How should minors claim their rights when they are sexually harassed?
The protection of minors is a topic of great concern to the whole society.In order to effectively safeguard the legitimate rights and interests of minors, legal provisions are becoming more and more perfect, and the civil Code is protecting the future of the motherland with the concept of “most favorable to minors”, many of which involve the protection of the rights and interests of minors.So, the minor who suffers sexual harassment, can request compensation?How do you claim your rights?Case: When Wang was 12 years old, his headteacher Surnamed Zhang sexually harassed him, resulting in physical injuries that required hospitalization.Wang’s parents did not investigate Zhang’s behavior because they thought it was bad for Wang, but Wang wanted to ask for compensation.Article 191 Of the Civil Code, the limitation period for the right to claim compensation for sexual assault suffered by a minor shall be counted from the date on which the victim reaches the age of 18.Article 1010 If a person sexually harass another person against his will by means of words, texts, images or physical acts, the victim shall have the right to request the perpetrator to bear civil liability according to law.Organs, enterprises, schools and other units shall take reasonable measures to prevent and stop sexual harassment by taking advantage of their powers and subordinate relationships.Article 1198 Operators and managers of business premises or public places such as hotels, shopping malls, banks, railway stations, airports, sports venues and entertainment venues, or organizers of mass activities who fail to fulfill their safety obligations and cause damage to others, shall be liable for tort.If the act of a third party causes damage to another person, the third party shall be liable for tort;Operators, managers or organizers who fail to fulfill their safety obligations shall assume corresponding supplementary responsibilities.After the operator, manager or organizer has assumed supplementary liability, they may have recourse against a third party.Article 1201 Where a person without or with limited capacity for civil conduct suffers personal injury from a third person other than a kindergarten, school or other institution of education while studying or living in a kindergarten, school or other institution of education, the third person shall be liable for tort;Kindergartens, schools or other institutions of education that fail to perform their administrative duties shall assume corresponding supplementary responsibilities.After the kindergarten, school or other institution of education has assumed supplementary liability, it may have recourse against a third party.Prosecutor analysis: for sexual harassment victims of the right to claim, in addition to the civil code has provisions, criminal Procedure law 101 paragraph 1 also stipulates that the victim due to the defendant’s criminal behavior and material losses, in the process of criminal proceedings, the right to file an incidental civil action.If the victim is dead or incapacitated, his legal representative or near relative shall have the right to bring an incidental civil suit.Meanwhile, Article 175 of the Judicial Interpretation of the Criminal Procedure Law, which will take effect in March 2021, stipulates that victims who have suffered material losses due to criminal infringement of their personal rights or property damage by criminals have the right to file an incidental civil suit in the course of criminal proceedings.If the victim is dead or incapacitated, his legal representative and near relatives shall have the right to bring an incidental civil action.A people’s court shall generally not accept an incidental civil suit or a separate civil suit filed to claim compensation for mental loss caused by a criminal infringement.According to the law, the victims of minor sexual harassment can request civil compensation for two objects, one is the perpetrator, the other is the victim’s kindergarten, school or other educational institutions.There is no limitation condition to ask compensation to actor, there is certain limitation condition to ask compensation to relevant educational institution: above all, the victim is the person without civil capacity or the person with limited capacity of action;Secondly, the victim is in the educational institutions to study, life suffered personal injury;Finally, there is evidence to prove that educational institutions fail to fulfill their educational and management responsibilities. If educational institutions fulfill their corresponding responsibilities, they are not liable for infringement.In addition, operators and managers who suffer from sexual harassment and other similar violations by a third party in business sites and public places shall assume supplementary responsibilities if they fail to fulfill their security obligations. In this case, no distinction will be made between adult and adult victims.The victim’s claims may include requests for the cessation of harassment and other violations, elimination of the impact, rehabilitation of reputation, and compensation for material losses.If the victim suffers personal injury, the compensator shall pay compensation for all expenses incurred for medical treatment, including medical expenses, lost work expenses, nursing expenses, transportation expenses, accommodation expenses, hospitalization food subsidies, necessary nutrition expenses, etc.As for whether a victim can claim compensation for mental damage, according to the law, if the infringement constitutes a criminal offence, the court will not accept the victim’s claim for mental damage compensation;If the violation does not constitute a criminal offense, it should be analyzed on a case-by-case basis.In general, if it is only sexual harassment without other serious consequences, the court will not support the victim’s claim for mental damage compensation.However, if sexual harassment has caused other special serious consequences, such as facial injury, disability and death of the victim, the court shall decide whether to judge the perpetrator to pay compensation for mental damage and the amount of compensation according to the specific situation.According to the above legal provisions, in this case, Xiao Wang can claim damages from the perpetrator Zhang. If the school fails to fulfill its management responsibilities, it can also claim that the school should assume supplementary liabilities, and the scope of compensation is related expenses and economic losses during the medical treatment.Xiao Wang’s request for compensation for mental damage is generally not supported because it has not caused special serious consequences.Prosecutors suggest that when a victim of sexual assault is a minor, his or her guardian may act as legal representative to claim damages.But in reality, some guardians fail to claim corresponding rights on behalf of minors for various reasons.In this regard, the minor can claim damages by himself.However, it should be noted that the time of the claim for the rights of the minor is the date when the minor reaches the age of 18, and the limitation of action is three years.The guardians of minors shall strengthen the study of relevant legal knowledge, and the schools and communities attended by minors shall increase the publicity of relevant legal knowledge, so as to jointly shoulder the responsibility of protecting the healthy growth of minors.At the same time, minors should also actively learn law, usage, in the case of illegal infringement, know how to use legal weapons to protect their legitimate rights and interests.(By The People’s Procuratorate of Fangshan District, Beijing) (By Hou Shifang, Procuratorial Daily)