First Criminal Conviction under Belgium’s Anti-Sexism Act
A man who made sexist remarks to a female police officer was sentenced to pay a €3,000 fine and became the first person to be convicted under Belgium’s 2014 Anti-Sexism Act. While the Anti-Sexism Act is vague in certain respects, it serves an important symbolic function. Acknowledging the gendered component in certain types of abuse and harassment is important as a matter of fair labelling.
In June 2016, a man who had committed a series of traffic offences in Brussels was stopped by two police officers. The man made sexist comments, saying that the female police officer should get a different job which was appropriate for women, such as bank clerk. He told her to keep her mouth shut “as he does not speak to women” and called her a “dirty whore”. The man was convicted on charges of defamation, threatening to attack the police officers, and sexism under the Act of 22 May 2014 to Combat Sexism in Public Spaces (“the Anti-Sexism Act”, Dutch version, French version). The man was convicted and sentenced to pay a €3,000 fine; failure to pay the fine will lead to a month imprisonment.
The conviction for sexism under the Anti-Sexism Act is a first in Belgium since the Act entered into force three years ago. The Act makes sexism a criminal offence, punishable with imprisonment of one month to one year and a fine of €50 to €1,000 (Article 3). Article 2 of the Act defines “sexism” as: every gesture or action in a public space, which is “clearly meant” to express contempt against a person because of his/her gender, or to suggest someone is inferior because of his/her gender, or to reduce the person to his/her “sexual dimension”, and which leads to a serious violation of the person’s dignity.
There are certain aspects of the Anti-Sexism Act which could be criticized. For example, the definition of what constitutes “sexism” is too vague and jeopardizes legal certainty. The conduct element of the actus reus is defined as “any gesture or act”. This is broad, and yet it is not clear to what extent this includes verbal expressions of opinions. Additionally, it is not clear whether the consequence element of the offence, namely the serious violation of a person’s dignity, is to be assessed subjectively on the basis of the victim’s feelings, or objectively by reference to the reasonable person. Moreover, the mens rea of the crime is insufficiently clear from the statutory wording “clearly meant to”. Belgian criminal law distinguishes between general intent and specific intent. If sexism is a crime of specific intent this would entail the defendant needs to act with the intention to express contempt, make a person feel inferior, or reduce a person to his/her “sexual dimension”. Alternatively, the fault element may be one of general intent, which means that it suffices that the defendant purposefully gestures or commits a certain act, and that such gesture or act happens to express contempt, consider a person inferior, or reduces a person to his/her “sexual dimension”. Parliament has clarified in the Explanatory Memorandum to the Bill that preceded the Anti-Sexism Act that the mens rea is meant to be read as one of specific intent, but it remains problematic that this is not clear from the wording of the Act itself.
Nonetheless, the Anti-Sexism Act has its merits. It may be true that some of the actions prohibited by the Act could already be prosecuted as other crimes such as defamation, or could be targeted under anti-discrimination legislation. However, the Act acknowledges that certain utterances and actions have a gendered dimension in a way that more generic crimes such as defamation do not. The Act’s focus on the gendered component of gestures and acts is desirable as a matter of fair labelling. Furthermore, the Act sends a signal to society that sexism is not tolerated, and can thus foster a change in mentality about sexist behaviour. In a similar way, the Belgian Act that criminalises smoking in certain enclosed public spaces (Dutch version, French version) was a precursor to a changing societal attitude towards smoking. Additionally, a common objection to criminalising misogyny and sexism is that it violates freedom of speech. However, the Belgian Constitutional Court held on 25 May 2016 that the Anti-Sexism Act does not violate freedom of speech (Dutch version, French version), as protected inter alia under Article 19 Belgian Constitution and Article 10 European Convention on Human Rights. Finally, it seems that with the recent conviction, the Act has also proven its use in practice.