British Virgin Islands
- 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?
----------------------------------------------------------------A. WHAT IS THE LEGAL STANDARD SET FOR STATE ACTORS AND LAWMAKERS IN THE BRITISH VIRGIN ISLANDS IN RELATION TO GENDER-BASED VIOLENCE?
Duty to comply with ratified international human rights conventions
State actors and lawmakers in The British Virgin Islands have a legal duty to comply with the terms of the international human rights conventions to which it is a State Party. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979 has been extended to The British Virgin Islands.[1]
The British Virgin Islands therefore 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 The British Virgin Islands which help to perpetuate violence against women and girls.
Duty to comply with the Constitution as the supreme law
The Constitution of The British Virgin Islands 1976 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 The British Virgin Islands are:
• Domestic Violence (Summary Proceedings) Act 1996
• Criminal Code 1997 which has subsequently been amended in 2002, 2005, 2006 and 2007.
• Anti-Discrimination Act 2001and
• 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 Criminal Code 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.
----------------------------------------------------------------------I. DOMESTIC VIOLENCE (SUMMARY PROCEEDINGS) ACT 1996
The law governing domestic violence in The British Virgin Islands is the Domestic Violence (Summary Proceedings) Act 1996. 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
----------------------------------------------------------------------I. CRIMINAL CODE 1997
The Criminal Code 1997 governs sexual offences in The British Virgin Islands. Not all offences under the Criminal Code 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 Criminal Code 1997 include:
• Rape
• Indecent assault
• Sex trafficking/procuration
• Sexual offences in relation to children
• Sexual offences in relation to persons with mental impairment
OFFENCES
A man commits rape if he has unlawful sexual intercourse with a woman without her consent and at the time he knows that she did not consent or was reckless as to whether she consents to sexual intercourse. If a woman agrees to have sexual intercourse with another person because she is beaten, threatened with violence, misled as to the nature of the act etc., in such situations there would be no consent. Having sexual intercourse in these circumstances is considered rape.
The penalty for rape is imprisonment for life.
----------------------------------------------------------------------Sexual Assault
Where a husband has sexual intercourse with his wife without her consent by force or fear, it is called “sexual assault” not rape. A husband may be prosecuted for sexual assault only in certain circumstances. These circumstances are where there is in existence between the husband and the wife any of the following:
• a decree nisi of divorce
• a decree of judicial separation
• a separation agreement
• a protection under made under the Domestic Violence (Summary Proceedings) Act 1996
• any other order for the husband not to molest his wife or have sexual intercourse with her
Prosecution of a husband for sexually assaulting his wife can be instituted only by or with the consent of the Attorney General.
The penalty for sexual assault by a husband upon his wife is imprisonment for ten years.
----------------------------------------------------------------------Indecent assault
A person who commits the offence of indecent assault may be imprisoned for five years on summary conviction. If the person is convicted on indictment, that person may be imprisoned for seven years. If the indecent assault is committed on a child who is under thirteen years of age, the penalty in imprisonment for ten years.
----------------------------------------------------------------------Procuration
It is a criminal offence to cause to procure or attempt to procure a woman to become a prostitute or to become an inmate of a brothel. Any person who does this may be imprisoned for three 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.
----------------------------------------------------------------------Sexual intercourse with girls under sixteen years of age
The penalty for having sexual intercourse with a girl who is under thirteen years of age is imprisonment for fourteen years.
The penalty for having sexual intercourse with a girl who has attained the age of thirteen years but is not yet sixteen years old is imprisonment for seven years. If the man was under twenty one years old when he had unlawful sexual intercourse with the girl he has a defence to the charge if at the time he believed that the girl was sixteen years of age or older and had reasonable cause for that belief.
----------------------------------------------------------------------Causing or encouraging a girl to engage in sexual activities
It is a criminal offence for a person who is responsible for a girl to cause or encourage sexual intercourse with her. It is also a criminal offence to cause an act of indecent assault to be committed upon her or for her to be engaged in prostitution. The penalty for each of these offences is imprisonment for five years.
Acts of gross indecency against children
It is a criminal offence for any person to commit an act of gross indecency with a child who is under the age of fourteen years. It is also a criminal offence for a person to incite a child under fourteen years of age to commit an act of gross indecency. The penalty for each of these offences is imprisonment for three years or a fine of $3,000.00 or both such fine and imprisonment.
----------------------------------------------------------------------Sexual offences in relation to persons with mental impairment
Sexual intercourse with persons suffering from mental disorders
Persons who suffer from mental disorders are in special need of protection. A woman who suffers from a mental disorder is described as a mental defective. The Code defines “a mental defective” as
a woman who has been ordered to be detained under the provisions of the Mental Health Ordinance or who is shown by the evidence of two medical practitioners to be suffering from mental disorder, psychopathic disorder or subnormality.
Having sexual intercourse with a woman who is a mental defective (where that woman is not one’s wife) is a criminal offence. The penalty for this offence is imprisonment for seven years. If however the man did not know or had no reason to suspect that the woman was a mental defective, he will not be convicted.
Indecent assault upon a woman suffering from a mental disorder
If anyone commits an act of indecent assault against a woman whom he knows (or had reason to know) is a lunatic, mental defective or one who is receiving treatment for mental or psychopathic disorder, that person may be imprisoned for a maximum term of seven years. Such women cannot in law give consent which would prevent an act from amounting to one of indecent assault.
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III. THE ANTI-DISCRIMINATION ACT 2004
The Anti-Discrimination Act does not expressly mention sexual harassment. The Act identifies (i) racial discrimination; and (ii) discrimination by victimization, as the types of discrimination to which the Act applies. Sexual harassment could fall under the second ground of discrimination, discrimination by victimization.
Discrimination by victimization
The definition for “discrimination by victimization” is relatively broad. Discrimination by victimization is where a person treats another person (the person victimized) less favourably than he would treat other persons in the circumstances and does this so that the victimized person has participated or intends to participate in proceedings against him.
Discrimination in employment
The Act expressly prohibits discrimination in employment as well as in educational establishments. With respect to employment, it is unlawful for a person to discriminate against someone as regards selection of the person for the job, in the terms of offer of employment or by refusing to offer employment. Where the person is already employed, it is unlawful for an employer to discriminate against person in the terms of the employment, access to opportunities for promotion etc.
Educational establishments
With respect to educational establishments, it is unlawful for the proprietor, principal or other head or governing body of the establishment to discriminate against a person in the terms of offer of admission to the establishment, by refusing or deliberately omitting a person’s application for admission. It is also unlawful for such persons in authority to discriminate against a student of the establishment as regards access to benefits, facilities or services or by excluding the student from the establishment.
----------------------------------------------------------------------Remedies
A person who has been unlawfully discriminated against may receive damages and may further be compensated for injury to feelings.
----------------------------------------------------------------------
C. HELP FOR SURVIVORS
----------------------------------------------------------------------I. GETTING HELP UNDER THE DOMESTIC VIOLENCE (SUMMARY PROCEEDINGS) ACT 1996
----------------------------------------------------------------------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.
Protection 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.
Occupation order
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.
Tenancy order
A tenancy order vests you with the tenancy of the dwelling house which you and the abusive persons reside or hold together as tenants.
Additional Orders
• 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
When the court makes a protection order, it must also recommend that you, 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 1996. 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 live or have lived together with the abusive person 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 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.
----------------------------------------------------------------------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 $5,000.00 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 a protection order. The police officer must be satisfied that the arrest is reasonably necessary for the protection of the person on whose behalf the protection order was made. Before a police makes an arrest in this regard, he should consider:
• 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 someone for the protection of a person who is being subjected to 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.
----------------------------------------------------------------------How will my privacy be protected during the court proceedings?
The court can hear 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.
----------------------------------------------------------------------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 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.
GO BACK TO TOP OF PAGE[1] Committee on the Elimination of Discrimination against Women, Information provided by the Government of the United Kingdom of Great Britain and Northern Ireland under the follow-up procedure to the concluding observations of the Committee, CEDAW/C/UK/CO/6/Add.1, November 2009
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