The Jeff Cumberbatch Column – Bearing False Witness
Thou shalt not bear false witness against thy neighbour– Exodus 20:16
And so, the seemingly daily revelations continue. Sometimes, against the most unlikely perpetrators, if one were to judge from their current image as it is portrayed on the screen, big or small, or in other public media. I am referring of course to the allegations of past sexual misconduct ranging from harassment to sexual assault that appear to provide continuous and ample fodder for the daily newsfeeds. Interestingly enough, the phenomenon appears not to have caught on as yet in the region or locally. This is mildly surprising, given our penchant for mimicry of cosmopolitan cultural mores. For instance, we have no compunction in celebrating last week a Black Friday of consumption, even though there is here no necessary prelude of Thanksgiving, and we glibly observe Halloween without the earnestness of the following All Saints Day. But I digress.
My inquiry today relates to the eventuality of any of these accusations being found to baseless. It bears reminder that in most of the cases so far, the accused has managed to express regret for his alleged misconduct and made apology therefor, although in a very few cases bizarrely expressing no recollection of the incident(s).
As has been seen, the allegation, whether admitted or not, appears inevitably to result in a consequence of loss of goodwill for the accused entailing the termination of contractual relations, loss of endorsements and general obloquy. Sexual misconduct is a very serious allegation and the dire consequences appear to bear no relation to the truth of the matter. The mere allegation appears to suffice in some cases.
Of course, if it should be discovered that the allegation is untrue, then the imposition of any of the consequences itemized above would be most unfair. To avoid this calamity, legislatures that seek to prohibit this form misconduct have generally been lobbied to provide an appropriate sanction for accusations that have been falsely made. Barbados is no exception. In its recently created statute, the Employment Sexual Harassment (Prevention) Act 2017, section 28, marginally noted as “Penalty for making false complaint”, provides as follows:
A person who makes a false complaint of sexual harassment against another person is guilty of an offence and is liable on summary conviction to a fine of $10 000 or to imprisonment for a term of 2 years or to both.
So too does Belize in its Protection against Sexual Harassment Act 1996, where, according to section 21:
Any person who makes any false, vexatious or frivolous complaint against another person for an alleged contravention of any provision of this Act shall be guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars, or to imprisonment for a term not exceeding six months, or to both such fine and imprisonment.
The clear dissuasiveness of the criminal sanction, especially in Barbados, should serve to ensure the making of all but the more provable complaints but, at the same time, it may also serve to maintain the culture of silence that existed hitherto and that might account for the current spate of accusations for misdeeds that would have occurred at a time when the culture connived to turn a blind eye to such misconduct.
One suggestion in this regard might be to approximate the criminal liability in this instance to the liability that would inure if the accuser were sued for defamation. That a false accusation of sexual harassment is grossly defamatory of the accused is impatient of argument but, provided the complaint is made to a competent authority in order to seek redress, such an accusation would have been made on an occasion of qualified privilege, thus rendering the accuser immune from liability for defamation. This is made clear in the dicta of Lord Diplock of the House of Lords, then Britain’s highest court, in Horrocks v Lowe (1974):
…as a general rule English law gives effect to the ninth commandment that a man shall not speak evil falsely of his neighbour. It supplies a temporal sanction: if he cannot prove that defamatory matter which he published was true, he is liable in damages to whomever he has defamed…The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue. [Emphasis added]
However, it should be noted that the privilege of the occasion in this case would not be absolute and is liable to be defeated by proof, inter alia, that the occasion is being misused for a purpose other than that for which the privilege was intended or is otherwise affected by malice. According to the learned Law lord,
…It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit – the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.
Although it might appear to be rather bad form to have to amend an Act of parliament so soon after its passage, I am of the considered view that the section should penalize accusations that are made maliciously only. Thus, so long as the claimant honestly believes that the event amounted to such as to justify an accusation of sexual harassment, he or she should not be held criminally liable except on proof of malicious intent.