Theoretical and legal aspects of sexual harassment as an administrative offense

The article provides a theoretical and legal analysis of sexual harassment as an administrative offense under Article 1737 of the Code of Ukraine on Administrative Offenses. The issue of legal liability for such actions is extremely relevant in the context of human rights protection and gender equality. For the first time, Ukrainian administrative legislation provides for a separate offense for sexual acts of a humiliating or offensive nature and committed against a person’s will. It is emphasized that the introduction of this provision is the implementation of Ukraine’s international obligations, in particular, Article 40 of the Istanbul Convention. The author outlines the main features of the offense: intentional nature of the actions, their sexual connotations, lack of consent of the victim, humiliation or offensiveness of the actions, as well as the methods of expression - verbal, non-verbal, including the use of information technology. Attention is drawn to the difference between the legal nature of sexual harassment as an administrative offense and criminalized attacks on sexual freedom or sexual inviolability. The analysis of the current version of Article 1737 of the Code of Administrative Offenses reveals a number of gaps: the absence of a sign of creating an intimidating, hostile, humiliating or offensive environment in the disposition; lack of physical fitness; and the difficulty of interpreting certain concepts (e.g., «body movements»). The author emphasizes the difficulty of distinguishing between socially acceptable flirting and sexual harassment, which makes it difficult to prove intent in such cases. The author also analyzes the approaches to the interpretation of the qualifying features of the offense under part two of Article 1737 of the Code of Administrative Offenses. Particular attention is paid to the issue of dependence of the victim on the offender. The author emphasizes the need to expand the list of qualifying features, in particular, in cases of actions against minors, persons with disabilities, persons in a helpless state, etc. The article analyzes the national judicial practice which is being formed in this category of cases, as well as the existing experience of foreign countries, in particular, the legislation of Georgia. The author draws conclusions about the need to improve Ukrainian administrative legislation to ensure effective protection against sexual harassment in accordance with international standards.