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Harassment Suit Proceeds with Uncertainty

In the latest development in the sexual harassment complaint against legislator Federico Tinoco by a former aide, the Supreme Court ruled that it is “unnecessary” to lift his congressional immunity as part of the aide’s case against him in labor court.

That case is now proceeding – but, in keeping with the confusion that’s surrounded the issue since the complaint first emerged last year, it’s not entirely clear whether Tinoco could face sanctions if the court finds in his ex-employee’s favor.

Judicial Branch spokesman Fabián Barrantes told The Tico Times that because legislators’ immunity protects them from facing criminal charges, but not labor-court charges, the high-court justices ruled that Tinoco’s immunity doesn’t need to be removed in order for the labor case to proceed.

However, asked to confirm that a labor court would be able to apply sanctions to Tinoco if the former aide wins her case, Barrantes said he cannot.

“I can’t say anything at all, because I’d be getting ahead of myself,” he said. “The only thing I can indicate is that in this particular case, the issue is moving through the labor (court).”

The former aide, whose name is being withheld by The Tico Times and other media to protect her identity, has accused Tinoco of making flirtatious comments, kissing her, and firing her when she refused these advances.

The case came to light last year when the aide filed a complaint before the Legislative Assembly, which then formed a special commission to investigate. The commission ultimately ruled that there was insufficient evidence for a legislative decision, and urged the aide, who now works in the office of Tinoco’s fellow National Liberation Party (PLN) legislator Fernando Sánchez, to turn to the court system. Tinoco initially said he would renounce his immunity – though he maintained his innocence – but he has not done so.

Contacted by The Tico Times this week, Tinoco said, as he has on previous occasions, that he will renounce his immunity if judicial authorities request such a step.

He added that he does not like to discuss legal issues with the media and suggested that this newspaper interview other journalists to pose the question, “Has the media already convicted me?” He said he would respond to additional questions by e-mail, but did not answer The Tico Times’ written queries by press time.

A legislator facing criminal charges can lose his or her immunity through a threepart process. First, a judge must rule the activities of which the legislator is accused violate the country’s Criminal Code; the Criminal Chamber of the Supreme Court (Sala III) must then ask the assembly to remove immunity; and the assembly must vote to remove it (TT, Sept. 8, 2006).

Legislative Assembly Executive Director Antonio Ayales told The Tico Times that the aide has virtually no chance of succeeding in a criminal suit against Tinoco because the country’s Sexual Harassment Law does not categorize harassment by legislators or other elected officials as a crime.

“I don’t know whether it was a mistake, or on purpose,” he said of the void in the 1995 law, the first of its kind in Costa Rican history.

As a result, in Tinoco’s case, “Criminally, no crime exists, because it’s not typified in the law, so the Sala (III) can’t lift his immunity,” Ayales said.

The former aide has not filed criminal charges, perhaps because of this. Social Christian Unity Party (PUSC) legislator Ana Helena Chacón, president of the Women’s Affairs Commission, recently presented a bill containing reforms to the Sexual Harassment Law that would allow the country’s 1,107 popularly elected officials to be held accountable for violations.

Sort of accountable, that is. Julia de la O Murillo, one of Chacón’s advisors, told The Tico Times this week that the reforms allow the assembly to place a “moral sanction” on a legislator, President or Vice-President considered guilty of sexual harassment, but nothing more. In the case of a legislator, the reforms call for the assembly to form commission of three lawmakers from three different parties, who’d have two months to investigate and three months to come up with recommendations for the assembly as a whole. The assembly would then vote on whether to place a moral sanction on the accused colleague.

The same sanctions would apply for a President or Vice-President, except that the Supreme Elections Tribunal (TSE) would handle the case, Murillo explained. In the case of municipal leaders such as mayors, the Municipal Code already establishes the tribunal’s right to investigate and suspend a mayor’s credentials if it sees fit.

Establishing sexual harassment by a legislator or President as a crime that could be punished further would require reforming the Criminal Code, which could take some time – reforms to the code have been under way in the assembly for 13 years, Rebeca Araya, another of Chacón’s advisors, explained. (Additional reforms were proposed this week – see separate story.) She added that the Tinoco case caught the assembly off guard and revealed the existing law’s inadequacies.

“There was a huge void because there was really no precedent,” she said, adding that with the proposed reforms, the Women’s Commission is at least attempting to define who is responsible for handling harassment charges against officials.

“This is the fight for right now,” Ortega said, explaining that the Women’s Commission plans to seek more far-reaching changes in the future.



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