The Jeff Cumberbatch Column – Absurdity-at-Law II

Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

Last week’s first installment of this essay dealt in part with the immediately undecipherable and hitherto undeclared mischief behind the draconian criminalization of the cultural practice locally, and in many places elsewhere, of riding a bicycle on a road or a highway, without, according to Regulation 117A (1), “wearing a bicycle helmet” [not otherwise defined, except that it must have a chin strap that must be “securely fastened under the wearer’s chin”].

This query was misinterpreted by a few to mean that I was against the safety of riders in general and many nightmare scenarios were painted of young, healthy, bright children suffering irreversible brain damage after a helmetless fall from a bicycle. The common sense dictum that the individual should be required to guard against reasonable probabilities and not fantastic possibilities availed nothing in this regard, and I was left to assume therefore that there had been recently some unannounced high incidence of deaths or head injuries from local bicycle accidents that warranted this measure being enacted in its current form.

This notion of examining the mischief sought to be remedied by legislation raises at least two points for our consideration. First, whether it is practicable or even desirable to treat every mischief with the legislative solution and, second, whether it is possible to identify with any certainty the specific mischief intended to be obviated by the provision against cellular telephone use given the stated exception of the use of a hands free device.

As to the first, there is a view that too much law [sc. legislation] is indicative of a less than desirable society. According to the American law professor, Grant Gilmore, in “The Ages of American Law”, “Law reflects but in no sense determines the moral worth of a society. The values of a reasonably just society will reflect themselves in a reasonably just law. The better the society, the less law there will be. In heaven there will be no law, and the lion shall lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. The worse the society, the more law there will be. In hell there will be nothing but law, and due process will be meticulously observed.”

Second, given the cellphone’s traditional function, it might have been presumed that the mischief that the legislation is intended to forfend is the distraction that might ensue from the driver carrying on an animated conversation while driving or operating the vehicle. However, as Regulation 148A makes clear, “ a person may drive or operate a vehicle on a road or highway while at the same time talking on a cellular telephone that is in hands-free mode. [Emphasis added]. It seems clear from this therefore that the immediate mischief relates more to the freedom of the driver’s hands to operate the vehicle than to the distraction that might be caused by conversation. Yet, the use of the hands with the cellular telephone might be thought to relate more to texting or pressing buttons while driving the vehicle, plainly reckless and inconsiderate acts.

Much of the discourse surrounding the recent amendments to the Road Traffic Act owes its origin to the initial interpretation placed on the prohibition by the former head of the RBPF Traffic Division that was met largely with widespread populist disfavour and that was subsequently refuted both by the Force and the Minister of Transport himself, for what this latter is worth.

Yet, as we have seen frequently, the interpretation of legislation is something about which well-trained lawyers may differ, so that any clamour for certainty in this context may only be quelled by the opinion of an apical court. It was not that long ago that the nation was forced to deliberate on the definition of a single man under the Succession Act in Smith v Selby where the trial judge, Mr Justice Alleyne’s view that it related to the status of the individual at his death rather than during the statutory five year period was rejected by the local Court of Appeal, only for it to be subsequently restored and iterated by the Caribbean Court of Justice.

There are some of the firm view that statutory interpretation is made much more complex than necessary by the language employed by those who draft the laws. Such a reproof would certainly hold water in respect of this notorious, though probably apocryphal provision:

“In the Nuts (Unground)(Other than Groundnuts) Order the expression nuts shall have reference to such nuts other than groundnuts, as would, but for this Amending Order, not qualify as nuts (Unground)(Other than Groundnuts) by reason of their being nuts (Unground)”.

But the current dispute on the Road Traffic Amendment Act turns only on the meaning of “operate” and that on the Succession Act provision referred to earlier turned simply on the meaning of “ a single man”. While native common sense and literacy may assist in statutory interpretation, it does not suffice for all occasions since, in the English language, words are known by the company they keep, a canon that has resulted in rather odd results in some cases.

In this regard, I am watching with interest the interpretation that will ultimately be placed on the words “unwelcome” and “uninvited” in the recently passed Employment Sexual Harassment (Prevention) Act 2017. The relevant sections read as follows:

Meaning of sexual harassment

For the purposes of this Act, sexual harassment includes-

….

(b) The initiation of uninvited physical contact with a person;

(c) The initiation of unwelcome sexual advances or the requests of sexual favours from a person…

Is there a real distinction between unwelcome conduct and uninvited conduct? Is all uninvited conduct of a sexual nature unwelcome? Or some only? Which?

51 comments

  • thanks again for your education on the controvesial matter but somewhere in the nation newspaper one of the police officers who were left holding the bag on a response did refer to a regulation which defined stationary and which in my opinion did lend credence to the explanation of the the police but search as I can I cannot findvit

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  • Well Well & Cut N' Paste At Your Service

    I have learned during my long sojourn into multilingualism that the “english” words we use are rooted in latin…some greek….although our everyday english words usage are primarily spanish and french words…which would surprise those who are not aware but believe that english is some holy grail, it is not, multiplicities of words were stolen from here and there and combined to form and be labeled english, just like with everything else.

    there is a joke associated with that which would offend others but is greatly appreciated among linguals..

    Much of the legal terminologies are latin in nature and origin.

    Everything legal is subject to interpretation by those so trained….and only those very well trained in legal terminologies.

    Therefore, not just any lawyer, police or minister should be tangling with legal interpretations or informing the public of any new laws, legislations etc, unless thus trained.

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  • Some people heads hard Jeff lol

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  • Unvited physical contact is what it says,unwelcome seems to be more verbal but none the less both are moot if you can prove you can ride a bike

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  • Jeff Cumberbatch

    Unvited physical contact is what it says,unwelcome seems to be more verbal but none the less both are moot if you can prove you can ride a bike

    @Lawson, Huh???

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  • Yeah, Lawson huh?🤔

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  • Bernard Codrington

    @ Jeff

    Uninvited means that the action was not requested either in writing , verbally or in body language. Unwelcome may imply that it was not requested as defined above but ,never the less ,the recipient does/ did not object.

    The problem is who decides whether it was welcomed even though uninvited. Certainly not the judge. The jury, perhaps, appealing to its commonsense and the demeanor of the victim?

    You may have encountered cases (anecdotal) where the smart Alec of a lawyer enquired of the victim if she engaged in any involuntary activity/actions. Anecdotally the lawyer won the case when the victim answered in the affirmative. LOL

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  • I submit that Stanford was correct in his interpretation on the basis that an operator sitting at the controls of a parked vehicle is not committing a reportable offence in law other than one akin to impeding the flow of traffic etc.But such operator won’t be subject to an offence of parking for example simply because he/she can be instructed to move.Such vehicle left standing is in violation of the ‘parking’ offence.

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  • “Uninvited” and “Unwelcome”.
    Glad to see you are out front pointing out the dangers of having loose language.

    W\Also wondering how this will be interpreted by men, who believe that if you work hard enough a “No” can be converted to “Yes”.

    New laws cannot solve all our problems, parents and leaders to set an example for youngsters; they have to walk the walk.

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  • de pedantic Dribbler

    Lol…the joys of language interpretation. Lawson will surely unravel his apparent puzzle but it seems not so Gordian to me.

    If you touch my person and I didn’t agree or request such touchy-feely action then you have made uninvited physical contact.

    If you attempt to engage with me or to touch me and I don’t desire that action then you are making an unwelcome physical contact. In this case it could be a verbal attempt which I have scorned.

    Can the two dove tail? Surely….yet they can occur separate of each other.

    The bike thing is partly facetious re actual bike riding and helmet chat but also a sexual pun.

    So mainl,y, whether univited or unwelcome is moot when it’s clear the accused harasser is intent on his sexual gratification (riding the bike saddle) and thus has crossed the line.

    And of course Lawson may not be so intended 😊 but I imagined such because my query to the Dean would be: can’t a person initially unintentionally ‘invite’ their harasser but then very clearly not welcome their further advances.

    @Bernard, I see as I attempt to post, that you have detailed succinctly my laborious, long winded explanation.

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  • Jeff the problem is your use of the words ..physical contact…. that is not verbal, or in writing etc….that comes under your BROADer uninvited contact. But either way I have never heard of the neighborhood bike complaining of either.

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  • How does these throwaway words affect all that preceded them “in circumstances where a reasonable person would consider the conduct to be offensive.” ? Seem as if someone carved out a big loophole (my legal opinion)

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  • Hi Jeff,
    Help out the foolish
    (a) transmitting sexually offensive writing or material of any kind;
    (b) any other sexually suggestive conduct of an offensive nature
    These seem to suggest that if I did the above to you, DPD who is always in everybody’s business and observes me can claim that he was harassed by me?
    They are not specific enough…
    Is that true?

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  • I just realized how tough is the job of those who make the law in Barbados.
    If they copy it from elsewhere we call them cut and paste artist.
    And if the try to write it we find fault and suggest they could have looked elsewhere.
    Perhaps we have to find middle ground

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  • Hal Austinhow to avoid such attacks is

    Do Barbadian lawyers have to get indemnity insurance before they are allowed to practice, or is it just an LEC?

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  • not correcting typos: eye iz anonymouse

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  • Jeff Cumberbatch

    The drafting is not the happiest, but to me “uninvited” places a strict liability on the harasser if he or she does the act of initiating physical contact with the victim. In other words, once the act is done, and it was not invited, then there is liability.

    For “unwelcome”, the offender must have at least been earlier made aware or must have known as a reasonable man or woman that the conduct of making sexual advances or requesting sexual favors would not be welcomed by the victim.

    The Belizean provision:

    “For the purpose of this section, a person shall be taken to harass sexually another person if the first-mentioned person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or engages in other unwelcome conduct of a sexual nature to the other person…”

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  • Common sense!

    Never ” interfere with” or date a co-worker. There are plenty fish in the rivers, lakes and swamps.

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  • Caswell Franklyn

    I’ve had my first sexual harassment case and I am sad to report that this law was used as a sword rather than a shield in that case. Thankfully, the accusers could not keep their stories straight and I was able to prevail in the matter.

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  • Bernard Codrington

    @ Jeff at 10:50 AM

    There are somethings which the law cannot really determine and “unwelcome sexual harassment” is a very grey area. What is the dividing line between courtship of the opposite sex and an unwelcome sexual tryst in our culture? You seem to aver that the first sexual advance can be ignored but the subsequent advances constitute harassment?

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  • @Bernard

    How is courtship even possible if the other party has indicated there is no interest in the advance?

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  • Bernard Codrington

    @ David at 2:19 PM

    By courtship I mean persuading the other person to take one’s advances seriously. I am sure that many soap operas and romances are based on Jack pursuing Jill until she agrees to marry him or accept him as a lover.
    It is a grey area and like most pieces of legislation it will go through a process of trial and error until there is a new paradigm.

    The problem is that we have not clearly articulated what the real social objective is. At the back of most people’s mind is to eliminate” wuk for wuk”. Uh lie?

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  • It maybe more about falling in line with a global movement that may not be aligned with the personable small societies, our nuance.

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  • Bernard Codrington

    @ David at 2 :48 PM

    Precisely. Jumping on other society’s bandwagons; whereas we have our own local solutions.

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  • de pedantic Dribbler

    @Bernard, do you care to set out for my info those ‘local solutions’ currently in place or proposed that deals so adequately with workplace sexual harrassmet!

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  • David March 18, 2018 at 2:19 PM #

    …….”How is courtship even possible……….
    …….”It maybe more about falling in line with a global movement……”

    PRECISELY!.. throughout her tenure, many global initiatives has been engaged, one might think that she carries a “walk in” globalist.

    That SEPERATIST MOVEMENT is to prevent and destroy unions, and by extension the family unit and sound societal structures , prevent the birthing of souls for change (like the king who sought out and killed all the baby boys hoping to eliminate threats to his throne) , the push of legalizing abortions, for gay marriages, gender qualifications and the use of sex toys, it is also a tool for future “accusations and undermining” to implicate persons of standing or otherwise, all under the guise of sexual harassment.

    It is said that the minority “elite” always seek ways to exploit the public purse, well ask yourselves who benefits from these recent law enforcements. Like the water tanks, pumps and fixtures forced upon the population under the false narrative of drought, now helmets and hands free wireless devices…Who are the real Beneficiaries?

    As for definitions of words in Law, can only be base on intent and can that be determined?

    Case point..

    A gentleman on greeting a lady may on introduction, extend a kiss on the cheek or a hug.. one would determine that is a cordial greeting as it is a custom in some cultures invited/acceptable. Likewise the same approach to another lady could be deem offensive/uninvited, even sexual harassment. How can the law make a determination in such incidences?

    So come Kadooment Day all wuking up on persons cease…Yes?

    .

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  • Bernard Codrington

    @ dpD at 3 :38 PM

    Persons who have self respect and are prepared to work for what they want do not ” wuk for wuk”. The last time I checked the majority of Barbadians had a high level of morals and respect for each other. Those who varied from this path were dismissed from the workplace, ostracized and prosecuted to the full extent of the law.

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  • Not much wuk for wuk going on …on the island of DR. Moreau either

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  • @David March 18, 2018 at 2:48 PM “It maybe more about falling in line with a global movement that may not be aligned with the personable small societies, our nuance.”

    David you talking bare nonsense. The problem of sexual harassment is not new. It is not foreign. There is nothing personable about it. There is nothing nuanced about it. It is rude and crude bad behaviour.

    I went to work in the early 70’s and a man old enough to be my grandfather (he had several grandchildren who were older than I was) would attempt to touch my breast whenever just the two of us were in the office. Because of the nature of our work a minimum of two people had to remain in the office at all times. I took to locking myself in the women’s toilets when ever I had to remain in the office with him. And the idiot would knock on the door to try to get me to come out.

    Some may ask why I did not complain to management.

    The idiot was management.

    His actions were both uninvited and unwelcome.

    It was a good job, but I left.

    There is nothing funny about being sexually harassed on your job.

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  • Bernard Codrington

    @ Simple Simon at 11:03 PM

    You did what I expected a self respecting Bajan woman to do. And Bajan women have been doing that for nearly two centuries. We have to set boundaries and defend them.

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  • But people should not have to leave good jobs because of rude and crude bad behaviour. And when that bad behaviour comes from management it makes things so much worse as in a practical sense an employee has no recourse.

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  • Odd you make it sound like it could be the other way around an employee grabbing the bosses breast uninvited. That would be very unusual. Power corrupts it doesnt matter how little or how much power a person has over someone else there is always a few that will try and use it to their advantage. The problem we have today is that the pendulum may swing so far that people are afraid to work with each other or engage in office interactions in case they lose their job

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  • @lawson March 19, 2018 at 7:07 AM “Odd you make it sound like it could be the other way around an employee grabbing the bosses breast uninvited.”

    If an employeee did this to the boss, regardless of gender, it would also be wrong.

    lawson March 19, 2018 at 7:07 AM “The problem we have today is that the pendulum may swing so far that people are afraid to work with each other or engage in office interactions in case they lose their job.”

    I am not sure whom you are including or excluding when you write “we”, but some of “we” have always had to be afraid while at work.That fear was largely female. So maybe some men are afraid of losing their jobs now? Some women have always had of losing their job? Some women have always lost their jobs.

    Do you think that I enjoyed hiding in the women’s toilet? Do you think that I was not afraid?

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  • CORRECTION: So maybe some men are afraid of losing their jobs now? Some women have always had to be afraid of losing their job.

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  • As the mouthpiece for the globalists “SEPARATIST MOVEMENT”, this piece of legislation drove another nail into the coffin to destroy the family structure and by extension the society.
    Allow me to delve deeper.. the creation of a union has an initial impluse, this legislation twarts such, in that it questions the motives of intention for fear of liability, it also moves to twart the posiblity of birthing souls which might be predestined to bring positive change to the planet, while engaging in the promotion and legalization homosexuality, same sex marriages, innoculations via vaccines to curbin reproduction, condom use, advocating gender differences and lifesyles, the use of sex toys for alternative sex and therapudic modalities, with rethoric that children are not your own, they belong to the state.
    Yes, in the work environment, professionalism must be engaged, the language of this legislation need further consideration as it duplicates laws that already addresses conduct.

    Will there be any bumper wine pun Spring Garden on Kadooment day and nuff wuk up police presence? what

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  • Bernard Codrington

    @ Simple Simon

    Why would any Bajan want to work with a boss who sexually harasses his/ her staff ? You accepted the offer to work. If the purpose is not work you simply leave. Legislation, however cleverly draughted, does not deter predators.

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  • I agree with Bernard,some will always find a way of getting a leg over.SS I must admit I know nothing about sex reassignment surgery so I cannot even imagine how you felt. By we I meant society in general.
    I hope this does not become the new ptsd band wagon for malingerers it takes away from people who have been pressured and are sick

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  • de pedantic Dribbler

    @Bernard, thanks for the update. Your logic seems to dismiss some basic realities however. The principal reality it dismisses is to suggest that Bajans are extremely unique and thus are not similiar psycological creatures as the other billions in the world.

    Frankly, I personally can’t recall any instances where a Bajan employer was “dismissed from the workplace, ostracized and prosecuted to the full extent of the law” so in a sense logically within that context you are suggesting that we have never had any instances of such harassing workplace behaviour on island.

    So yes?… Bajans as extremely unique per your reasoning??

    Alas, I do recall – anecdotal hearsay only of course, that a former PM was reputed to “sexually harass” (unwelcome tho presumptively invited maybe) various of his female subordinates. True or not the lurid tales of his manhanadling of these professional ladies who surely had self respect and worked diligently to get ahead is a presumptive inkling that all is not kosher in this utopia you describe.

    Legislation can never deter predators even as it has never deterred burgalars, abusers or those charged with assault … it does punish them however and provides the victim some measure of relief and/or recompense for her/his hardship.

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  • I can only laugh at the image of the young ‘hard’ man on the block who, before jumping on his child sized bicycle, will stop to place a helmet on his head before cycling furiously down the gap to buy some rum or weed to bring back and share with his ‘boys’.

    It is just too funny to imagine.

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  • @ de pedantic Dribbler,

    You should not cast aspersions on the character of dead alleged woman beaters unless you have proof.

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  • @lawson March 19, 2018 at 1:26 PM “I hope this does not become the new ptsd band wagon for malingerers it takes away from people who have been pressured and are sick.”

    Never a malingerer. In 43+ years at work I took fewer than 43 days sick leave. A good healthy hard worker here.

    In my youth I was afraid and angry. I want to establish that not every person who complains of harassment is lying, is trying to get something from the harrasser, etc.

    In most cases the person being harassed just want to do a fair day’s wok, for a fair day’s pay, and then to go peaceably home at the end of the day.

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  • @Bernard Codrington March 19, 2018 at 12:10 PM “Why would any Bajan want to work with a boss who sexually harasses his/ her staff ? You accepted the offer to work. If the purpose is not work you simply leave.”

    Some of us entered the work force at 16, 17 or 18, with a few o’levels, no degree, certainly no graduated education. Just glad to get a service or clerical job to support ourselves and to help support younger siblings. Few options. Few jobs in an economy as tight as Barbados’ generalyl is. It was not a matter of “wanting to work for a bad boss”, but of wanting, no needing to earn one’s living.

    Young workers should not be harassed out of their jobs by dirty old men [or women]

    Understand.

    That’s all.

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  • CORRECTION: graduate education/post-graduate education.

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  • I am not against elites or elitism by merit, but sometimes I think that some people forget that most people who enter the workforce do NOT have a college/university education. In fact even today/2018 there are only 7 countries in which the majority of young workers have a college/university education: Canada, Ireland, Japan, Lithuania, Luxemborg, Russia and South Korea.

    in the early 70’s the list would have been much, much, much shorter.

    So the law needs to protect these workers who are vulnerable both because of their youth and inexperience, and their lack of a high level of formal education.

    We must not look at the whole world from the elite perch of a well educated middle aged men.

    Most of the worlds work is done by people who are young and poorly educated.

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  • Barbados is not one of those snowy workers paradises.

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  • A friend of mine just retired and returned over 600 days of sick leave back to the city, a new record, over 360 grand in time given back ….lauded by the city …hated by his peers for coming to work with colds and flu giving it to everyone else.There has to be a balance just like sexual harassment every case must be investigated..not fire first and ask questions later.
    The poor and uneducated are usually much more street wise than there academic cousins living in their protective bubbles,and can usually see whats happening well in advance. Then again since their job is so unskilled they can get one anywhere so should just say phuck off and leave.

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  • @lawson March 19, 2018 at 6:31 PM “A friend of mine just retired and returned over 600 days of sick leave back to the city, a new record, over 360 grand in time given back….lauded by the city…hated by his peers for coming to work with colds and flu giving it to everyone else”

    Not boasting. But healthy.

    Had the flu in 1975.

    And not again until 2006.

    But since 2006 it has been all downhill.

    Lol.

    Old age is a beech.

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  • @lawson March 19, 2018 at 6:31 PM “A friend of mine just retired and returned over 600 days of sick leave back to the city”

    i wonder if your friend is my brother outlaw?

    Sounds like him.

    Nice guy.

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  • is your brother outlaws nickname the speckled cadaver

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  • Bernard Codrington

    @ Simple Simon at 5:56 PM

    I fully understand the points you have made. Indeed I compliment you for doing what our mothers ,grandmothers, sisters and children have done to protect their integrity.

    The qualifications that you inserted to provide an excuse for others, not as determined as you, are unnecessary and distracting. Most of us acquired these academics along the way to equip us to do our jobs more effectively and efficiently. It is called continuous education.

    Others have also used race/ pigmentation to excuse low self worth and under- achievement. That also is a non – starter for those who love and respect themselves.

    So no more excuses please. This guy is not reading or hearing.

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  • pieceuhderockyeahright

    While few here may know this Mr. Caswell Franklyn is a union man who has very successfully defended many a young woman molested by old menses who are management who want to unfair young girls and be unwelcome

    It is time that every employee in Barbados, be you public or private sector employed, you should be able to join a union.

    The useless Ombudsman post needs to be abolished especially when that party has done nothing for all the years that he has been there.

    Certainly one does not want to publicize every iota of Ombudsman handled matters but can any one of you public denizens tell de ole man what de ef the Ombudsman has done?

    Is there a website?

    Is there a annual report?

    What the ef does retired magistrate Valton Benn do?

    These are the real issues of representation that need to be aired here in the Hallways of Meaningful Social Media and for which we HAVE TO REQUIRE WRITTEN RESPONSES

    We will always have men whose penises rule them, (De ole man ent no saint neider regarding making an “uninvited” advance that is also “unwelcome”, which any outreach to a female may be) but the thing is to understand appropriate outreaches and mechanisms that are there as recourse for Dr Simple Simon having to spend her working hours in a toilet cause I got the hots for her…

    Like

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