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Ask a Lawyer: What Recourse Is There for Victims of Sexual Harassment?

It could be an unwelcome touch, an inappropriate verbal or non-verbal exchange, a request for sexual favors, or any interaction that makes you feel uncomfortable and leaves your hair standing on end. your neck.

If you’ve felt this at your workplace or in any professional or social setting, chances are you’ve been a victim of sexual harassment.

According to the United Nations Entity for Gender Equality and the Empowerment of Women, sexual harassment is: “any unwelcome sexual advance, request for sexual favor, verbal or physical conduct or gesture or of a sexual nature, or any other conduct of a sexual nature that could reasonably be expected to be, or be perceived to be, an offense or humiliation to others, where such conduct interferes with the job, becomes a condition of employment or creates a intimidating, hostile or offensive work environment Although it usually involves a pattern of behavior, it can take the form of a single incident Sexual harassment can occur between people of the opposite sex or the same sex Men and women women can be either the victims or the aggressors.”

In this first part of Ask a lawyerwe get advice from two of the legal minds in this country—Jonathan Bhagan and Saelese Haynes.

It starts with the following question:

What legal steps can I take if I have been sexually harassed at work/school? For the purposes of this conversation, let’s say I reported it to my direct supervisor or a member of the administrative staff and was discouraged from escalating it and was basically told it wasn’t worth worth being prosecuted.

Although there is currently no specific legislation covering sexual harassment in Trinidad and Tobago, people who have been sexually harassed in the workplace or at school still have legal remedies to seek justice.

Currently, in Trinidad and Tobago, aspects of sexual harassment are dealt with in general civil and criminal legislation and, depending on the circumstances, may also be covered by laws prohibiting discrimination based on sex in Trinidad and Tobago. and Tobago (Equal Opportunity Act, Chapter 22:03).

According to the Equal Opportunities Commission Sexual Harassment Guidelines (May 2018), “sexual harassment” can include any of the following:

“(i) Abusive use of sexual behavior and request for sexual favors – when it is a condition of employment or promotion;

(ii) Physical Sexual Harassment – sexual violence or unwelcome physical contact;

(iii) Verbal sexual harassment – offensive and sexually suggestive jokes and comments;

(iv) Non-verbal sexual harassment – suggestive gestures of a sexual nature and suggestive body language;

(v) Written or graphic sexual harassment – posting of sexually explicit photographs and pornographic material; and or

(vi) Psychological sexual harassment – repeated unwanted proposals and taunts of a sexual nature.

In a recent (2019) Court of Appeal decision on the subject, the court accepted and upheld this definition as applicable to Trinidad and Tobago.

For people who have suffered acts of sexual harassment in their place of work or study, it is advisable to document all the circumstances and related facts contemporaneous (as close as possible in time) to the acts suffered. Perspectives should be recorded from a subjective point of view (how the actions made you feel) as well as (where possible) from an objective point of view.

While it is important to make detailed reports to seniors or supervisors, it is at least as important, if not more so, that the person experiencing the unwelcome or unwelcome behavior keep their own records, including copies of submitted reports. at the establishment. Additionally, when actively encouraged to bury the topic, they should also record who they spoke to on the topic and when, as well as what was said and/or done.

Many otherwise actionable legal claims are compromised when there is not enough evidence to prove what happened. Also, while keeping one form of record is good, keeping records in multiple forms/formats is even better. A phone or device can malfunction and the person loses all their evidence, but if emailed to them, there would still be evidence available.

In some cases, depending on the nature of the incident or incidents, police reports may be warranted and are encouraged. The difference between a fairly satisfactory outcome arising from the incident where the offender is held accountable versus a totally unsatisfactory outcome where only the victim suffers may depend on what can be proven by verifiable or contemporary independent sources.

Local courts have also noted that victims of sexual harassment face an erosion of their dignity and well-being. In the opinion of the court:

“It is humiliating for the dignity of the person and corrosive for the self-esteem of an individual…”

Although there is no specific legislation dealing with sexual harassment as noted above, it is possible to take legal action against a person who commits sexual harassment under other aspects of the law.

Legal remedies available:

Equal Opportunity Tribunal/Commission

Sexual harassment may constitute discrimination on grounds of sex (gender as opposed to sexual orientation) within the meaning of the Equal Opportunities Act. This means that people who have been sexually harassed can file a complaint with the Equal Opportunities Tribunal for discrimination based on sex.

labor court

Cases in the industrial tribunal have also recognized actionable issues of sexual harassment and have found that employers have a duty to protect their employees from harm in the workplace, which harm may include sexual harassment. .

An employee who is the victim of sexual harassment can therefore intervene with his Union or ask his Lawyer to seize the Labor Court to obtain compensation, in particular in the event of abusive or abusive dismissal following the incident.

Indecent Assault, Rape and Sexual Offenses Act

Where sexual harassment has occurred and includes unwanted touching under the Sexual Offenses Act, Chapter: 11:28, it may fall under the crime of indecent assault described in Section 15 of the Act on sexual offenses as follows:

“15. (1) Every person who indecently assaults another is guilty of an offense and liable on conviction to imprisonment for five years for a first offense and to imprisonment for ten years for an offense subsequent.

(2) A person under the age of sixteen may not in law give any consent which would prevent an act from being assault for the purposes of this section.

(3) In this section, “indecent assault” means an assault accompanied by words or circumstances indicating indecent intent”

Even where consent to sexual activity is obtained (for example, if obtained under duress), it may still fall within the definition of rape and/or indecent assault. It is imperative that survivors of such acts understand that if they feel pressured into consenting to touching or sexual intercourse, they can always report it as a crime.

Offenses Against the Person Act

When sexual harassment takes the form of behaviors similar to harassment, a person can take action where there has been behavior consisting of several acts such as those listed below:

“(a) ‘harassing’ a person includes alarming or causing distress to the person by engaging in conduct such as:

(i) follow, visually record, arrest or approach the person;

(ii) monitor, loiter near, or obstruct or prevent access to or from the person’s place of residence, place of work, or other place frequented;

(iii) enter property or interfere with property in the person’s possession;

(iv) make contact with the person, whether by gesture, directly, verbally, by telephone, computer, mail or in any other way;

(v) give offensive material to the person, or leave it where it will be found, given or brought to the person’s attention;

(vi) acting in the manner described in subparagraphs (i) to

(v) to a person having a close family or personal relationship with the person; Where

(vii) act in any other way which could reasonably be expected to disturb or cause distress to the person…”

In conclusion, general recommendations are that people who believe they have been sexually harassed seek legal and other professional advice. People who are unemployed or have minimal means can turn to the Legal Aid & Advisory Authority for cheap legal advice. It is recommended that employees/workers join a progressive trade union which will represent their interests before the labor court and provide services on legal matters.

Editor’s note: This article does not constitute legal advice in the context of an attorney-client relationship and the success of any case will depend on the facts and evidence available.

Members of the public are also encouraged to write to their representatives, including MPs, to facilitate a global and comprehensive review of sexual harassment legislation. Currently, model legislation has been drafted by CARICOM to provide legal protection against sexual harassment available for review and implementation, but has yet to be adopted or enacted into our local body of law.

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