Antigua and Barbuda
- Duty to comply with ratified international human rights conventions
- Duty to comply with the Constitution as the supreme law
A. WHAT IS THE LEGAL STANDARD SET FOR STATE ACTORS AND LAWMAKERS IN ANTIGUA AND BARBUDA IN RELATION TO GENDER-BASED VIOLENCE?
Duty to comply with ratified international human rights conventions
State actors and lawmakers in Antigua and Barbuda have a legal duty to comply with the terms of the international human rights conventions that Antigua and Barbuda has ratified or acceded to. Antigua and Barbuda acceded to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) on 1 August 1989 and ratified the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women on 19 November 1998.
Antigua and Barbuda has a legal obligation to protect women and girls from domestic violence and sexual violence including sexual harassment. The State is required to put the necessary legal and administrative mechanisms in place to adequately protect women and girls from these forms of violence and to provide them with access to just and effective remedies. There must be sustained efforts by the State (such as continuous training of law enforcement personnel and judicial officers, sensitizing the media, educating the public) to challenge the stereotypical attitudes dominant in Antigua and Barbuda which help to perpetuate violence against women and girls.
Duty to comply with the Constitution as the supreme law
The Constitution of Antigua and Barbuda 1981 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 Antigua and Barbuda are:
• Domestic Violence (Summary Proceedings) Act 1999
• Sexual Offences Act 1995 which has been amended by the Law Revision (Miscellaneous Amendments) Act 2004
• Offences against the Person Act
• 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. Some acts of violence which cause physical injury amount to a criminal offence (for example assault, wounding) and may be prosecuted under the Offences against the Person Act and under the common law. The domestic violence legislation provides protection from physical and sexual violence, but it is not meant to exclude the criminal laws or replace criminal proceedings. Rather, it is to expand the range of options which are available to victims of domestic violence.
Antigua and Barbuda does not have legislation which specifically deals with sexual harassment. However, the common law can be used to provide remedies to persons who are victims of sexual harassment in the workplace by reliance on the law of torts (duty of care) and the law of contract (breach of implied trust/constructive dismissal).
I. DOMESTIC VIOLENCE (SUMMARY PROCEEDINGS) ACT 1999
The law governing domestic violence in Antigua and Barbuda is the Domestic Violence (Summary Proceedings) Act 1999. This Act creates a wide range of speedy and effective remedies which are aimed at reducing the incidences of domestic violence. A magistrate can grant:
• a protection order that prohibits abuse and molestation, excludes the abusive person from the home or workplace etc.
• an occupation order which gives a right to remain in the household residence
• a tenancy order which vests the tenancy in the person who applied for the order
• Other orders relating to use of furniture and household effects, payment of rent, mortgage, utilities etc., counselling
II. SEXUAL OFFENCES ACT 1995
The Sexual Offences Act 1995 governs sexual offences in Antigua and Barbuda. This Act was amended in 2004. The Act recognizes a wide range of offences and has provisions geared at offering greater protection to children and persons with mental disorders. There are also special provisions governing court proceedings. Not all offences under this Act involve what would be considered gender-based violence, for example prostitution. Some acts amount to offences even if they are consensual (example buggery).
Offences recognized under the Sexual Offences Act 1995 include:
• Indecent assault
• Serious indecency
• Sex trafficking/procuration
• Sexual offences in relation to children
• Sexual offences in relation to persons with mental impairment
The Sexual Offences Act defines rape as where a male person has sexual intercourse with a female person who is not his wife without her consent, knowing that she does not consent or is reckless as to whether she consents to the sexual intercourse. If a woman or a girl over sixteen years of age agrees to have sexual intercourse with another person because she is beaten, threatened with violence or misled as to the nature of the act, in such situations there would be no consent. The sexual intercourse would amount to rape.
The penalty for rape is imprisonment for life.
Sexual assault by a husband
Where a husband has non-consensual sexual intercourse with his wife, he may be prosecuted for ‘sexual assault’. It is in very limited circumstances that a husband can be prosecuted for sexual assault. There must be in existence between the husband and wife one of the following:
• a decree nisi of divorce;
• a decree of judicial separation;
• a separation agreement; or
• an order for the husband 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 fifteen years.
Buggery is recognized as anal sex between males and also anal sex between a male and a female. It is a criminal offence even if it is consensual. If buggery is committed by an adult on a minor, the penalty is imprisonment for life. If it is committed between adults, the penalty is imprisonment for fifteen years. If persons who are under eighteen years of age commit buggery, they may be imprisoned for five years.
Indecent assault means an assault which is accompanied by words or circumstances indicating an indecent intention. The penalty for this offence is imprisonment for five years.
An act of ‘serious indecency’ is defined as an act other than sexual intercourse (whether natural or unnatural) by a person involving the use of the genital organ for the purpose of arousing or gratifying sexual desire. There is no offence when the act is done in private between a male and a female person both of whom are above sixteen years of age and whom consent to the act. If however the act is committed upon a child who is under sixteen years of age or if it is committed by persons of the same sex, it amounts to an offence even though it may have been consensual or non-violent.
The penalty for the offence of serious indecency is imprisonment for ten years if committed on or towards a child under sixteen years of age and imprisonment for five years if committed on a person who is sixteen years of age or more.
Trafficking in persons /Procuration
Procuring a person to become a prostitute or an inmate of a brothel carries a penalty of imprisonment for fifteen years.
Procuring defilement of a person
Procuring a person to have sexual intercourse by threats, intimidation, deception, administration of drugs is a criminal offence. The penalty for doing this is imprisonment for fifteen years.
Sexual offences in relation to children
Children under sixteen years of age cannot in law give consent to sexual intercourse and a wide range of other sexual activities. They are however vulnerable to sexual violence and sexual exploitation. Many children are forced or lured into sexual relationships with adults largely because of their financial need and inadequate family and social support. It is a criminal offence for anyone to have sexual intercourse with a child who is under sixteen years of age. This is commonly known as statutory rape. It is also a criminal offence for a person to attempt to do so. There are stringent penalties for offences against children, especially where the child is under fourteen years of age. If a parent or guardian of a child causes or encourages that child to be sexually abused, that parent or guardian may be divested of all authority over the child and the court may appoint a new guardian for the child.
Sexual intercourse with girls under sixteen years of age
Having sexual intercourse with girl who is under fourteen years of age carries a penalty of imprisonment for life. Believing that the girl was sixteen years of age or more at the time of sexual intercourse is not a defence to this charge.
If a man has sexual intercourse with a girl who has attained the age of fourteen years but is not yet sixteen years old, he may be imprisoned for ten years. If the girl agreed to having sexual intercourse and the man honestly believed that the girl was sixteen years of age or more, then he will not be guilty of the offence. Also, if the person was not more than three years older than the girl when the sexual intercourse took place and the court is of the opinion that the evidence shows that as between the boy and the girl, the boy is not wholly to be blamed for the sexual intercourse which took place between them, then he will not be guilty of the offence (close in age defence).
Sexual intercourse with boys under sixteen years of age
The penalty for a woman having sexual intercourse with a boy who is under sixteen years of age is imprisonment for seven years. The woman will however not be guilty of the offence if she honestly believed that the boy was sixteen years of age or more (honest belief defence). She will also not be guilty of this offence if she is not more than three years older than the boy and the court is of the opinion that evidence shows that as between both of them, the woman is not wholly to be blamed the sexual intercourse between them (close in age defence).
Sexual intercourse with an adopted child etc.
It is a criminal offence for an adult to have sexual intercourse with a child whom he has adopted, or who is his step-child, foster child, ward or dependant. If the child is under fourteen years of age, the adult may be imprisoned for life. If the child is a minor who is fourteen years of age or older, the adult may be imprisoned for fifteen years.
Sexual intercourse with minor employee
It is a criminal offence for an adult to have sexual intercourse with his minor employee. The penalty for doing this is imprisonment for ten years.
Procuring a child under sixteen years of age to have sexual intercourse carries a penalty of imprisonment for fifteen years.
Legal obligation on owners and occupiers of premises
The obligation to protect a child under sixteen years of age 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 under sixteen years of age to be on their premises for the purpose of having sexual intercourse with a person. The penalty for doing this is imprisonment for ten years.
Sexual offences in relation to persons with mental impairment
Persons who are mentally subnormal are in special need of protection. The Act defines mentally subnormal as:
a state of arrested or incomplete development of mind which includes a significant impairment of intelligence and social functioning and irresponsible conduct on the part of the person concerned.
Having sexual intercourse with a mentally subnormal person (in circumstances which do not amount to rape) and where the mentally subnormal person is not one’s spouse is a criminal offence. Anyone who does this may be imprisoned for fifteen years. If the person who has sexual intercourse with a mentally subnormal person proves that he did not know that the other person was mentally subnormal, he has a defence to the charge.
C. HELP FOR SURVIVORS
I.GETTING HELP UNDER THE DOMESTIC VIOLENCE (SUMMARY PROCEEDINGS) ACT 1999
Where do I apply for an order?
You should make an application for a protection order, occupation order or a tenancy order at the Magistrate’s Court. You do not need an attorney to make the application for you.
Will the person who is abusing me be informed that I have made the application?
Yes. The abusive person against whom you are seeking the order must be formally made aware that you are seeking an order from the court. The abusive person must be served with a copy of the application for the order and also notice of the date at which, and the time and place at which the application is to be heard. This is called notice. In certain circumstances the court may grant a temporary or an interim order for your protection even though the abusive person has not been given notice.
How does the law define domestic violence?
The law defines domestic violence as:
any act of violence whether physical or verbal abuse perpetrated by a member of a household upon a member of the same household which causes or is likely to cause physical, mental or emotional injury or harm to the abused party or any other member of the household.
What types of orders and protection can I get?
The orders available are: protection order; occupation order and tenancy order.
The protection order is an order from the court. It prohibits the person who is abusing you from doing so. It further prohibits that person from engaging in certain activities such as: molesting you, using abusive language towards you, following you, making phone calls to you, entering or remaining in your home or your place of work.
An occupation order gives you the right to live in the home and prevents the abusive person from living there. It may also have a condition attached that the abusive person provides financial support.
A tenancy order vests you with the tenancy of the dwelling house which you and the abusive persons reside or hold together as tenants.
• Order for use of furniture etc
If you are granted an occupation order or a tenancy order, the court may also grant you permission by means of a further order for the use of the furniture, household appliances and household effects. This ancillary order would last for three months unless the court directs otherwise. It however expires whenever the occupation or tenancy order expires.
• Counselling order
The court can recommend that you or the abusive person or both of you receive counselling.
What must I prove to get the order?
Firstly, you must first establish that you qualify to seek relief under the Domestic Violence (Summary Proceedings) Act 1999. In order to qualify you must fall into at least one of the following categories:
• you are or were married to the abusive person
• you are single and living together with the abusive person who must also be single, as husband and wife in the same household without being legally married to each other (common law spouse)
• you are the abusive person’s former common law spouse
• you are a member of the household
Secondly, you must prove that the abusive person is engaging in, has engaged or threatens to engage in conduct which amounts to domestic violence towards you.
What factors will the magistrate take into account in deciding whether to grant the order?
If you are applying for a protection order, the magistrate will consider whether the person against whom you are seeking the order has used or threatened to use violence against you; or whether in all the circumstances the order is necessary for your protection.
If you are applying for an occupation order or a tenancy order, the magistrate will consider whether the order is necessary for your protection or whether the order is in the best interest of the child.
How long will the orders last?
These orders are not permanent. Any of the parties to the proceedings can apply to the court for the order to be discharged.
Do these orders affect anyone’s ownership of property?
No. These orders do not affect a person’s right to ownership of property.
Can I get any monetary order for my support of my children’s support or compensation for injuries?
The domestic violence legislation does not address these issues. Your application for these orders should be made in other proceedings.
What are interim or ex parte orders?
When you make an application to the court for an order, the abusive person is to be given notice of your application. However, in certain circumstances the magistrate may grant an order for your protection even though notice is not given to the abusive person. The magistrate may do this where she is satisfied that the delay may cause risk to your personal safety or serious injury or undue hardship.
The order which the magistrate makes in this circumstance is called an interim order. This is an order which is pending the hearing and determination of the proceedings. It is not a final order and is intended to last for a limited period. A copy of this order must be served on the abusive person and he should be notified of the date on which the court intends to have the actual hearing.
What happens if the protection order is breached?
A person who breaches a protection order or an interim order commits a criminal offence. The penalty for this is imprisonment for six months or a fine of $10,000.00 or both such fine and imprisonment.
What powers do the police have under the Act to protect me from domestic violence?
Power of arrest for suspected breach of protection order
A police officer is given the power to arrest without a warrant anyone whom he has reasonable cause to suspect has committed a breach of the protection order. Before a police officer arrests the person, he must believe that the arrest is reasonably necessary for the protection of the person on whose behalf the protection order was made. The Act sets out certain factors that the police officer should consider before he makes an arrest. These are:
• the seriousness of the act which constituted the alleged breach;
• the time that has elapsed since the alleged breach was committed and whether there is any further need for a cooling off period; and
• the restraining effect of other persons or circumstances on the person suspected of committing a breach.
Power of arrest where there is no protection order
Even where there is no protection order in force, a police officer may take all necessary and appropriate steps (including arresting a person) to protect a person from domestic violence. The police officer may do this where he knows or has good cause to believe that a person is a victim of domestic violence and is likely to be further abused.
Rights of the arrested person
A person who is arrested for breaching a protection order or for engaging in domestic violence has the right to make one telephone call. He can call anyone other than the victim of the domestic violence or the person who made the application for the protection order. The police officer must inform the arrested person of this right to make a phone call as soon as practicable after the arrest.
How will my privacy be protected during the court proceedings?
There will be restrictions on the persons who may be present in the court during the proceedings. The court can hear in the matter in camera (in private) and exclude any person from the court while the matter is being heard.
Further, there are restrictions on publication of reports of these proceedings. Other than criminal proceedings, the details of your case should not be published except where the permission of the court is granted to do so. The penalty for publishing a report without the permission of the court is a fine of $10,000.00. Publication of reports for bona fide professional or technical nature or those intended for circulation among members of the legal or medical professions, officers of the Public Service, psychologists, marriage counsellors or social welfare workers are exempt from this restriction.
How does the law ensure that the rights of the abusive person are protected?
The abusive person must be given notice of the application for an order and has a right to be heard by the magistrate to answer the allegations made. Where the magistrate makes an order against the abusive person, the abusive person has the right to apply for it to be discharged or its conditions varied. In determining this application, the magistrate will consider whether the abusive person is likely to continue engaging in domestic violence, whether the protection order is still necessary for the person’s protection. The abusive person as well as the person who applied for the order also has the right to appeal the magistrate’s decision concerning the making of an order or the refusal to make an order.
I. CRIMINAL TRIALS FOR SEXUAL OFFENCES
Is there any provision to protect the privacy of a survivor of sexual violence?
Proceedings concerned with sexual offences involving minors and offences of rape and sexual assault by a husband upon his wife are to be heard in camera (in private), unless the court directs otherwise.
The identities of the persons involved in a 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 limited circumstances. A person who contravenes this provision commits a criminal offence and may be fined $25,000.00 and imprisoned for two years on summary conviction. If convicted on indictment, the person may be imprisoned for five years and fined $25,000.00.
Is my past sexual history relevant?
The accused person is allowed to mention your sexual activities with him. However, he is not allowed to bring evidence of your sexual activity with other persons except where the court gives him permission to do so. It is only where the court is satisfied that such evidence is necessary for the fair trial of the accused person, that the court may allow this evidence.
What is “recent complaint” evidence and how will the court view it?
Where a woman says that she is the victim of a sexual offence, there is a rule at common law that allows her to give evidence that she actually told someone about what happened as soon as she was reasonably afforded the opportunity to do so. The person whom she told about the offence may also be allowed to give evidence. The judge can allow this to confirm the woman’s evidence of what happened and where consent was an issue in the case, to rebut or disprove consent. These rules are known as the common law rules regarding recent complaint.
These common law rules no longer apply in Antigua and Barbuda. The Sexual Offences Act clearly states that the common law rules relating to evidence of recent complaint in sexual offence cases are abolished.
Must there be independent evidence to confirm my account of the violation?
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.  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. Antigua and Barbuda should be guided by this position at common law.
 P. Murphy, Murphy on Evidence (11th edn, Oxford University Press 2009) 580
 P. Murphy, Murphy on Evidence (11th edn, Oxford University Press 2009) 635