Statement on the comprehensive reform of sexual offence legislation (TAS 370/2020, issued on 30 September 2020)
The Ministry of Justice asked the Ombudsman for Equality to comment on a working group report proposing amendments to the provisions on sexual offences of the Criminal Code of Finland (Reports and Statements 2020: 9). In its statement, the Ombudsman for Equality commented in particular on the amendment of rape legislation to be based on consent and on the broadening of the criminalisation of sexual harassment to also include acts other than those involving physical contact.
The Ombudsman for Equality is in favour of reforming Chapter 20 of the Criminal Code of Finland and, in particular, changing the defining characteristics of rape to include consent. Changing the defining characteristics of rape is an important and long-awaited reform in line with Finland's human rights obligations and increasing gender equality.
On the other hand, the Ombudsman for Equality noted that the report should take clearer account of the situation regarding gender minorities and the sexual violence they face, as well as situations of multiple discrimination in which, for example, gender intersects with other personal characteristics such as disability, age or ethnicity.
The Ombudsman for Equality is in favour of extending the scope of application of sexual harassment legislation, but stresses the need to look at the legal protection of victims of sexual harassment and sexual or gender-based harassment in a comprehensive manner. The extension currently under consideration brings the description of sexual harassment closer to the forms of harassment prohibited under the Equality Act. As the same act can be both harassment prohibited under the Equality Act and an act criminalised by the Criminal Code of Finland, clarification is required regarding the potential inconsistencies and gaps in both the legal protection afforded to victims and the assigning of culpability to perpetrators.
Attention should be paid to a more diverse gender impact assessment and gender diversity issues during continued drafting of the legislation. The report's gender impact assessment remains quite narrow in scope, despite the issue being one of a major reform intended to improve gender equality and the fact that sexual violence is a highly gendered phenomenon.
The vulnerability of a victim and the risk of becoming a victim of sexual violence are influenced by various factors, which may also affect a victim's willingness and ability to bring the sexual offence to the attention of the authorities. In addition to gender, factors such as a victim’s disability, age, and immigrant background may also be relevant. This consideration is not presented in the gender impact assessment.
With regard to crimes against children, the significance of the proposed age limits and new provisions has not been assessed separately for girls and boys. It may, however, be assumed that gender-specific data exists on the sexual relations and maturity of minors.
Taking gender minorities into account
With regard to the gender impact assessment, the report refers to Section 4 of the Equality Act and the obligation of public authorities to promote equality between women and men. In addition, Section 6 c of the Equality Act provides that authorities must purposefully and systematically prevent discrimination based on gender identity or gender expression.
The current report raises an example of overt sexual harassment in a situation in which a person "unlawfully enters the dressing or bathing facilities of the opposite sex at a swimming pool" (p. 176). Organisations representing gender minorities have expressed their concern to the Ombudsman for Equality about the wording of this excerpt. The Ombudsman for Equality notes that the chosen example can be difficult to interpret and may further complicate the situation for people belonging to a gender minority in dressing and bathing areas designed for only two genders in swimming pools.
A person’s legal gender does not always correspond to their gender identity and/or gender expression. The physical and expressed gender characteristics of a person belonging to a gender minority may differ from the average. This can sometimes cause problems in dressing and bathing situations. Legal gender is not always the decisive factor in assessing the right to enter dressing and bathing areas. In practice, members of a gender minority do not always have access to a separate dressing room or other such area that would protect their modesty while dressing and/or bathing area when needed. The intention is certainly not to criminalise the use of dressing and bathing facilities by people belonging to a gender minority under the auspices of overt sexual harassment. The Ombudsman for Equality suggests that this perspective be taken into account in the continued drafting of the grounds for the provision. People belonging to a gender minority must have access to safe dressing and washing facilities.
In order to prevent discrimination in the provision of public services, consideration must also be given to the provision of such services for those belonging to a gender minority. This obligation applies, for example, to the organisation of municipal sports services. The Ombudsman for Equality has recommended the provision of gender-neutral spaces in addition to those designated for male and female users as one means of taking gender diversity into account and preventing discrimination. Unfortunately, measures to ensure privacy in dressing and washing facilities are not yet realised in all public sports services. Problems resulting from this shortcoming should not, however, lead to the actions of a gender minority being misinterpreted as sexual harassment.