American author and advocate for persons with disabilities Helen Keller once stated that “life is a daring adventure or nothing at law.”

All and sundry agree that the adventures of life include meeting new people and the creation of personal intimate relationships. These relationships are natural to all beings. Nature so dictates. In the animal kingdom each species has its courting process.

Human beings albeit considered as being more intelligent than animals, regularly fall foul of what is acceptable during their courting. This problem one may opine, arises since humans tend to forget, for one reason or another, that courting, like all other aspects of life must conform to the norms of decency, respect, and morality.

So great is this flaw found in humans that various laws have been enacted, both locally and at an international level, to ensure that humans know what the legal boundaries are of what is permissible and what is not.

On January 6, 2023, the Court of Criminal Appeal, presided by Justice Grima delivered a judgement on this issue [Appeal 215/2022]. The question that the court was tasked with examining was whether the crime of sexual harassment as promulgated by article 251(A)(1)(e) of the Criminal Code requires a course of conduct by the perpetrator to the detriment of the victim, or whether one instance was sufficient.

The case related to an incident that took place on October 14, 2021 in a bar in Floriana. The victim was there with her partner, yet the perpetrator still sought to “court” her.

Realising that his attempts at chatting up the woman were proving futile, the perpetrator, upon seeing the victim go to the restrooms, followed her and prevented her from leaving, while at the same time pulling her hand to draw her towards him and attempting to kiss her hand. The victim objected strongly and filed a police report.

The case was first decided by the Court of Magistrates. The court confirmed the truthfulness of the victim’s version of events and declared the accused's actions as being offensive, humiliating, degrading, and threatening, thus concluding that this was not courting. But it declared the accused not guilty on a point of law.

It found that since sexual harassment was a sub-branch of the generic crime of harassment, the legal principles applicable to the crime of harassment had to be applied also in instances of sexual harassment. Therefore, the Magistrates Court, (one might add much to its displeasure), concluded that since this incident occurred only once and therefore lacked a course of conduct, (this being a sine qua non condition for a finding of guilty for the crime of harassment), the accused could not be declared guilty and punished.

The Attorney General appealed.

Justice Grima, in her unique style of clarity, sharpness and legal knowledge, did not mince words. Whilst confirming that a course of conduct was essential for there to be a finding of guilty of the crime of harassment in relation to a number of subbranches of this crime, all of which had been promulgated into law by means of Act XX of 2005, she ruled that this did not apply to the case at issue primarily since the designation of sexual harassment as a crime of its own was promulgated by means of Act XIII of 2018 when Malta adopted its international obligations in terms of the Council of Europe’s Istanbul Convention on violence against women and domestic violence.

Justice Grima delved into the text of article 251A(1)(e) to explain why the Attorney General was correct in the appeal. The text of the law, clearer in the English text, states that the perpetrator of such a crime shall be guilty not only when (he) pursues a course of conduct but also when (he) subjects another person to any act and or conduct with sexual connotations. The wording of the law refers to an “act” or “conduct.” The law does not imply the plurality of wrongdoing only, it also allows for a singular wrongful act of commission.

Therefore, the Court of Criminal Appeal, whilst confirming the appellatives used by the Court of Magistrates in describing what the perpetrator did, upheld the Attorney General’s appeal, revoking the not guilty decision. It declared the appealed party guilty and sentenced him to six months imprisonment, which term was suspended for a period of two years. The court also imposed upon the accused in favour of the victim a Restraining Order.

Dr Arthur Azzopardi is Managing Partner, Azzopardi, Borg & Associates, Advocates.