Distinguishing the Criminal Act from the Civil Wrong
It seems like it’s almost impossible to read a newspaper or tune into the news without hearing a report of allegations of sexual harassment or sexual assault, with the terms often used interchangeably. Although sexual harassment can include some form of sexual assault, the two acts are treated differently by the law and have distinctly different consequences. Most importantly, sexual assault is a criminal offense in Texas, whereas sexual harassment is considered a civil wrong.
Criminal vs. Civil Offenses
Before looking at the specific elements of sexual assault and sexual harassment, it’s important to understand how they are treated differently under the laws of Texas. Here are the fundamental differences between criminal acts and civil wrongs:
- The parties involved—Criminal actions are always prosecuted by the state, on behalf of the people. Civil actions are between two private parties.
- The source of the law—Criminal wrongs are always defined by statute. Most civil wrongs are established by the common law, handed down in court opinions.
- The burden of proof—A criminal offense requires guilt beyond a reasonable doubt. The burden of proof in a civil matter is significantly lower.
- The potential penalties—A criminal conviction can result in incarceration and/or fines. A civil wrong will never result in incarceration, but will typically involve a monetary award.
Understanding Sexual Assault in Texas
In Texas, sexual assault can take a number of different forms, but generally has two requirements: that the defendant acted knowingly and intentionally; and that the act was committed without the consent of the victim. In Texas, to constitute sexual assault, the non-consensual contact must involve some type of penetration, either of the mouth or of the victim’s private parts.
Sexual Harassment in Texas
Sexual harassment takes two distinct forms—quid pro quo sexual harassment and the creation of a hostile environment based on sex. As a general rule, sexual harassment involves the victimization of a person by someone with perceived or actual authority over the victim, such as a work supervisor or boss.
With quid pro quo (Latin for “this for that”) sexual harassment, there is customarily either a promise of benefits or the threat of sanctions in exchange for sex or sexual favors. In a work environment, a subordinate may be offered a raise, promotion, bonus, better working conditions or access to benefits in exchange for sexual favors or may be denied that same for refusing to engage in sexual acts.
With the creation of a hostile environment based on sex, the victim is exposed to repeated incidents that focus on or emphasize sex. It may involve jokes, e-mails, pictures, stories or other references to sexual content and can also involve the condoning of unwanted touching, fondling or even sexual advances. A hostile environment is considered to exist if the environment created unreasonably affects or interferes with a person’s ability to perform her or his job.
At the law office of Bailey & Galyen, we provide a free initial consultation to every client. To set up an appointment with an experienced Texas criminal defense attorney, contact us by e-mail or call our offices at one of the convenient locations listed below. We will take your call 24 hours a day, seven days a week.