CHAPTER 19

• Jurisdiction: United States

CHAPTER 19

Sexual Harassment Law in Israel and the #MeToo Challenge

Daphne Barak-Erez¹

Introduction

In the two decades since the enactment of the Israeli Prevention of Sexual Harassment Law in 1998,² the president of the state was indicted for rape and sent to prison for several years, the minister of justice was indicted for indecent assault and pushed to resign, and several high-level military commanders were indicted and forced to quit successful careers. This analysis focuses on that law, its implementation, and the controversies surrounding it,³ trying to assess its impact as well as the limitations of the change it brought about. To paint a fuller picture of the legal landscape, I will also review former approaches to resisting and combating sexual harassment and the interpretation of previous legislation in light of the #MeToo movement.

Pre-1998 Law

Prior to 1998, sexual harassment was only partially regulated by employment law, criminal law (which largely proscribed physical aspects of unwanted sexual behavior),⁴ and the law regulating disciplinary provisions for state employees.⁵

In the area of employment legislation, the only relevant provision was section 7 of the Equal Opportunities in Employment Law.⁶ This provision prohibited "sexual harassment" (using this terminology) but was quite narrow. It originally applied solely to employer-employee relations. In 1995, the legislature amended the provision to include sexual harassment of prospective employees.⁷ Still, the protection provided remained rather flimsy because the text did not contain any details regarding the nature of the prohibited behavior.

As for criminal law, the provisions in place before 1998 only covered relatively severe cases of unwanted sexual behavior. Section 348 of the Penal Law, which prohibits "indecent assaults," applies to unwanted sexual advances of a physical nature, such as a coerced kiss. In addition, section 346(b) of the Penal Law, which prohibits "forbidden intercourse by consent," applies to sexual conduct in the context of employment-based power imbalances, such as when a boss exploits his or her "authority in employment or service" to have sexual intercourse with an employee. It applies regardless of whether the exchange was technically consensual. Though these provisions cover many forms of sexual harassment, they hardly reach the full gamut because they are limited to physical acts.

The law applicable to state service—which establishes the state's power to initiate disciplinary proceedings against state employees—served as a third layer of protection. More specifically, one disciplinary offense was defined as behavior in which an employee "conduct[ed] himself in a manner unbecoming of his office as a State employee."⁸ Unfortunately, for many years the exact meaning of "unbecoming" in the context of sexual behavior remained undefined.

Ironically, the state disciplinary proceedings' potential as a tool to curb sexual harassment only really began to manifest in 1998—just before the enactment of the new law. Specifically, that year the Supreme Court, in its appellate capacity, convicted a state college professor of engaging in unwanted advances toward a female student, overturning part of the state disciplinary tribunal's decision.⁹ Since, this judgment, together with the 1998 law that reinforced its main holdings, has served as precedent for many other decisions in which both the disciplinary tribunals and the Supreme Court have found state employees guilty of sexual harassment.¹⁰

The pre-1998 laws were insufficient because they were largely focused on criminal law and administrative disciplinary law, under which the state has sole enforcement power. In contrast, in civil litigation, the power to sue rests in the hands of the injured individual. In addition, the pre-1998 criminal and disciplinary procedures were focused on punishing the wrongdoer, not compensating the victim.¹¹

The New Sexual Harassment Law—20 Years of Revolution

The Prevention of Sexual Harassment Law of 1998 aims "to prohibit sexual harassment in order to protect human dignity, liberty, and privacy, and to promote equality between the sexes."¹² In a move of symbolic significance, the bill was initiated by all eight women who served, at the time, as members of the Knesset, the Israeli parliament (MKs).¹³ In contrast to the way in which sexual harassment law has evolved in the United States as an application of anti-discrimination law, the Israeli law was heavily inspired by the European concept of human dignity.¹⁴ Despite the influence of other systems, the law did not confine itself to existing models of anti-sexual harassment legislation. In fact, at the time of its enactment, it was probably the most comprehensive and far-reaching law of its kind in the world.¹⁵

In contrast to previous provisions, the 1998 law provides a broad and detailed definition of sexual harassment. It also prohibits many specific acts, such as repeatedly making sexual references or propositions to a person who shows that he or she is not interested in them, making such comments to a subordinate, even if the subordinate does not show that he or she is not interested,¹⁶ and making disparaging remarks to a person because of his or her sex or sexual orientation. In addition, in its definition of sexual harassment the law also includes the traditional criminal offenses of sexual assault, and the use of blackmail to demand the performance of a sexual act, as defined by the Penal Law.¹⁷

The law provides three enforcement channels—in criminal, civil, or labor courts—through which individuals can proceed. It defines sexual harassment as both a criminal offense¹⁸ and a cause for a civil suit.¹⁹ Notably, not only does the law permit civil litigation, but it also eases plaintiffs' paths to success because it does not require a showing of concrete damages. In addition, violation of the law serves as a basis for disciplinary proceedings under the law applicable to state employees.²⁰

The law also imposes specific obligations on employers to prevent sexual harassment, and failure to comply renders employers liable to suit.²¹ Among other things, the law requires employers to take reasonable care to prevent sexual harassment in the workplace; to appoint an employee responsible for receiving and investigating complaints, as well as preparing reports concerning them; and, in any workplace with more than twenty-five employees, to publicize "sample rules" that explain the prohibition on sexual harassment and procedures for filing complaints.

Importantly, this is just one aspect of the law. It actually applies far beyond the workplace context, and in this regard is broader than U.S. law. In fact, the Israeli law does not mention employer-employee relationships specifically, and instead uses broad language to define and proscribe sexual harassment generally.²² Later amendments have broadened its application still further, as legislators try to update the law to changing background circumstances. For example, one of these recent amendments included in the definition of sexual harassment the publication of pictures, movies, or recordings that focus on an individual's sexuality, where this publication may humiliate or degrade the portrayed person and was made without his or her consent.²³ This provision was drafted to combat a new type of harassment made possible by technologies that did not exist when the law was originally enacted.

Implementation and Enforcement

Israel's sexual harassment law is certainly not limited to words on paper. It has frequently been applied to real cases. Simultaneously, the state continues to prosecute cases of sexual violence under more traditional sexual offenses, such as rape and sodomy. The number of sexual harassment cases that have found their way to the courts—through criminal indictments, employment law litigation, and disciplinary proceedings—demonstrate a generally robust, working legal framework.²⁴ In addition, the state has promulgated regulations regarding the implementation of employers' duties under the Prevention of Sexual Harassment Law.²⁵

Of course, this does not necessarily mean that victims feel empowered enough to report harassment, or that complaints are always handled effectively.²⁶ From a formal perspective, however, the law has established procedures that largely enable them to do so. Specifically, victims are protected from shaming and retaliation in the public sphere through prohibitions on publishing their names.²⁷ The fact that women can file lawsuits while remaining, in most cases, anonymous outside of the legal proceedings is an important safeguard that points to the law's pragmatism and efficacy.

Another important aspect of Israel's sexual harassment legal framework has been the willingness of state prosecutors to indict high-level officials.

One of the first landmark cases in this context was the trial of Yitzhak Mordechai, who, at the time, was the minister of transportation. He had previously served as a Major General and was considered a renowned war hero. One of his female subordinates filed a complaint against him for sexual harassment and indecent assault. Eventually, two other women came forward and filed additional complaints. He was charged with three counts of sexual assault and found guilty on two of them. Ultimately, he received a relatively lenient punishment, which did not include prison time (but rather only a suspended sentence). His appeal against his conviction, as well as the prosecution's appeal requesting a harsher punishment, were both dismissed, as was his request to appeal to the Supreme Court.²⁸ At any rate, he resigned, and his successful public career was effectively terminated.

Another public affair that proved decisive in this context was the trial of former Minister of Justice Haim Ramon.²⁹ Ramon was indicted for "indecent assault" when he kissed on the mouth a young female officer who...