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Explainer: Sexual Harassment and the Law

Three prominent progressives have accused Mayor Bob Filner of sexual harassment, but could he face criminal charges?

Three former supporters of Mayor Bob Filner allege he sexually harassed women, and the mayor himself acknowledged Thursday he’s failed to “fully respect” women who work with him.

But the only real details on the mayor’s alleged bad behavior emerged earlier this week when a KPBS reporter cited anonymous sources who claim the mayor has made lewd comments, as well as kissed and groped women.

Depending on what occurred, the latter could constitute more than just sexual harassment. It could be criminal sexual battery.

Let’s start by defining sexual harassment.

Here’s the legal definition:

Excerpt of California sexual harassment law

It also requires that there be a business or professional relationship between the victim and the perpetrator, or one of a similar nature.

Sexual harassment can be as minor as flirtation that makes a woman feel uncomfortable or as severe as forced fondling. It can be entirely verbal; or it could include inappropriate touching.

Still, a one-time offense may not be enough to even pursue a civil case, said Micaela Banach, a San Diego-based attorney who has represented both businesses and employees in sexual harassment cases.

“Generally, a stray remark – one single incident of inappropriate behavior – is probably not going to be harassment,” Banach said. “It would typically have to be something that’s more pervasive.”

Most sexual harassment allegations are dealt with in civil court, where an attorney simply must prove a preponderance of evidence that a coworker or supervisor committed the act.

If an attorney succeeds, the payouts for victims can be hefty.

Attorney Josh Gruenberg, who has represented many sexual harassment victims, cited a recent Vista case where a jury awarded $1 million to a client whose company repeatedly failed to address her concerns.

But sexual harassment sometimes includes criminal violations, too.

Let’s take a look at a portion of the state’s sexual battery law.

Excerpt of sexual battery law

You’ll notice it’s much more specific than the sexual harassment law and comes with criminal penalties that require a higher burden of proof.

If convicted of a misdemeanor, the offender could face up to a year in jail per victim. A felony conviction could mean as many as four years in prison and a $10,000 fine. In some cases, a conviction may also require registering as a sex offender.

Former Los Angeles County sex crimes prosecutor Al Amer said there’s a simple distinction that sets battery cases apart from simple harassment cases.

“If you have sexual touching, it’s battery,” said Amer, who now works as a defense attorney in Orange County and the South Bay of Los Angeles.

But a battery case requires something that we haven’t seen yet amid all the Filner accusations: a victim willing to report the alleged crime to the police.

If a report is filed, police will need to determine there’s enough proof, and perhaps witnesses, to ensure the misconduct occurred. If they found that, they’d forward the case to prosecutors for further consideration.

It’s not clear whether that will ever happen. While women have reportedly approached community leaders, including Assemblywoman Lorena Gonzalez and former Councilwoman Donna Frye, to detail their experiences, they have yet to come forward publicly or to officially report their allegations to authorities.

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