About the Gender related integrity issues

 

The System of justice which operates in a transparent and honorable manner and serves the public interest is an essential element to the judicial integrity. Corruption and gender inequality have been recognised by the international anti-corruption bodies as mutually reinforcing phenomenon. Those who are most vulnerable are placed in a position where they are least protected and able to resist corrupt demands. Within the judiciary detailed study concerning prevalence of gender-related integrity issues has not been conducted. Information regarding cases of misconduct, complaints or disciplinary proceedings often remains either confidential or not easy to obtain from public sources. Magistrates confronted by disciplinary actions may decide to resign which hinders or terminates further release of information regarding the presumed misconduct. Nowadays, gender is often used as an excuse to treat people differently. As a product of its society, the justice system may reflect these social norms, behaviours, and the accompanying gender-related integrity issues such as unequal gender representation, stereotyping, sex discrimination, sextortion, sexual harassment bias and other forms of inappropriate sexual conduct. It is indisputable, however, that none of them is incompatible with the judicial integrity. Existing studies reveal persistent and widespread gender problems in society, in the legal profession and in the courts. Sextortion and sexual harassment are placed in the focus of our study as being predominantly noticed as malpractices within the judiciary.

 

3.1. Sextortion

Sextortion perceived as a form of corruption and gender-based violence. Sextortion is a term used by the International Association of Women Judges (IAWJ) to describe abuse of power for purposes of sexual exploitation. It occurs when a person with entrusted authority abuses this position to obtain a sexual favour in exchange for a service or benefit which is within their power to grant or withhold. Sextortion is a corrupt conduct in which the currency is sex and a sexual conduct involving coerced quid pro quo (this for that). The responsibility for sextortion always lies with the actor that abuses their entrusted authority and the transactional aspect of sextortion adds to the shame, fear, and invisibility by making the victim appear ‘complicit’. Sextortion is a violation of human rights and an abuse of power. Such misconducts are observed in developing and advanced countries. It is the abuse of authority or position at their core aiming to exploit someone who is vulnerable or dependant on their power. Perpetrators may vary from judges, prosecutors, government officials, teachers, doctors and across all professional fields. When addressing sextortion it is of paramount importance to reframe the issue of consent by considering the power imbalance that is inherent in sextortion through the abuse of entrusted authority. Consent itself is the distinguishing element separating sextortion from other forms of sexual harassment and abuse characterized by usage of physical or physiological violence. The person who demands or accepts a sexual favour must offer something in return. The act becomes transactional because it has the effect of rendering the victim complicit. The transactional aspect to some extent legitimizes the sexual services obtained in the eyes of the perpetrator, and perhaps also in the eyes of the victim. By making the provider of sexual services complicit, and by using a quid pro quo argument instead of physical coercion, the risk of being reported is minimized. To address these challenges, it may be considered providing accessible, affordable, safe, confidential, effective and gender-sensitive reporting mechanisms. The specific challenges women face in the EU when reporting sextortion as a corruption is taken into consideration in the EU Whistleblowing Protection Directive. Promoting reporting mechanisms is a step forward but incorporation of explicit prohibition in codes of EPC is justifiable.

3.2. Sexual harassment

The legal concept of sexual harassment has been developed i.a. in Directive 2004/113/EC ‘where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment;’. Sexual harassment as a form of violence against women and girls and as the most extreme yet persistent form of gender-based discrimination is condemned in the EU. CJEU stressed that the identification of conduct that may constitute sexual harassment corresponds to an objective of general interest. Sexual harassment can include a wide range of behavior and other practices of a sexual nature such as comments with sexual content, physical contact, sexual assault, inappropriate jokes or invitations. Perpetrators may vary widely from colleagues, subordinates, third parties. Regardless of the form it may take, such unwanted conduct always has detrimental consequences for the person experiencing it in terms of unsafe and hostile work environment, physical or psychological trauma caused. Subsequent victimization on the part of the victim may occur in the form of blaming from family, friends and peers. In the doctrine is proposed a new directive on sexual harassment and harassment related to sex at work. The accent is on preventive measures together with intervention and rehabilitation measures, including internal procedures, application of the principles of privacy, confidentiality and impartiality and the respect of the defense rights of alleged offenders. Prohibiting such an irregularity in codes of EPC is not an isolated notion regarding Joint declaration on harassment, signed on 08.03.2018 by Heads of EU agencies, incl. FRA, CEPOL, EUROJUST, commit to zero tolerance towards sexual harassment.

Discussed forms of gender-based pressure can affect both the manifestations of the judiciary outside and towards society and undermine its authority, as well as internally, hurting the very human structure of the system. From this aspect, the existing codes do not clarify and regulate due conduct. A meaningful form of prevention and inadmissibility of such misconducts can take the form of a hypothetical rule, stating the following: ‘EPC of magistrates excludes an existence and manifestation of corrupt and offensive motives based on gender that may affect the internal and external integrity of the judiciary’.

 

Our proposal for new ethical rule 

Ethics and Professional Conduct of magistrates excludes an existence and manifestation of corrupt and offensive motives based on gender that may affect the internal and external integrity of the judiciary

 

Bibliography on gender related integrity issues

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