Sexual Harassment Law Criticized
A sexual harassment complaint filed last week against National Liberation Party (PLN) legislator Federico Tinoco by his former aide has cast new light on what appear to be old problems with the country’s Sexual Harassment Law.
As Legislative Assembly leaders this week named an external commission to investigate the allegations, Ombudswoman Lisbeth Quesada called for new legislation to ensure justice for victims.
According to Quesada and other critics of the way complaints are handled, the most significant problems are negligence on the part of employers and, in the case of the assembly, a legal void surrounding legislators accused of harassment. A 1997 decision by the Government Attorney’s Office said legislators, as elected officials, can’t face internal sanctions for harassment. In addition, the Constitution gives all legislators immunity during their terms.
In her complaint, filed Aug. 21, the aide, 37, alleges that Tinoco repeatedly made flirtatious and threatening comments to her, kissed her on the lips, and fired the married mother of two after she refused his advances during a work-related trip to the Caribbean in early August. The woman, whose name was released by the assembly but is being withheld by The Tico Times and other media to protect her privacy, has said she would consider bringing criminal charges against the legislator, but has not yet done so.
“Before the altar of my country and to Costa Rican women, I offer my humble apologies,” Tinoco, 56, told the press last week, adding that he would consider renouncing his immunity – a step President Oscar Arias, a personal friend of Tinoco’s, urged him publicly to take (TT, Sept. 1).
After the official complaint was filed the next day, he released a statement claiming he had done nothing wrong and would prove his innocence.
He said in the statement that he would not “participate in a lynching, a circus;” his staff members told The Tico Times this week that Tinoco is not making any further statements to the press.
He did not attend sessions at the assembly this week, having requested unpaid leave. Tinoco staff member Liliana Sánchez told the daily Al Día that the legislator “will stay the whole week in his house because of a medical recommendation” and spend time with his wife of 23 years. At press time, it was not known whether he would return to work next week or request additional leave.
During his absence, assembly president Francisco Pacheco, also of Liberation, said a three-person team – former Supreme Court justice Hugo Picado, University of Costa Rica (UCR) Medical School Dean Carmen Lidia Guerrero, and human-resources specialist María de los Angeles Aldi – has until Sept. 21 to investigate the case and make recommendations to the assembly. Liberation’s Ethics Tribunal is also conducting an investigation.
“It worries this Ombudswoman enormously that in a certain moment, immunity means impunity,” Quesada said Tuesday during a visit to the assembly’s Women’s Affairs Commission.
Libertarian Movement legislator Carlos Gutiérrez, a commission member, said more should be done to establish exactly what constitutes sexual harassment.
“Once you know where you’re going, you know how to go,” he said, adding that some may have trouble deciding “what’s a joke, what’s not a joke… It’s not very well defined, and it’s very easy… to cross the line.”
Ligia Marín, whose title within the Ombudsman’s Office is Defender ofWomen, said cultural change is needed.
“We can’t think we’re going to eliminate sexual harassment in a machista society,” she told the commission.
Problems in Practice
The aide’s complaint, which says Tinoco called her “my last temptation,” told her “you earn the right each day to come to work the next day” and promised her that “I’ll make you Justice Minister,” has brought to the front pages an issue that’s relatively new in Costa Rica. Quesada explained at Tuesday’s hearing that the country had no laws whatsoever defining sexual harassment until 1995.
Between 1989 and 1994, the year when the proposed law was discussed, only three sexual harassment cases had been filed in the courts, according to a statement from the Ombudsman’s Office. The lack of a clear definition of harassment made it difficult for the office to handle the “constant complaints of sexual harassment” it received, the statement said.
The law defines harassment and its consequences in “work or teaching relationships,” establishing the responsibility of “all employers or bosses” to ensure workers are respected by implementing a internal sexualharassment policy. It defines sexual harassment as “any undesired sexual conduct,” which can include the use of sexual words, physical conduct of a sexual nature or coercion involving sexual favors.
It requires that public institutions report all harassment complaints to the Ombudsman’s Office and all private businesses to the Labor Ministry. As a result, the Ombudsman’s Office has a thorough vision of how public-sector complaints have been handled.
Common problems include employers insisting on direct proof of harassment, despite the fact that such proof often does not exist in harassment cases; reacting to complaints by simply transferring the accuser; giving the accused party three months’ paid leave while the investigation is carried out, with no further sanctions; and temporarily shelving the complaint, then discarding it altogether once the three-month time frame the law suggests has passed, the statement said.
The Labor Ministry’s supervision of the private sector “has been very weak, practically nonexistent,” according to the document. (The Ombudsman’s Office handled 65 complaints last year, the Labor Ministry only six.) In 1997, the same legislators who proposed the original law – Antonio Alvarez Desanti, then of Liberation, and Constantino Urcuyo of the Social Christian Unity Party (PUSC) – presented a new bill to reform their law based on concerns expressed to them by various institutions.
The reforms, now in the assembly archives, would increase the supervisory powers and responsibilities of the Ombudsman’s Office and Labor Ministry.
Commission president Ana Helena Chacón, PUSC, told Quesada she will work on a new law and seek support from other parties to ensure it is approved quickly.
“In general, Costa Rica has wanted to be a country where human rights are respected, but in (the area) of gender equity… we haven’t been so equal,” she said.
The Immunity Card
According to Quesada, a new law should also address an issue specific to the assembly: the accountability of legislators in sexual harassment proceedings.
In 1997, a legislative aide filed a harassment complaint against a legislator, but the Government Attorney’s Office ruled the 1995 law can’t be applied to legislators because they and their aides don’t have a work relationship. (Aides are technically paid, hired and fired by the assembly, but legislators have near-total control over selecting and dismissing their aides, according to Assembly Executive Director Antonio Ayales).
A legislator is not “authorized (to engage in) any of the conducts the law prohibits and sanctions. However, it is impossible to sanction (them),” the decision states.
What’s more, legislators’ immunity, established by the Constitution, keeps lawmakers from facing criminal charges unless they renounce that right or are stripped of it by an assembly vote, Ayales said. For such a vote to take place, the accuser would have to file criminal charges against the legislator; the Chief Prosecutor would investigate and present a report to the Supreme Court; and the Supreme Court would decide whether the accusations constitute a crime. If so, the court would pass the case to the Legislative Assembly, where legislators would vote on whether to lift the accused party’s immunity, according to legal experts consulted by The Tico Times.
Ahmed Tabash, spokesman for the Ombudsman’s Office, explained that not all sexual harassment complaints involve violations of the Criminal Code. Verbal harassment generally won’t be taken up in a court of law, he said, though physical acts – such as rape, assault or indecent exposure – are established as crimes in the code.
Because of this, it’s impossible to tell how many cases filed before the courts stemmed from harassment complaints. The courts categorize them according to the Criminal Code, Judicial Branch spokeswoman María Isabel Hernández said.
The aide says she’s prepared to continue fighting. In an interview with the daily La Nación, she said she made the decision to file the complaint to show her two daughters how to stand up for their rights, and that she has the full support of her family – as well as the staff of Liberation legislator Fernando Sánchez, which she joined after she was fired Aug. 7.
She’s prepared to go on “until the end… If I have to go to the courts, I will,” she told the daily.
The Tico Times spoke with the aide Tuesday afternoon, but she said her lawyer would have to approve any further interviews.
Controversy regarding the assembly’s attitudes toward the case arose Wednesday when friends of Tinoco held a mass in support of Tinoco’s family. Legislator Chacón criticized the assembly’s Public Relations Department for publicizing the mass, saying the assembly should maintain an impartial stance, according to La Nación.
Rodrigo Arias, President Arias’ spokesman and brother, said he doesn’t believe the case will have long-term effects for the party that brought his brother to power.
“I don’t feel it will necessarily affect the party,” he told The Tico Times. “It’s an individual case… We have told him to separate himself from the assembly without a salary. If he committed a mistake, he should pay for the consequences.”
A group of approximately 25 people, mostly women associated with a group called “Las Doñas” that opposes the Central American Free-Trade Agreement with the United States (CAFTA), stood outside the Legislative Assembly Monday to show their support for the unnamed aide.
Sol Fernández, 50, an organic farmer from the eastern Central Valley city of Cartago, said she hopes the case now making headlines will inspire other women to come forward.
“It’s just the tip of the iceberg,” she said.
Tico Times reporter Blake Schmidt contributed to this report.
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