JN+ Recommendation of the Sexual Harassment Act of 2019.

Sexual harassment is globally recognized as a form of violence against women and more broadly, a form of gender-based violence. The WHO reports ica.that gender-based violence is not only a human rights violation but also a barrier to HIV prevention, treatment, and care. Sexual harassment directly and adversely impacts women living with HIV in Jamaica

Gender inequality and gender-based violence are two indirect pathways that have an even greater impact on HIV transmission than the direct pathways. In Jamaica, where patriarchy and unequal gender norms are big parts of our culture, men are more likely to perpetrate sexual violence, pay for sex, and are less likely to use condoms.

Sexual harassment is a critical issue which represents the tip of the iceberg of Jamaica’s rape culture. Rape culture refers to the situation that exists when a society or environment’s prevailing social attitudes have the effect of normalizing or trivializing sexual assault and abuse.

In Jamaica, this looks like the saying “a just so man stay” when men make lewd jokes about women, or saying that young girls love big man in cases of sexual grooming and sex with a person under the age of sixteen. The recommendations being put forward by JN+ are split into two categories. There are recommendations for the act itself and also recommendations for establishing an enabling environment for the act

Street harassment must be included in the act. It is paramount that the sexual harassment act pays attention to the startling reality of street harassment outside of the workplace, and particularly on the street where it is faced most. Street harassment refers to unwanted comments, gestures, and actions forced on a stranger in a public place without their consent and is directed at them because of their actual or perceived sex, gender, gender expression, or sexual orientation. It includes unwanted whistling, leering, sexist, homophobic or transphobic slurs, persistent requests for someone’s name, number, or destination after they’ve said no, sexual names, comments, and demands, following, flashing, public masturbation and groping.

Unfortunately, when women living with HIV face street harassment, their status becomes a part of the exchange. According to data from reports of discrimination made to JN+, women with HIV experienced 6 in 10 reported human rights violations. Disclosure of one’s status without consent represented 4 in 9 (45%) reported violations by PLHIV. Similarly, harassment/verbal abuse in the community context accounted for a similar portion of reported cases at approximately 48%.

In one case, the client has been suffering severe harassment and verbal abuse in her community since the disclosure of her status by a nurse to several community members. Due to the abuse, she was forced to stop selling in the market which has resulted in emotional discomfort and financial instability for her.

We understand that this will be difficult to outlaw because of how deeply ingrained in our society street harassment is, but while it won’t be easy; it is absolutely necessary. We suggest that the house consults legislation such as South Africa’s Protection from Harassment Act (2010) and the United Kingdom’s “offence of causing intentional harassment, alarm or distress” .

The definition of sexual advances should be expanded. The current definition is a good angle from which to approach sexual harassment and sexual advance. However, it’s expansion would allow for a clearer understanding of what is considered sexual harassment. We recommend that the following are added to the definition:

  • asking a person intrusive questions that are of a sexual nature that pertain to that person’s private life;
  • transmitting sexually offensive writing or material of any kind including by social media; 
  • making sexually offensive telephone calls to a person; 
  • or any other sexually suggestive conduct of an offensive nature in circumstances where a reasonable person would consider the conduct to be offensive. These recommendations are supported by the Employment Sexual Harassment (Prevention) Act, 2017 of Barbados. 

The law must outline and explain the different spaces and ways in which sexual harassment takes place. The law must outline and explain the different spaces and ways in which sexual harassment takes place. The current act goes in-depth with how sexual harassment will be addressed in the workplace but does not say much about other institutions. The act must be framed in a way that makes it predominantly clear that all institutions are protected under the act. Discretion should not be left to the minister to decide what institutions are protected from harassment.

Sexual harassment among peers should be specifically addressed. The act refers to coworkers and the duty workers have to not sexually harass another worker. We recommend that this be changed to include peers and colleagues, as sexual harassment among colleagues occurs in professional institutions outside of the workplace. It should also be noted that harassment is not only top down, but that the creation of a hostile environment, which makes people uncomfortable, is also a form of harassment.

The authorized officers referred to in Part IV and the full tribunal referred to in Part V must be thoroughly sensitized on sexual harassment. It is of utmost importance that the authorized officers and the full tribunal who will oversee the regulation of this act are properly sensitized on sexual harassment. The full tribunal and authorized officers must receive sexual harassment training, based on human rights principles. It is paramount that these persons have a general, similar understanding of sexual harassment including cultural nuances, examples of what constitutes sexual harassment, and the ways to approach the issues they will come across.

There should be no statute of limitations for reporting cases of sexual harassment.  Part IV of the act which speaks to Complaints and other Claims of sexual harassment is vague. It does not clearly specify if the twelve-month period given to submit a report falls on the complainant or on the employer. This should be clearly specified and should assert that no statute of limitations exists for reporting cases of sexual harassment. Due to the traumatic nature of various forms of harassment, complainants are not always ready to make a report right away. Similarly to the offense of rape, a statute of limitations could cause serious restrictions for persons working through trauma.

The prohibition of victimization of employees should be considered. Employers should be prohibited from carrying out any action which adversely affects opportunities and terms of services of any person who rejects that employer’s acts of sexual harassment; lodged a complaint under this Act; given testimony with respect to any investigation conducted or hearing held under this Act in connection with a complaint of sexual harassment; or participated in an investigation, procedure or hearing under this Act. These recommendations are supported by the Employment Sexual Harassment (Prevention) Act, 2017 of Barbados.

No limit is needed for section 4, part 4. Many Jamaicans aren’t operating in the complex corporate structure which requires 20 or more “workers”. The Act gives protection for domestic workers in one hand then takes away that protection with the next hand. No quota is needed. There should be a standardized policy that captures all entities. The law should clearly indicate that sexual harassment is prohibited in all spaces, and allow for redress.

“Immediate and appropriate actions” should not be left to the discretion of the employer. The purpose of the Bill is to set a non-negotiable standard. Section 5 does away with that by not framing what is immediate and appropriate. If Parliament leaves these open-ended, the court will view this as Parliament’s intention to take each employer and each case of harassment as it finds it; without a proper threshold of unacceptable conduct. Section 6(1) “…Where the person in charge of the institution becomes aware of the harassment…” This is too narrow. Actual, imputed, and presumed awareness is needed. A blanket “aware” gives people in power too much ignorance to hide. Instead, the law should say “where the reasonable man would be aware of..”. Report mechanisms must also be established so employers can be held accountable for not taking action.

Enabling Environment

Public sexual harassment sensitization should be undertaken by the Ministry of Labour and the Ministry of Education and Culture. The labor and education ministries should collaborate on a public sexual harassment campaign to sensitize the general public on sexual harassment. This is to ensure that the public is aware of what constitutes sexual harassment and the remedies available. Efforts should be taken to sensitize all Jamaicans through mass media.

Appropriate counseling services must be made available to persons who report cases of sexual harassment. It is important that action is taken to alleviate the emotional impact that sexual harassment has on complainants. Confidential sexual harassment counseling services can offer support to persons who are victims of sexual harassment. Counseling can be very effective in mitigating the impacts of sexual harassment. This counseling must include information on redress available and tools to cope.

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