What to Do When Sexual Harassment Becomes Criminal

By Lawrence P. Schaefer |

Workplace sexual harassment claims are usually prosecuted as “civil” claims, generally under applicable federal (Title VII) or state (MHRA) laws in Minnesota. The broad range of conduct that can be considered sexual harassment, however, includes conduct that can give rise to a criminal complaint, and every experienced advocate in this field needs to understand that these claims can and should be pursued along with any civil claim. Doing so can often significantly strengthen your client’s ability to establish civil liability and secure maximum relief.

What Workplace Sexual Harassment Conduct Can Be Considered Criminal

Sexual assault and/or battery is a crime and Minnesota law defines five degrees of such criminal acts, with consequences ranging from misdemeanor to felony penalties, with escalating prison time. Assault, as distinguished from battery, is conduct that threatens physical harm, while battery is the act of causing physical harm itself. Minnesota also criminalizes “terroristic threats,” which involve threatening to commit a crime of violence with then intent to terrorize another. Rape is obviously also criminal, and under Minnesota law is defined as “criminal sexual conduct,” with five degrees defined (similar to assault and battery). This can include not only “first degree” conduct which involves forced vaginal, anal or oral penetration (which carries with it a criminal sentence of 12-30 years), but can include improper sexual touching.

Should an Attorney Pursue Both Criminal and Civil Claims When Appropriate?

In circumstances where the conduct at issue could implicate the above criminal laws, you should assist your client in making the appropriate report to law enforcement, which can then result in a criminal investigation and potential indictment and prosecution. This, however, is up to local law enforcement and the prosecuting attorneys (usually in the district attorney’s office), and your ability to influence these decisions is minimal, apart from encouraging your client to “press charges.” When, however, an investigation, indictment, and prosecution occurs, this can have a number of positive effects on pursuing a civil claim (which can and should occur down a simultaneous parallel path).

1. It bolsters your client’s credibility, and emphasizes the gravity of the conduct at issue and the harm caused by this conduct.
2. The criminal matter will almost certainly proceed more quickly than any civil complaint, and the findings (and testimony) in that matter can be very helpful to establishing civil liability. A guilty plea or conviction, for instance, should be admissible in a civil matter and will often, standing alone, establish civil liability. Moreover, testimony and reports/investigative interviews, can be very helpful when covering the same or similar ground in the civil case.
3. While the criminal matter cannot be a part of any civil settlement (and ethical restriction prohibit any attempt by counsel to “leverage” this process for any benefit in the civil case), it can sometimes be very beneficial to providing incentive to resolve the civil matter case promptly and on favorable terms.

Schaefer Halleen, sexual harassment lawyer Minneapolis  can assist any individual subject to workplace sexual harassment that could involve criminal conduct in navigating through the process of proceeding down simultaneous civil and criminal paths. We are always committed, first and foremost, to ensuring that our clients are empowered to raise claims through every appropriate avenue, and seek full justice in both civil and criminal courts.