Anguilla

WHAT IS THE LEGAL STANDARD SET FOR STATE ACTORS AND LAWMAKERS IN ANGUILLA IN RELATION TO GENDER-BASED VIOLENCE?

WHAT LAWS ADDRESS GENDER-BASED VIOLENCE?

HELP FOR SURVIVORS


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A. WHAT IS THE LEGAL STANDARD SET FOR STATE ACTORS AND LAWMAKERS IN ANGUILLA IN RELATION TO GENDER-BASED VIOLENCE?

Duty to comply with ratified international human rights conventions

State actors and lawmakers in Anguilla have a legal duty to comply with the terms of the international human rights conventions to which it is a State Party. The main international human rights convention in relation to gender-based violence, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979 has not yet been extended to Anguilla.

Duty to comply with the Constitution as the supreme law

The Constitution of Anguilla 1982 is the supreme law. It guards the human rights of all persons within the country and holds the State accountable for violation of human rights. Gender-based violence threatens women’s right to life and to security of the person. The obligation mandated by the Constitution to protect the human rights of persons within the country extends to a positive obligation on the State to protect women and girls from domestic violence and sexual violence.

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B. WHAT LAWS ADDRESS GENDER-BASED VIOLENCE?

The laws which address gender-based violence in Anguilla are:

Criminal Code Chap C140 “2000 Rev”. and

• the common law.

The legal framework which protects women and girls from gender-based violence includes the Constitution, Acts of Parliament and rules from the common law. At present, Anguilla is working to finalize the domestic violence bill. The Criminal Code governs sexual offences including sexual harassment. With respect to sexual harassment, the legislation is directed towards the protection of children. In all other cases, resort would have to be made to the common law to provide remedies for persons who are victims of sexual harassment. Reliance can be placed on law of torts (duty of care) and the law of contract (breach of implied trust/constructive dismissal).

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I. DOMESTIC VIOLENCE BILL

Efforts are being made to finalize the Domestic Violence Bill under the Family Law Reform Committee.[1] The Bill allows for the making of a protection order against domestic violence. The definition of domestic violence includes physical, sexual, psychological and emotional abuse as well as harassment and intimidation. The scope of persons protected includes: persons who are or were married; persons living together as man and wife although not legally married and also persons in visiting relationships. The Bill also allows for the making of orders with respect to financial support and counselling. The powers and duties of the police under the legislation are expressly stated. There are also provisions geared at protecting the privacy of the complainant during the court proceedings.

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II. CRIMINAL CODE Chap C140 “2000 Rev

The Criminal Code Chap C140 “2000 Rev” governs sexual offences (including sexual harassment) in Anguilla. Not all offences under the Code involve what would be considered gender-based violence, for example prostitution. Some acts amount to offences even where they are consensual, for example buggery.

Offences recognized under the Criminal Code include:

•Rape

• Sexual assault

•Indecent assault

• Buggery

•Sex trafficking/procuration

•Sexual offences in relation to children

•Sexual offences in relation to persons with mental impairment

• Sexual harassment in relation to children

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OFFENCES

Rape

Rape is defined as where a man has unlawful sexual intercourse with a woman without her consent knowing at the time of the sexual intercourse that she does not consent or is reckless as to whether the woman consents to the sexual intercourse. If a woman agrees to have sexual intercourse with a man because she is beaten, threatened with violence, misled as to the nature of the act etc., the law provides that there is no consent and the sexual intercourse amounts to rape.

The penalty for rape is imprisonment for life.

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Sexual assault

Where a husband has sexual intercourse with his wife without her consent by force or fear, it is recognized as “sexual assault” not rape. It is only where there is in existence between the husband and the wife any of the following that a husband can be prosecuted for committing the offence of sexual assault:

i) a decree nisi of divorce

ii) a decree of judicial separation

iii) a separation agreement or

iv) any other order of a court that orders him not to molest his wife or have sexual intercourse with her.

The penalty for sexual assault by a husband upon his wife is imprisonment for seven years.

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Indecent assault

Indecent assault means an assault which is accompanied by words or circumstances indicating an indecent intention. The penalty for this offence (whether committed upon a man or upon a woman) is imprisonment for five years.

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Buggery

Buggery is a criminal offence which carries a penalty of imprisonment for ten years. Attempting to commit buggery carries a penalty of imprisonment for five years. If a person commits an assault with the intent to commit buggery, that person may be imprisoned for five years.

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Procuration/sex trafficking

It is an offence for a person to procure or attempt to procure a woman to have sexual intercourse or to become a prostitute or an inmate in a brothel. The penalty for this offence is imprisonment for three years.

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Sexual offences in relation to children

The Criminal Code of Anguilla goes much further than most laws in the English-speaking Caribbean in recognizing a wide range of offences often committed against children. It criminalizes sexual harassment of children and criminalizes the failure to disclose one’s HIV infection prior to having sexual intercourse with a child who is between the ages of sixteen and eighteen.

Children under sixteen years of age cannot legally consent to sexual intercourse and a wide range of other sexual activities. They are however vulnerable to sexual abuse. Many children are forced or lured into sexual relationships with adults largely because of financial need and inadequate family and social support. It is a criminal offence for anyone to have sexual intercourse with a child under sixteen years of age. This is commonly known as statutory rape. There are stringent penalties for sexual offences committed against children especially where the child is under fourteen years of age.


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Sexual intercourse with children under sixteen years of age

Having sexual intercourse with a child who is under fourteen years of age is a criminal offence which carries a maximum penalty of imprisonment for life. If a person attempts to have sexual intercourse with a child who is under fourteen years of age, the penalty is imprisonment for seven years.

A person may be imprisoned for twenty years for having sexual intercourse with a child who is between fourteen and sixteen years of age. Attempting to have sexual intercourse with such a child is also an offence. The penalty for this offence is imprisonment for seven years.

Defence

A person who has or attempts to have sexual intercourse with a child who is between fourteen and sixteen years of age will however not be convicted of an offence if that person is under twenty-one years of age and has not been previously charged with a similar offence and at the time, he believed that the child was sixteen years of age or older and has reasonable cause for that belief.

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Indecent assault on a child

It is an offence for a person to commit any act which amounts to an indecent assault on a child. The penalty for this offence is imprisonment for eight years.

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Procuration/sex trafficking of a child

A person who procures or attempt to procure a child to have unlawful sexual intercourse or to become a prostitute may be imprisoned for eight years. If a person persuades, aids or encourages a child to solicit for immoral purpose, that person may be imprisoned for eight years. Procuring or attempting to procure a child to have unlawful sexual intercourse by threats or intimidation is also a criminal offence which carries a penalty of imprisonment for eight years.

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Administering drugs etc. to a child for the purposes of sexual intercourse

It is an offence for a person to administer to or cause a child to take any drug or thing with the intent to stupefy or overpower that child so as to cause the child to have unlawful sexual intercourse. The penalty for this offence is imprisonment for eight years.

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Living on earnings of prostitution of minor

It is an offence for a person to knowingly live wholly or in part on the earnings of prostitution of a child. Anyone who does this may be imprisoned for five years.

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Causing or encouraging prostitution of minor

It is an offence for an adult to cause or encourage his dependent child who is under eighteen years of age to be engaged in prostitution related activities or to cause that child to have sexual intercourse. It is also an offence for an adult to cause an indecent assault to be committed against his dependent child. Any adult who commits any of these offences may be imprisoned for five years. A dependent child includes: adopted child; step child; child who is maintained by the adult; child who is treated as a child of the family etc.

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Legal obligation on owners, occupiers of premises

The obligation to protect a child from defilement extends to all owners, occupiers, managers of premises and persons in control of premises. It is a criminal offence for such adults to permit children to be on their premises for the purpose of having unlawful sexual intercourse with a person. An owner, occupier, manager or a person in control of premises who commits this offence may be imprisoned for ten years.

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Sexual offences in relation to persons suffering from mental disorders

Sexual intercourse with children suffering from mental disorders

It is a criminal offence for a person to have unlawful sexual intercourse with a child who is suffering from a mental disorder under circumstances which prove that the person knew at the time he was having sexual intercourse with the child that the child suffered from a mental disorder. The penalty for this offence is imprisonment for life. Attempting to do so carries a penalty of imprisonment for seven years.

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Sexual intercourse with women suffering from mental disorders

It is a criminal offence for a man to have unlawful sexual intercourse with a woman who is suffering from a mental disorder. A man who does this may be imprisoned for ten years. If however, the man did not know and had no reason to suspect that the woman was suffering from a mental disorder, he cannot be convicted of the offence.

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Indecent assault upon a woman suffering from a mental disorder

A woman who suffers from a mental disorder cannot in law give any consent which would prevent an act from being an assault. A person who commits an indecent assault against a woman who suffers from a mental disorder may be imprisoned for five years. A man can be held to be guilty of this offence only if he knew or had reason to know that the woman was suffering from a mental disorder.

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III.SEXUAL HARASSMENT

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Sexual Harassment of Children

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Protection of children

Children are protected against sexual harassment. The Criminal Code provides makes it an offence for a prospective employer to importune or solicit sexual favours from a child in the terms or conditions on which he offers employment to the child. It is also an offence for that employer to threaten to reject the child’s application for employment because the child refuses to submit to the prospective employer’s request for sexual favours.

The Criminal Code further recognizes that children may be the victims of sexual harassment with respect to admission into institutions. It is an offence for a person to importune or solicit sexual favours from a child in the terms or conditions on which he offers admission into an institution.

Persons who are in a position of trust and persons who are co-workers of the minor who importune or solicit sexual favours from a child also commit an offence.

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Protection for persons in authority

Persons in position of authority in a place of employment or an institution are also protected against sexual harassment from minors. It is an offence for a person who is between sixteen and eighteen years of age to importune or solicit sexual favours from persons in position of authority in a place or employment or in an institution.

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Penalty for sexual harassment

Sexual harassment is a criminal offence. A person who commits the offence of sexual harassment may be imprisoned for five years or fined $10,000.00 or be subject to both such fine and imprisonment.

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C. HELP FOR SURVIVORS

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CRIMINAL TRIALS FOR SEXUAL OFFENCES

Is there any provision to protect the privacy of a survivor of sexual violence?

The court restricts the persons who may be present at the hearing. The court may at the request of the victim allow certain persons to be present.

Further, the identities of the persons involved in the sexual offence matter are protected. There should be no written publication or broadcast available to the public which may lead members of the public to identify the accused and the victim. This restriction may be removed in only certain circumstances. A person who contravenes this provision commits an offence and may be imprisoned for two years or fined $2,000.00.

Must there be independent evidence to confirm my account of the violation?

Corroboration

No.

You are concerned with what the law describes as corroboration. Corroboration is independent evidence which implicates a person accused of a crime by connecting him with it. In sexual offences cases, judges were required to warn the jury that it was dangerous to convict a person upon the uncorroborated evidence of a woman who complained that she was the victim of a sexual offence. [2] The reason for this warning was the mistaken belief or widely held perception that women often lie about being raped. Judges are no longer mandated to give a corroboration warning in sexual offences cases. In R v Gilbert (2002) 61 WIR 174, the Privy Council decided that the question whether to give a corroboration warning in sexual offence cases is a matter for the discretion of the trial judge. Anguilla should be guided by this position at common law.

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[1] Statement by the Minister responsible for Home Affairs, including Human Rights and Gender, Walcott Richardson, at the Workshop for the Elimination of Discrimination against Women hosted by Anguilla, 27th – 29th October 2010,published by the Anguilla News on 29th October 2010 available at <http://www.anguillanews.com/enews/index.php/permalink/3626.html >

And The ANGUILLIAN on 5th November 2010; available at < http://www.anguillian.com/article/articleview/8962/1/140/>

[2] P. Murphy, Murphy on Evidence (11th edn, Oxford University Press, 2009) 635