Sexual harassment and the 'Convention of Belem Do Para'
On December 14, 2005, Jamaica deposited with the Organisation of American States instruments of ratification for the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women "Convention of Belem Do Para", effectively announcing to the world its agreement to be bound by and to actively uphold the obligations and responsibilities as set out. Thirty days later the convention entered into full force for Jamaica.
The convention defines violence against women as "any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or private sphere". Article 2 expressly recognises sexual harassment in the workplace, educational institutions, health facilities or any other place, as one form of violence against women.
While the convention does not define "sexual harassment", the Caricom model legislation on sexual harassment, though directed specifically to employment, education and accommodation, can inform our understanding of the term as acts involving unwelcome sexual advances, unwelcome request for sexual favours or unwelcome conduct of a sexual nature towards another person, where that person reasonably believes that rejection, refusal or objection would cause him or her to suffer disadvantage in connection with the pursuance of any of the above.
There is no legislation in Jamaica which deals specifically with acts constituting sexual harassment. Such victims have little legal recourse but to lay charges of assault and/or battery against the perpetrators, where the acts have resulted in injury or have involved blatant physical aggression. The convention, by generally recognising sexual harassment as a crime of violence, may thus immediately impact on the situation of sexually harassed women in Jamaica.
Under the convention, the Inter-American Commission on Human Rights (IACHR) has competence to consider petitions submitted by any person or group of persons, or any legally recognised non-governmental entity and to recommend suitable redress to victims where necessary. It should be clearly noted, however, that this provision only grants the IACHR authority to consider complaints alleging violations of Article 7 of the convention by the state party.
Article 7 concerns the duty of states to implement domestic policies, programmes and legislation to address all forms of violence against women. Under this article, "each state condemns all forms of violence against women and agrees to pursue by all appropriate means and without delay policies to prevent, punish and eradicate such violence". Several undertakings are then made by the state, including the following:
. To refrain from engaging in any act or practice of violence against women and to ensure that their authorities, officials, personnel, agents, and institutions act in conformity with this obligation.
. To apply due diligence to prevent, investigate and impose penalties for violence against women.
. To include in their domestic legislation penal, civil, administrative and any other type of provisions that may be needed to prevent, punish and eradicate violence against women and to adopt appropriate administrative measures where necessary.
. To adopt legal measures to require the perpetrator to refrain from harassing, intimidating or threatening the woman or using any method that harms or endangers her life or integrity, or damages her property.
. To establish fair and effective legal procedures for women who have been subjected to violence which include, among others, protective measures, a timely hearing and effective access to such procedures;
. To establish the necessary legal and administrative mechanisms to ensure that women subjected to violence have effective access to restitution, reparations or other just and effective remedies.
The absence of domestic legislation to punish and prevent incidents of sexual harassment and the failure of the state to institute effective legal procedures and effective access to remedies for victimised Jamaican women presents a prima facie breach of Article 7 of the convention.
Immediately striking is that the state can be held directly responsible for acts constituting sexual harassment where the perpetrators are government agents. Petitions alleging sexual harassment by private individuals or other non-state agents may also give rise to state responsibility, not because of the act itself, but because of the failure of the state to provide legal procedures and access to remedies required under the convention.
Before considering the merits of a petition, the IACHR must first decide whether or not the petition is admissible. Perhaps the most important procedural requirement is that the petitioner must have exhausted all domestic remedies. This requirement poses little difficulty to the admissibility of petitions against the Jamaican state, however, since it is not applicable where "the domestic legislation of the state does not afford due process of law for protection of the allegedly violated right, or, the party alleging violation has been denied access to remedies under domestic law...."
While the present convention may afford one possibility to bridge the gap existing in our legal system with regard to sexual harassment, it does not bode well for the Jamaican state to have the convention or its complaint mechanism remain as the principal and primary arbiter in this respect. Aside from the obvious reason that a state should be the first to recognise and legally protect its citizens from all forms of abuse, other compelling reasons for this include the fact that:
. Violations of Article 7 are made the only remediable breach under the convention, clearly indicating that the convention strongly encourages the implementation of domestic legislation which will deal comprehensively with the various forms of violence against women.
. The requirement for the exhaustion of local remedies is a procedural requirement designed to allow the local machinery to run its course, thus permitting the majority of matters to be settled at the domestic level. Repeated petitions of the same nature, having almost mechanical admissibility, will create a negative pattern against the state, imply tolerance by the state of violence against women, bring unwanted international scrutiny and further affect an already tarnished human rights image.
. Unless legislation is implemented to allow private organisations and individuals to face the possibility of direct sanctions at the local level, the state alone will have to bear the financial responsibility to compensate or implement whatever remedies are recommended to the victims by the IACHR. Furthermore, extending the threat of sanctions to non-state entities may also act as an effective deterrent to private individuals and organisations.
. The present convention contemplates only acts against women. Local legislation would have the possibility to be non-gender specific.
No doubt the state apparatus is fully aware of the ramifications of the convention. Nonetheless, it must be emphasised that urgent attention should be given to any lacunae existing between the convention and the laws of Jamaica. Furthermore, the state, by immediately implementing and enforcing policies and legislation dealing with sexual harassment, can easily avoid detrimental consequences while, at the same time, meaningfully reinforce its stated intention under the convention, to seek to eradicate all forms of violence from the lives of Jamaican women.
The convention can be accessed at http://www.cidh.org/women/convention.htm and the Statute and Rules of Procedure of the IACHR at http://www.cidh.oas.org/basic.htm.
Marcel Bent is a Jamaican attorney, specialising in
the International Protection of Human Rights.