Cairo, 7 April 2014
With the problem of sexual harassment worsening in Egypt, ECWR, with the help of a group of legal experts, has proposed a draft law with an explanatory memorandum on sexual harassment in order to stamp out this problem. This proposed bill from ECWR to Egypt’s President, Chief Justice Adly Mansour, comes to assist Egypt pass legislation to address this problem.
The bill draws on an ideology of punishment according to which penalties act as a deterrent when applied effectively and not necessarily when they are severe. ECWR therefore suggests using the ancillary penalties found in Egypt’s Penal Code (at Article 25), in addition to measures expressed in Article 19-bis. Article 17, which refers to the discretionary powers of the presiding judge in determining the means and tools of sanction, can also be employed. The proposed revised text can be incorporated into Article 278 on the penalties for acts of public indecency and Article 279 on the penalties for indecent acts in general, whether in public or private, so that all instances of sexual harassment are covered and punishment can be scaled accordingly.
ECWR believes Egyptian society needs its lawmakers to update existing legal provisions to include the crime of sexual harassment whilst a review of the other provisions is carried out with definitions narrowed and penalties scaled according to the severity of the crime. The language used to define individual crimes needs to be more precise and specific provisions warranted by the circumstances surrounding the crime, whether extenuating or aggravating, need to be drafted. The options available to the presiding judge need to be extended by employing the principal, supplementary and ancillary penalties such as community service and other civil penalties with the addition of a number of preventative measures prescribed by law.
It should be noted that our proposed draft bill was submitted previously to former President Mubarak, to the Supreme Council of the Armed Forces and to former President Morsi but each time was met with silence. This has led to an intolerable epidemic of sexual harassment in Egyptian society which has started to pose a risk not just to women but to every member of every Egyptian family with no laws deterring harassers in place or enforced and the streets unsafe for everyone.
Draft Law
Submitted by the Egyptian Centre for Women’s Rights
With an Explanatory Memorandum
Law criminalizing sexual harassment.
Law No. 2008 – amending the Penal Code promulgated by Law No. 58 of 1937
In the name of the people
The President of Egypt
The People’s Assembly decided on the provisions of the following law. We propose the following amendments:
1. Replace the phrase, ‘indecent assault and corrupting the morals’ with the phrase, ‘indecent assault, sexual harassment and corrupting the morals’ in the title of Part IV of Book 3 of the Penal Code.
2. The following text should be added to Article 278 of the Penal Code:
Article 278-bis: Anyone who has sexually harassed another person, whether male or female, against their will, shall be punished by both imprisonment for a period not exceeding 1 year and fined no more than 2000 Egyptian pounds, or either penalty. Harassment is defined as inappropriate touching, stalking, following or other forms of pursuit, sexual comments or obscene/offensive remarks made either explicitly or implicitly, over the telephone, online or by text message, picture message or messages containing images of a sexual nature.
• If the harassment is perpetrated by someone with power over the person harassed or by someone who is exploiting the harassed person’s terms of employment or by someone who is a family member, close or distant, or by someone with responsibility for the harassed person’s upbringing or care, the penalty shall be 2 years imprisonment and a fine of 2000 Egyptian pounds.
• If the harassment is perpetrated by more than one person or a visible weapon or the threat of a weapon is used during the harassment or the harassment has resulted in damage or injury, the penalty shall be imprisonment for 3 years and a fine of no more than 5000 Egyptian pounds.
• If the harassment is perpetrated against a minor or physically or mentally disabled person or against someone suffering from a psychological or mental illness, the penalty shall be imprisonment for no less than 1 year and no more than 3 years.
• It is for the judge to sanction any other measures he/she sees fit and to set out the regulations relating to implementation of this law.
Explanatory Memorandum on the draft provisions relating to the crime of sexual harassment
Sexual harassment against women has recently become a noticeable fact of life in Egypt. Sexual harassment is a form of violence against women. In our modern day life the number of women suffering sexual harassment is on the rise whether they are at work or studying or just walking down the street, whether they are young girls or married women. This an invasion of a woman’s privacy, an act of trespass against her will which is an attack on her personal freedom and an insulting and humiliating assault on her psychological and physical wellbeing. (draft by Professor Mohammed Khalil Quetta, member of the People’s Assembly)
The majority of women who suffer sexual harassment suffer psychological problems such as anxiety, sleeplessness, apathy, fear and nightmares (from a draft by the National Council for Women).
Women do not report sexual harassment since proving it is difficult and the law does not lay down penalties specific to this type of crime. This leads to an increase in sexual harassment incidents in the absence of a deterrent in law. This whole issue therefore requires updated, clear legislation pertaining to this crime which sets out clear penalties for this particular illegal act.
Round table discussions on ‘the absence of legal deterrence and its impact on Egyptian society’ recommended society and all its institutions take the initiative and push for legislation to be updated since the provisions of the Penal Code relating to criminal behaviour do not cover sexual harassment. However, existing penalties were felt inadequate for the crime of sexual harassment.
Egyptian society needs its lawmakers to update existing legal provisions to include the crime of sexual harassment whilst a review of the other provisions is carried out with definitions narrowed and penalties scaled according to the severity of the crime. The language used to define individual crimes needs to be more precise and specific provisions warranted by the circumstances surrounding the crime, whether extenuating or aggravating, need to be drafted. The options available to the presiding judge need to be extended by employing the principal, supplementary and ancillary penalties with the addition of a number of preventative measures prescribed by law.
As a rule, legal provisions must be applicable to everyone without exception and prescribe a punishment or penalty. Our findings confirm that sexual harassment may happen to women, children and even men in various ways. It is therefore vitally important to draft provisions that fully cover this crime to act as a deterrent both socially and on a personal level, provisions that cover all forms of sexual harassment, its perpetrators and victims, no matter who they are.
We believe the circumstances surrounding the crime of sexual harassment to be aggravating in the following instances:
1. The crime has been perpetrated by a member of the victim’s family or the person/s responsible for the victim’s upbringing or care.
2. The crime has been perpetrated by someone with power over the victim (e.g. an employer/boss or civil servant (public official) as defined in Article 119-bis).
3. Anyone who abuses the power conferred on him by virtue of his position at work or in the community.
4. If there is more than one perpetrator whether of their own volition or acting on the orders of others (police, prisons).
5. The perpetrator uses a weapon or threatens the use of a weapon.
6. Whoever exploits the terms of employment of the harassed or the customer care relations in shops or the duty of care obligation in an educational or training establishment.
7. If the crime is committed at night.
Instances of sexual harassment that require harsher penalties and have a bearing on the victim.
1. If the harassment is committed against a minor or a female.
2. If the crime is committed against a vulnerable person or someone who is incapacitated or has a physical or mental impairment. It is important to establish whether the harassment should be classed as a misdemeanour or felony.
The ancillary penalties laid down in the Penal Code (Article 25) can also be employed as well as the measures set out in Article 19-bis. Article 17 which refers to the discretionary powers of the presiding judge in determining the means and tools of sanction can also be employed. The proposed revised provisions can be incorporated into Article 278 on the penalties for acts of public indecency and Article 279 on the penalties for indecent acts in general, whether in public or private, so that all instances of sexual harassment are covered and punishment can be scaled accordingly.
It is important that criminal action against sexual harassment starts by filing a complaint. We suggest the following provisions:
Anyone who has sexually harassed another person, whether male or female, against their will, shall be punished by both imprisonment for no longer than 1 year and fined no more than 2000 Egyptian pounds, or either penalty. Harassment is defined as inappropriate touching, stalking, following or other forms of pursuit, sexual comments or obscene/offensive remarks made either explicitly or implicitly, over the telephone, online or by text message, picture message or messages containing images of a sexual nature.
• If the harassment is perpetrated by someone with power over the person harassed or by someone who is exploiting the harassed person’s terms of employment or by someone who is a family member, close or distant, or by someone with responsibility for the harassed person’s upbringing or care, the penalty shall be 2 years imprisonment and a fine not exceeding 2000 Egyptian pounds, or either penalty.
• If the harassment is perpetrated by more than one person, or at night, or a weapon or the threat of a weapon is used, or the harassment results in damage or injury, the penalty shall be 3 years imprisonment and a fine of no more than 5000 Egyptian pounds, or either penalty.
• If the harassment is perpetrated against a minor or physically or mentally disabled person or against someone suffering from a psychological or mental illness, the penalty shall be imprisonment for no less than 1 year and no more than 3 years.
• It is for the judge to sanction any other measures he/she sees fit and to set out the regulations relating to implementation of this law and any measures sanctioned by the presiding judge.
Harsher penalties should be prescribed in the following instances:
The explanatory memorandum recounts the instances relating to either the perpetrator or victim when punishment should be made more severe, the ancillary penalties doubled and preventative measures employed, including community service penalties in any public facility or public service organisation for maximum and minimum terms. For instances involving public officials, there are many preventative measures that can be used as guidance.
