1.2-Meios de identificação, formas e modalidades-Roberta Negrão
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Hello, my name is Roberta Negrão, I am a
Federal Prosecutor and a member of the program
to assist in the prevention and combating of
sexual harassment at the Federal Attorney General's Office. In
this module, I will be discussing
methods of identification,
delimitation, forms, and modalities of
sexual harassment. Our hope is that
after this module, you will be able to
identify whether a given conduct constitutes
sexual harassment for the purpose of applying the
appropriate disciplinary sanctions and understanding the
modalities of sexual harassment. Let's
begin by understanding how to identify
sexual harassment by recognizing its elements.
Sexual harassment is defined as the act of
coercing someone with the intention of
obtaining sexual advantage or favor, with the
objective of disturbing or creating an
intimidating, hostile, degrading,
humiliating, or destabilizing environment for the
victim. Sexual harassment is intentional,
meaning the harasser has the purpose or
objective of sexually coercing the harassed person. To
this end, they engage in conduct
of a sexual nature or content and are
characterized by the non-consent of the
harassed person. It is an
unwanted, disapproved, unpleasant, offensive, and
impertinent conduct, and beyond the victim's
refusal, they resist and
do not accept it. The conduct practiced by the
harasser—and note there's a difference
here—if the conduct is accepted and reciprocated,
we might be dealing with an act of
flirting, for example, but if it
's not accepted and there's resistance from the victim,
we're dealing with an intimidating act of a
sexual nature. And, unlike
moral harassment, sexual harassment is consummated even if it
occurs only once and even if the
sexual favors are not given by the
harassed person. Finally, it doesn't depend on
sex or sexual orientation; both the aggressor
and the victim can be
male or female, heterosexual,
homosexual, transgender, LGBT. Furthermore, when
faced with an act of sexual harassment, we
must always consider the context,
conduct, and intention, and analyze this act in
light of this delimitation, without forgetting the
evaluation of whether the
requirements of the
administrative infraction are met, that is, what is stated in the
articles of Law 8112 of 1990 that define
administrative infractions. This is because the practice of
sexual harassment, for the purposes of
disciplinary liability, must be
understood as any conduct of a
sexual nature manifested in the
exercise of a public office, employment, or function,
or by reason thereof. Therefore, we must
analyze and ask ourselves if the
behavior can be qualified as
adequate to the abstractly expected standard
of
Public Servants; whether the objective of the action sought the
conception of the public interest or the
private interest of the
agent; whether the author is
borrowing the formal attire of
public office to satisfy his
personal desires. Well, these are the questions we
have, and
now we will talk about forms of
inappropriate sexual conduct. Sexual harassment can
manifest itself in various ways; it
can be verbal, both explicitly and subtly,
or even disguised, through
unwanted conversations about sex,
telling jokes or using expressions
of sexual content,
verbal abuse or rude, humiliating,
embarrassing, or
sexist comments, offensive or double-
meaning phrases, indiscreet questions of a
sexual nature about the worker's private life.
Harassment can also be
non-verbal through acts and gestures of
sexual connotation, for example,
unwanted intimate physical contact of a sexual nature,
electronic messages
with requests for
sexual favors or sexual propositions made
with insistence, threats, or pressure, sending
images and videos of sexual content,
displaying
pornographic material, comments on
social networks, among many others. In all
these situations, it is important Highlighting that
physical contact is not a requirement for the
configuration of sexual harassment,
and the victim's silence cannot be
considered acceptance of the
sexual conduct, nor does it negate the harassment.
At this point, it is important to emphasize that
sexual harassment does not stem from the victim's conduct
but from the harasser's behavior,
which intentionally aims to
coerce someone to obtain
sexual favors, with the objective of
disturbing and creating an intimidating,
hostile, degrading, and humiliating environment that
destabilizes the
victim. In all cases, we have situations
with inappropriate and offensive sexual innuendos
that can be explicit or
veiled and that violate the victim's sexual freedom.
At this point, we emphasize that
any inappropriate sexual conduct must
be rejected from the
workplace. Now let's address the
types of
harassment. It can be vertical, occurring
when a man or woman in a
superior hierarchical position uses their
position of authority to coerce
someone with intimidation, pressure, or
other interference with the objective of
obtaining some sexual favor. This
type of sexual harassment is directly
linked to the abuse of power and
also includes the demand for
sexual favors by teachers in
relation to students. For example, this
classic form. Sexual harassment is a crime and is
covered under Article 216-A of the Brazilian Penal Code,
which considers
the conduct of coercing
someone with the intent of obtaining
sexual advantage or favor, taking advantage of one
's position of
hierarchical superiority or ascendancy inherent in the
exercise of employment, position, or
function, as a type of sexual harassment. However, sexual harassment can also
be horizontal, occurring when there is no
hierarchical distinction between the
harasser and the harassed. For example,
coercion between
colleagues is not a
crime of harassment under the Penal Code,
but it can be classified as the crime of
sexual molestation under Article
215-A, which covers the conduct of committing a lewd act
against someone without their consent
with the objective of satisfying one's
own or a
third party's desires. Although for penal purposes,
only cases involving hierarchy or
ascendancy are considered crimes of sexual harassment, for
disciplinary purposes, in cases
where the conduct is committed by a
public servant, both
vertical and horizontal modalities are considered
a very serious disciplinary transgression.
and which are punished
in the
administrative sphere. In both cases, once the
conduct is classified
as sexual harassment, the penalty applied should
be
dismissal. In this context, we need to
clarify that the understanding expressed in
paragraph 1 of 2023 of the Attorney General's Office (AGU), endorsed
by the Attorney General of the Union and approved
by the President of the Republic in September
2023, means that this opinion, having been
approved by the President of the
Republic, must be applied to all
bodies and entities of the
direct or indirect federal public administration.
Now, offensive conduct against
sexual dignity
practiced in the workplace or
related to the service is
punishable by
dismissal, provided it falls within the
terms of article
1179 combined with article 132, item 13
or item 5, all of the legal statute
of the Federal Public Servant, which is
Law
8112. In other words, in the disciplinary sphere,
sexual harassment is defined as
conduct of a sexual nature that uses
the position to obtain personal gain or gain for
another, to the detriment of the
dignity of the public function, resulting
in the application of the penalty of dismissal. Dismissal
for transgression of this conduct or for
public incontinence and
scandalous conduct in the
workplace. I emphasize that sexual harassment
is a very serious disciplinary offense,
and the
investigating committee and the judging authority
must assess whether the evidence in the
administrative process constitutes
sexual harassment. I reiterate that it
is a sexual conduct that can be
classified under the types foreseen in
article 117, paragraph 9, combined with 132,
paragraphs 13 or 5 of Law 8112 of 1990. Once again, if
the conduct is classified as
sexual harassment, there is no discretion to
apply a less severe penalty;
the penalty of dismissal must be applied.
With this, we come to the end of this
module. We hope you have
understood the elements of
sexual harassment and are able to identify whether a
given conduct is sexual harassment and
its modalities. I thank everyone
for their attention and indicate the
contact email for the program to
assist in the prevention and combat of
sexual harassment of the Federal Attorney General's Office (
PGF).
[Music]
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