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

• Duty to comply with ratified international human rights conventions
• Duty to comply with the Constitution as the supreme law

WHAT LAWS ADDRESS GENDER-BASED VIOLENCE?

• DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1992
• SEXUAL OFFENCES ACT 1992

HELP FOR SURVIVORS

• GETTING HELP UNDER THE DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1992
• CRIMINAL TRIALS FOR SEXUAL OFFENCES

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

Duty to comply with ratified international human rights conventions

State actors and lawmakers in Barbados have a legal duty to comply with the terms of the international human rights conventions that Barbados has ratified or acceded to. Barbados ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) on October 16, 1980 and ratified the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women on May 16, 1995.

Barbados 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 Barbados which help to perpetuate violence against women and girls.

Duty to comply with the Constitution as the supreme law

The Constitution of Barbados 1966 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 Barbados are:

• Domestic Violence (Protection Orders) Act 1992

• Sexual Offences Act 1992 (which was amended by the Evidence Act 1994)

• Offences against the Person Act Cap. 141

• 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 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.

Barbados 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). Presently, there is a Sexual Harassment Bill which may become law in the near future.

I. DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1993

The law governing domestic violence in Barbados is the Domestic Violence (Protection Orders) Act 1993. 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

• gives the applicant the right to occupy the home

• provides for the use of furniture and household effects, payment of rent, utilities etc.

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II. SEXUAL OFFENCES ACT 1992

The Sexual Offences Act 1992 governs sexual offences in Barbados. 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 1992 include:

• Rape

• Buggery

• Indecent assault

• Serious indecency

• Sex trafficking/procuration

• Sexual offences in relation to children

• Sexual offences in relation to persons with mental impairment

OFFENCES

Rape

The law governing rape in Barbados is gender neutral. Both men and women are protected the offence of rape. Rape is defined as where a person has sexual intercourse with another person without that person’s consent, knowing that the person does not consent or is reckless as to whether that person consents. If a person agrees to sexual intercourse because of force, threats of force, intimidation etc, then the law does not recognize this as consent. Sexual intercourse in these circumstances is deemed to be rape. Being forced to perform oral sex on a man or being forced to have an object penetrated in one’s vagina or anus is also recognized as rape.

The penalty for rape is imprisonment for life.

Marital rape

A husband can be found to have committed the offence of rape against his wife. If a husband forces his wife to have sexual intercourse with him or because of fear causes her to have sexual intercourse with him he may be prosecuted for rape. The husband will be found to have committed the offence of rape against his wife, only where one or more of the following conditions exist. These are: the husband and wife are separated or have begun proceedings to dissolve the marriage, the husband has been ordered by the court not to molest or have sexual intercourse with his wife.

The penalty for the offence of marital rape is imprisonment for life.

Indecent assault

Indecent assault means an assault which is accompanied by words or circumstances indicating an indecent intention. The penalty for this criminal offence is imprisonment for five years.

Serious indecency

An act of “serious indecency” is defined as an act (whether natural or unnatural) by a person involving the use of the genital organs for the purpose of arousing or gratifying sexual desire. The penalty for this offence largely depends on the age of the victim. If a person commits an act of indecency against a child who is under sixteen years of age or if a person incites the child to commit an act of serious indecency with another person, the penalty is imprisonment for fifteen years. If the act is committed against a person who is sixteen years of age or older or if a person incites that person to commit an act of serious indecency with another person, the penalty is imprisonment for ten years.

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Procuring defilement of a person

Anyone who procures a person to have sexual intercourse by threats, intimidation, false pretences, administration drugs etc. may be imprisoned for fifteen years.

Buggery

The penalty for buggery is imprisonment for life.

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 children under sixteen years of age

If a person has sexual intercourse with a child who is under fourteen years of age, that person may be imprisoned for life. It is irrelevant whether the person believed that the child was sixteen years of age or older.

Anyone who has sexual intercourse with a child who is not younger than fourteen years of age but is not yet sixteen years old may be imprisoned for ten years. The honest belief defence is available to the accused person if he was not more than twenty-four years of age when the sexual intercourse took place and he has not previously been charged with a similar offence. The accused person will not be guilty of the offence if he honestly believed that the child was sixteen years of age or older.

Having sexual intercourse with an adopted child etc.

It is a criminal offence for an adult to have sexual intercourse with a minor whom he has adopted, or whom is his step-child, foster child, dependant etc. If the child is under fourteen years of age, the adult may be imprisoned for life. If the minor is fourteen years of age or older, the adult may be imprisoned for ten 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 encourage or allow children to be on their premises for purposes of having sexual intercourse with a person or for engaging in certain sexual activities. If the child which is allowed on the premises for such purposes is under fourteen years of age, the penalty is imprisonment for life. If the child is between fourteen and sixteen years old, the penalty is imprisonment for ten years.

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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 is associated with abnormally aggressive or seriously irresponsible conduct.

A person who knows or has reason to believe that an individual is mentally subnormal and nevertheless has sexual intercourse with that person commits a criminal offence. That person may be imprisoned for ten years. To institute proceedings for this offence, the consent of the Director of Public Prosecutions must be obtained.

C. HELP FOR SURVIVORS

I.GETTING HELP UNDER THE DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1992

Where do I apply for an order?

You should make an application for a protection 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.

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How does the law define domestic violence?

The domestic violence legislation does not provide a definition for domestic violence. It is evident however from the language of the legislation that violence which causes physical or mental injury amounts to domestic violence. Being slapped, choked, being hit with a fist or other object, being kicked, threatened with knives and other weapons, being forced to engage in sexual activities are all acts which amount to domestic violence.

The domestic violence legislation further protects against harassment and against conduct which is capable of constituting a criminal offence. If you are being intimidated by persistent verbal abuse or by threats of physical violence, persistently followed from place to place or if the person maliciously destroys your property, these are all acts which amount to harassment and the domestic violence legislation can help you to put an end to it.

What types of orders and protection can I get?

The order which is available is a protection order. The protection order is an order from the court. It prohibits abuse and molestation and can exclude the abusive person from the home or workplace. It can give the applicant the right to occupy the home. The protection order may also prohibit the abusive person from taking away or destroying the applicant’s property or from taking away or destroying property which the applicant or other members of the household need, even if that property belongs to the abusive person.

The court may also make an order which provides for the use of furniture and household effects, payment of rent, mortgage, utilities etc.,

Obligatory counselling where protection order made

If the court makes a protection order, it must also direct that both you and the abusive person (and the child if the matter involves a child) receive appropriate professional counselling and therapy from a specified agency. This agency has an obligation to provide a written report to the court which should detail the dates of counselling, nature of the counselling and therapy carried out and also the response of the parties to the counselling and therapy.

What must I prove to get the order?

Firstly, you must first establish that you qualify to seek relief under the Domestic Violence (Protection Orders) Act 1992. 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 living together with the abusive person in the same household as husband and wife although not married to each other

• you were living together with the abusive person in the same household as husband and wife although not married to each other

• 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 is capable of constituting a criminal offence or has engaged in conduct which amounts to harassment.

What factors will the magistrate take into account in deciding whether to grant the order?

In making a decision about your application for a protection order the court will have regard to certain matters. Of primary importance are:

• the need to ensure that persons are protected from violence and harassment; and
• the welfare of any child who is a member of the abusive person’s household.

The court may further consider:

• the need to preserve and protect the institution of marriage or a union other than marriage and to give protection and assistance to the family as a natural and fundamental group unit of society;
• the accommodation needs of the members of the household;
• any hardship that will be caused to the abusive person or to any other person as a result of the making of the order; and
• any other matter that in the circumstances of the case, the court considers relevant.

The court will also take into account yours as well as the abusive person’s property, income and financial resources and financial obligations when making certain directions or prohibitions in the protection order.

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How long will the order last?

A protection order may last for twelve months.

Does the protection order affect anyone’s ownership of property?

No. The protection order does not affect a person’s right to ownership of property.

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 protection order commits a criminal offence. That person may be imprisoned for twelve months or fined $5,000.00 or be subject to both such fine and imprisonment.

What powers do the police have under the Act to protect me from domestic violence?

Power of arrest

In Barbados, the power of the police to arrest a person who has breached a protection order does not attach automatically. An application must be made for this to be done and the abusive person must be notified that such an application has been made.

The court may attach a power of arrest to the protection order where these three conditions are satisfied. Firstly, the court must be satisfied that the abusive person against whom the protection order was made has caused actual bodily harm to the person complaining of the abuse or to the child concerned. Secondly, the court must consider that the abusive person is likely to cause actual bodily harm again. Thirdly, the person who applied for the protection order must have also applied for a power of arrest to be attached to the protection order either before or at any time during the hearing of the application for the protection order.

Power of entry upon premises

A police officer has the power to enter upon any premises without a warrant and render assistance if he has reasonable grounds to suspect that a protection order is being violated. A police officer may enter any premises without a warrant where he has reasonable grounds to suspect that a person has suffered physical injury or is in imminent danger of suffering physical injury by another person at the premises.

How will my privacy be protected during the court proceedings?

Information on your application to the court and the court’s decision are not to be published in a newspaper or by broadcast or otherwise disseminated to the public so that the members of the public may readily know your identity or the identity of any other person involved.

How does the law ensure that the rights of the abusive persons 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. The abusive person has the right to appeal the court’s decision with respect to the making of the protection order.

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II.CRIMINAL TRIALS FOR SEXUAL OFFENCES

How will my privacy be protected during the court proceedings?

Certain aspects of the hearing must be heard in camera (in private) such as where the victim is a minor and is giving evidence to the court. The court may also allow an adult victim to give evidence in camera.

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?

Evidence concerning your sexual activity and reputation may be allowed only in very limited circumstances.

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.[1] These rules are known as the common law rules regarding recent complaint.

In Barbados, the judge must make it clear to the jury that an absence or delay in the victim complaining of the offence does not mean that she is lying about the offence taking place. The judge should also tell the jury that the victim may have had good reasons for hesitating to make or refraining from making a complaint about what happened.

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. The sexual offences legislation in Barbados states clearly that corroboration is not required for a person to be convicted of a sexual offence.

[1] P. Murphy, Murphy on Evidence (11^th edn, Oxford University Press 2009) 580

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