Oh, what one Chuck(le) can do!

Oh, what one Chuck(le) can do!

Inside Parliament

With Balford Henry

Sunday, July 05, 2020

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MINISTER of Justice Delroy Chuck's argument for not delaying the reporting of allegations of sexual harassment under the new Bill before Parliament seems to have done more than the paid advertisements and media coverage have done to increase interest in the process since last year.

What some commentators like to refer to as the minister's “chuckle”, was an occurrence which has moved the issue from the back to the front pages of the press, and into public discussions, one year after the process started with the tabling of the Sexual Harassment Bill in the House of Representatives on Tuesday, July 9, 2019.

Chuck's comments were lost in a whirlwind of objections to his “chuckle” that accompanied his remark that 12 months should remain as the limitation for reporting the incidences of sexual harassment, which led to calls for his resignation last week.

Chuck is a member of the joint select committee (JSC), which is chaired by fellow Cabinet Minister Olivia “Babsy” Grange, who led the calls for retabling the original Sexual Harassment Bill which was chartered by former prime Minister, and then Minister of Labour and Social Security (MLSS) Portia Simpson Miller, in 2015. The primary difference between this new Bill and Simpson Miller's is that instead of relying on a panel of the current Industrial Disputes Tribunal (IDT) which deals with labour disputes to handle the cases, it recommends an independent tribunal also covering issues outside of worker/employer relationships, including landlord/tenant relationships.

Grange, as the gender minister, has an unenviable task of creating an arbitration environment in which a much wider population of women/men can be protected from sexual harassment beyond the workplace.

She opened the meeting on June 2 by cautioning that sexual harassment is a “very serious matter which militates against the desired levels of peace, harmony and happiness in our country”.

She said that the criticisms which followed Chuck's remarks on June 26 were instructive, and welcomed his decision to accept them and make a sincere apology.

“I not only believe that the member is committed to end sexual harassment, but have seen the demonstration of his commitment through his work in the development of the Bill...,” she commended Chuck.

Grange also admitted awareness that many people had the wrong impression of the intentions of the Bill.

The Bill's “Memorandum of Objects and Reasons” noted that, at present, sexual harassment is not specifically recognised in any existing legislation in Jamaica. It says, however, that there is consensus that legislation is necessary to address concerns about sexual harassment which is employment related, occurring in institutions, or arising from landlord and tenant relationships.

It states that the Bill outlines the types of conduct which constitutes sexual harassment, and prohibits certain related conduct.

The Bill also makes provisions for the making of complaints by persons who are aggrieved by sexual harassment, and that the complaints are to be heard by a newly created Sexual Harassment Tribunal.

She said she believes that the justice minister is committed to the same principles but admitted that there are many issues involved in setting up this type of arbitration machinery which issues are bound to raise challenges along the way.

One of those challenges came from the Jamaican Bar Association (JBA), which suggested Thursday that there is the possibility of the arbitration panel being tested constitutionally, as it will be operating much more similar to a civil court than an industrial disputes panel.

The JBA was concerned, first of all, about whether there was need for an independent tribunal when there is a question of how many cases would arise, annually; and whether, since the tribunal will need to have at least half of its members as women, there shouldn't be protection for men by having them fill the other half!

The Bill proposes a tribunal made up of 12 people, at least half of whom must be women. It should include four lawyers, four trained mediators and four persons selected between the MLSS and the MCGES (Ministry of Culture, Gender, Entertainment and Sport). They will be appointed for three years and each panel will comprise three persons.

Some people believe that legal and constitutional issues could set the legislation back another five years, but they must be resolved in another 4-5 months to facilitate the Bill being tabled before the end of fiscal year 2020-21, the timeline suggested by Grange.

The idea of calling for the resignation of the minister of justice for making his views on the limitation period public seems more like a “red herring” than a “red flag”, because the fact is that as a member of the committee, and not the chairman, he has the right to express his personal views.

Chuck's public explanation of his position on the 12-month limit seems absolutely acceptable, in the circumstances where differences of opinion will have to be tolerated until the members make a vote among themselves on what they will support in their report to Parliament.

In fact, he seemed to have won more sympathy on Thursday, explaining that his view is that by making the charges early the victim would be assisting in preventing the harassment of others from continuing, by bringing the predator to justice sooner than later.

Chuck also urged the committee to consider the fact that the Bill includes provisions for the alleged predator to be able to take civil action against the complainant, if he/she fails to get a guilty verdict. Persons who are judged as having made a false statement/complaint to the tribunal are also subject to a $1-million fine or three months custodial sentence.

It is interesting that Chuck last year chaired the JSC which reviewed the Sexual Offences Act, the Offences against the Person Act, The Domestic Violence Act and the Child Care and Protection Act.

That review's emphasis was placed on offences and punishment under these pieces of legislation with regard to: murder of pregnant women; assault and sexual offences against women, children and the elderly; and such other violent crimes against women, children, the disabled and the elderly as may be deemed necessary for the review.

Some people have suggested that the Act should offer much wider coverage against these activities and be more punitive at the same time. However, Grange was quick to note the need to educate citizens about the different crimes which these laws address.

She told committee members at Thursday's meeting:

“The debate in public space has revealed that there is some misunderstanding about what constitutes sexual harassment and what this Bill is intended to do. For instance, we have heard people say that sexual harassment is forced non-consensual sexual intercourse or rape. Sexual harassment is not rape, and rape is punished under the Sexual Offences Act. Sexual harassment is not the touching or holding of someone without his/her consent, that is assault and battery and is punishable under the Offences Against the Person Act,” she noted.

She also explained that groping and slapping someone's “bottom” without consent, or somebody running his/her genitials against someone else, is indecent assault.

An interesting difference between this Bill and the 2015 Bill is that because it falls under the portfolio of gender, which means that the current Government has recognised the need to shift from a male- or female-dominated issue to a gender-neutral issue, her ministry has an obligation to protect both the men and the women who become engaged in sexual harassment activities.

Sexual harassment is seen by the committee as making unwelcome sexual advances towards the person and includes physical contact, demand or request for sex, making of sexual suggestions, showing of pornography or display of images or objects of a similar nature, or any other contact of a sexual nature.

After quoting from calypsonian Singing Sandra's Die With My Dignity, Grange remarked:

“All the proposals [in the Bill] are up for discussion. This Bill is a draft Bill, and every view will be considered when we come to prepare the final report for Parliament,” she concluded.

Unfortunately, however, public support for the venture has not been displayed as expected. Some 16 entities, including Jamaicans for Justice (JFJ) who were invited to participate, have not yet sent in submissions, and the committee only has one submission in hand at this time – from the Jamaica Household Workers' Association – which would not be enough to summon a next meeting.

The same lack of submissions caused the committee be idle for several weeks last year and since the start of the year. Grange says she would not be able to set a date to sit again until at least July 13 by which time she hopes to get another portion of submissions.

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