groping, sexual battery or attempted rape. Some sexual harassment also falls under sexual assault, which may be why the two words are so often interchanged.
Any unwanted touching of another’s intimate parts, legally defined as “sexual organs, anus, groin, or buttocks of any person, and the breast of a female,” is sexual assault under California Penal Code 243.4. A notable case outside of Harvey Weinstein is Taylor Swift’s recent victory in her sexual assault case against a radio DJ who touched her butt during a photo op.
DEFINING RAPE
When sexual assault progresses to nonconsensual intercourse, the crime is elevated to rape. Legally speaking, rape occurs if any of the following happen:
- Victim was unconscious, sleeping or heavily intoxicated
- Victim lacked ability to consent because of age (under 18), developmental or intellectual disabilities, intoxication or other physical incapacity
- Victim engaged in sex out of fear of immediate danger or bodily injury to another
- The rapist used intimidation, fear or threats
- The rapist made a fraudulent representation that led to intercourse
The Harvey Weinstein allegations fall under almost all of the aforementioned sex crimes. Actresses Angelina Jolie and Gwyneth Paltrow say Weinstein sexually harassed them by inappropriately hitting on them and asking for massages in a private hotel room. Model Samantha Panagrosso claims he pushed her on a bed and tried to grope her, sexual assault. At least 40 women have come forward with similar stories, many suggesting quid pro quo. Six women also allege Weinstein raped them.
The Los Angeles police department launched an investigation into one anonymous rape allegation- the only one thus far to fall within California’s 10 year statute of limitations. New York and London are also currently investigating allegations of rape or forcible sex acts.
If convicted in California, Weinstein likely faces three to eight years in prison, but may be even lengthier depending on unique circumstances and evidentiary support. Civic penalties, fines, can range from $2,000 to $25,000; and given Weinstein’s financial success, possibly much more. Sexual assault convictions generally carry less severe penalties, with misdemeanors carrying up to six months in jail and $2,000 in fines and felony/sexual battery offenders facing up to four years in prison and $10,000 in fines. No matter the charges, all those found guilty must also register as a sex offender.
If you’ve been a victim of a sex crime and are looking for help, call the National Sexual Assault Hotline, part of RAINN. Call (800) 656-4673 for free, confidential help or visit them online.