COLUMN – Minima juridicae: Legislative harassment? | Microjuris to the Day

Column of Professor Andrés L. Córdova Phelps.

By Professor Andrés L. Córdova Phelps

The P. of S. 326 seeks to include the so-called “street harassment” as a form of the crime of sexual harassment under article 135 (a) of the current Penal Code. This project was approved in the Senate by an overwhelming majority, and is now before the consideration of the House of Representatives. As we are used to, some legislators do not miss the opportunity to promote legislation without giving importance to the implications or consequences of their proposals in our political-constitutional framework. Like good Jacobins, the complexity of reality has to yield to the purity of their moralistic hallucinations. This attitude denotes a lack of prudence and understanding of the purposes of regulations in a democratic society that aspires to the protection of the individual rights of all citizens.

We must begin by pointing out that article 135 of the current Criminal Code already classifies sexual harassment in the workplace as a serious crime. Similarly, Law 84-1999 typifies as a misdemeanor or serious crime, depending on the circumstances, any person who intentionally manifests a constant or repetitive pattern of stalking behavior aimed at intimidating a specific person to the effect that he, or any member of your family could suffer damage, in his person or in his property; or who maintains such a pattern of conduct knowing that a certain person could reasonably feel intimidated. Written, verbal, or implied threats to a particular person are included in the definition of stalking. Both precepts are predicated on intentional conduct aimed at causing harm to another person. On the other hand, article 241 of the Penal Code typifies the disturbance of the peace, which could well be applicable in cases of this nature.

One wonders what is the need to legislate a new crime, which already appears to be contemplated in our legal system. A careful reading of the proposed text gives us the key. The text provides: “Any person who incurs verbalized obscene acts or gestures, insults or compliments of a sexual nature to a third person, in public or quasi-public spaces, and who through this behavior causes a situation that is intimidating, degrading, hostile or humiliating for the victim, will be sanctioned with the obligation to attend an Awareness Workshop against Street Harassment and a fine of fifty (50) dollars, or in the alternative, community work that replaces the fine.

The difficulty with this typification lies in its first sentence. It is obvious that the proposed offense does not require criminal intent. By merely incurring in the verbalized obscene act or gesture, the crime is committed. That is, criminal behavior is configured with mere expression. By equating expression with conduct, the text collides with the constitutional guarantees of freedom of expression and forces us to attend to the type of expression that is intended to be sanctioned.

Although it is true that obscene material has historically been excluded from the protection of freedom of expression, it is no less true that the jurisprudential doctrine has had great difficulty in articulating exactly what constitutes obscenity in expression. In Miller v. California (1973) the Supreme Court stated that to qualify a material as obscene it must (i) attract the prurient interest of the average person; (ii) illustrate sexual conduct in an “obviously offensive manner” as defined by community standards; and (iii) taken as a whole, must not have serious literary, artistic, political, or scientific value. Subsequent attempts to apply these criteria have shown how eminently subjective any definition of obscenity is. Just remember the exasperated expression of Associate Justice Stewart in Jacobellis v Ohio (1964) when trying to define pornography: “I know it when I see it”.

On the other hand, the mere use of “obscene” words does not in itself imply an exercise in street harassment. I am thinking, for example, of the well-known case of Cohen v. California (1968) where the expression “f*ck the draft” written on a jacket in protest against the Vietnam War constituted a protected exercise in political expression. It is worth the observation: not every expression of sexual content constitutes in itself a “verbalized obscene gesture”.

In addition, article 2 of the Penal Code includes the principle of legality which requires that the typified crime be expressly defined. The project does not define what constitutes a “verbalized obscene gesture” or an “expletive or compliments of a sexual nature” its meaning and scope is not very clear. What exactly constitutes a verbalized obscene gesture? It is not difficult to notice the judicial challenges due to their vagueness and excessive breadth.

Deep down, what beats in this project is a certain proselytizing puritanism; a claim that people speak as they want them to speak, think as they want them to think, exposed to the power of the State to send them to moral indoctrination camps when they break the law. Legislative harassment?

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COLUMN – Minima juridicae: Legislative harassment? | Microjuris to the Day