Dominica
- 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?
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A. WHAT IS THE LEGAL STANDARD SET FOR STATE ACTORS AND LAWMAKERS IN DOMINICA IN RELATION TO GENDER-BASED VIOLENCE?
Duty to comply with ratified international human rights conventions
State actors and lawmakers in Dominica have a legal duty to comply with the terms of the international human rights conventions that Dominica has ratified or acceded to. Dominica is a State Party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979 and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women 1994.
Dominica 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 Dominica which help to perpetuate violence against women and girls.
Duty to comply with the Constitution as the supreme law
The Constitution of Dominica 1978 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 Dominica are:
• Protection Against Domestic Violence Act 2001
• Sexual Offences Act 1998
• Offences against the Person Act Chap 10:31 “1990 Rev”
• 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.
Dominica 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. PROTECTION AGAINST DOMESTIC VIOLENCE ACT 2001
The law governing domestic violence in Dominica is the Protection against Domestic Violence Act 2001. This Act creates a wide range of speedy and effective remedies which are aimed at reducing the incidences of domestic violence. A magistrate or judge 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 counselling, the use of furniture and household effects, payment of rent, mortgage, utilities etc.
----------------------------------------------------------------------II. SEXUAL OFFENCES ACT 1998
The Sexual Offences Act 1998 governs sexual offences in Dominica. 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 1998 include:
• Rape
• Buggery
- Indecency between a woman and a girl
• Gross indecency
• Indecent assault
• Unlawful sexual connection
- Incest
• Sex trafficking/procuration
• Sexual offences in relation to children
• Sexual offences in relation to persons with mental impairment
OFFENCES
----------------------------------------------------------------------RAPE
Under the Sexual Offences Act, the offence of rape is gender-neutral. Both men and women are protected from the offence of rape. Rape is defined as where any person has sexual intercourse with another person without that person’s consent, without believing that that person consents or is reckless as to whether the other person consents to sexual intercourse.
If a person agrees to have sexual intercourse with another person because he or she is beaten, threatened with violence, misled as to the nature of the act, is drugged, etc., in such circumstances would be no consent. Having sexual intercourse in these circumstances is considered rape.
The penalty for rape is imprisonment for twenty-five years.
----------------------------------------------------------------------Marital rape
Persons who are married may be prosecuted for the offence of rape in limited circumstances. There must be in relation to the husband and the wife any of the following:
• a decree nisi of divorce;
• a decree of judicial separation under the Civil Code;
• a separation agreement; or
• an order for one party not to molest or have sexual intercourse with the other.
The penalty for a husband or wife who commits the offence of rape upon the other is imprisonment for fourteen years.
----------------------------------------------------------------------Unlawful sexual connection
Sexual connection is where a person puts any part of his body in a person’s vagina or a person’s anus, or where he puts an object (where it is not forbona fide medical purposes) into a person’s vagina or a person’s anus. Sexual connection is also where a person puts his mouth or tongue on any part of a person’s genitalia.
These acts are recognized as unlawful when they are done without a person’s consent. If a person agrees to any of these acts because of violence, threat of violence, impersonation of one’s spouse, false representation as to the nature of the act or because of a person’s authority over him or her, then this is not recognized as consent. There would not have been any consent to the act and it would be deemed unlawful sexual connection.
A person who is under sixteen years of age cannot in law consent to sexual connection. It is therefore a criminal offence to engage in oral sex with a child under sixteen years of age or to manipulate an object in that child’s vagina or anus.
Penalty for unlawful sexual connection
There are different penalties for the offence of unlawful sexual connection. Where a person puts an object into a person’s vagina or anus (where doing so is not for bona fide medical purposes), the penalty is imprisonment for twenty-five years. For all other acts which amount to an unlawful sexual connection, the penalty is imprisonment for fourteen years.
Defence
If a person who is under twenty one years of age is charged with the offence of unlawful sexual connection upon a child who between fourteen and sixteen years of age, that person has a defence if he can prove that the child consented to the acts and that he had reasonable cause to believe and actually did believe that the child was sixteen years of age or more.
If the child was under fourteen years of age, there is no defence.
----------------------------------------------------------------------Unlawful sexual connection within marriage
Within marriage, conduct which would normally amount to unlawful sexual connection will only be recognized as a criminal offence where there is:
• a decree nisi of divorce;
• a decree of judicial separation;
• a separation agreement; or
• an order for one party not to molest or have sexual intercourse with the other
The penalty for unlawful sexual connection where one party to a marriage commits the offence against the other is imprisonment for twenty-five years where one put an object (where doing so is not for bona fide medical purposes), in the other’s anus, or where the husband put an object in the wife’s vagina. For all other acts which amount to an unlawful sexual connection, the penalty is imprisonment for fourteen years.
----------------------------------------------------------------------Inducing sexual intercourse or sexual connection by force, duress etc
It is a criminal offence for anyone to induce another person to have sexual intercourse or to have unlawful sexual connection with a person, by force, duress, false and fraudulent representation as to the nature of the act, administration of drugs etc.. The penalty for this offence is imprisonment for fourteen years.
Incest
Incest is when a parent/child, brother/sister (of full or half blood or through wedlock), uncle/niece, aunt/nephew or grandparent/grandchild engaged in sexual intercourse of sexual connection. It is only a criminal offence where the person charged knows of the relationship between the parties.
It is no defence that the other party consented to the sexual intercourse. However it is a defence is the person charged was under restraint, duress or fear of the person with whom the person charged had sexual intercourse or sexual connection.
Upon conviction a person is liable to 25 years imprisonment of committed by an adult against a person under 14, 10 years if committed by an adult against a person aged 14 or more and 2 years if committed between minors.
Gross indecency
Gross indecency is defined as an act other than sexual intercourse by a person involving the use of genital organs for the purpose of arousing or gratifying sexual desire. The penalty for this offence is imprisonment for five years. When such acts are done in a private place by an adult male and an adult female, both of whom who consent to the act, it is not considered an offence. There is no consent however, where one adult person agrees to the act because of violence, threat of violence, administration of drug, or false and fraudulent representation as to the nature of the act.
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Indecent assault
Indecent assault means an assault which is accompanied by words or circumstances indicating an indecent intention. It is a criminal offence. The penalty for this offence largely depends on the age of victim.
- If the offence is committed on a minor who is under the age of fourteen years, the penalty is imprisonment for ten years.
- If the offence is committed on a minor who is of fourteen years of age or more but who is still under the age of sixteen years, that person may be imprisoned for seven years.
- If the offence is committed on a person who is sixteen years of age or more, the penalty is imprisonment for five years.
Buggery
Buggery is defined as sexual intercourse per anum by a male person with a male person or by a male person with a female person. In other words, buggery is anal sex between males or between a male and a female.
If buggery is committed by an adult on a minor, the penalty is imprisonment for twenty-five years. If it is committed between adults, the penalty is imprisonment for ten years. If buggery is committed by a child, the penalty is imprisonment for five years. Where a child commits buggery, the court may make a probation order instead of sentencing the child to a term of imprisonment. Children who are under sixteen years of age will however not be sentenced to imprisonment.
Attempt to commit buggery
It is also a criminal offence for a person to attempt buggery. Anyone who does this is guilty of an assault with intent to commit buggery and may be imprisoned for four years.
Treatment
A person who is convicted of any of the buggery offences may be ordered by the court to be admitted to a psychiatric hospital for treatment.
Indecency between a woman and a girl
An adult woman who does an indecent act upon a girl under the age of 16 or induces or allows a girl under 16 to commit an indecent act with or upon her is guilty of an offence and may be imprisoned to 7 years upon conviction. The girl under 16 is not guilty of an offence and it no defence that the girl under 16 consented to the indecent act.
----------------------------------------------------------------------Procuration/sex trafficking
A person who procures a person who is under the age of eighteen years of age to have sexual intercourse or conspires with someone else for a minor to have sexual intercourse commits a criminal offence. The penalty for this offence is imprisonment for twenty-five years.
Procuring a person to become a prostitute or to become an inmate in a brothel is also an offence. Anyone who does this may be imprisoned for fourteen years.
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Sexual Intercourse with a person under 14
It is an offence to have sexual intercourse with a person under 14 who is not the spouse of the first mentioned person. This offence is punishable by 25 years imprisonment.Sexual intercourse with a person between the ages of 14 and 16
A person who has sexual intercourse with a person between the ages of 14 and 16 who is not the first mentioned person’s spouse is an offence punishable by 14 years imprisonment. It is defence for a person charged who was 21 years or under at the time of the commission of the offence that the person between 14 and 16 gave consent and that the person charged honestly believed the person to be older than 16.
Consent is not recognized where it was obtained by false of fraudulent representations as to the nature of the act
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Sexual intercourse with an adopted minor
Sexual intercourse with a person who is one’s adopted child, step child, foster child, ward or dependant or a member of the adult’s household or under that adult’s care and protection is an offence. Consent is not a defence. However, if the minor is the spouse of the adult no offence would be committed.
This offence is punishable upon conviction to 25 years if committed against a minor under 14 and 10 years if committed against a minor 14 years of age or older.
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Sexual Intercourse with a minor employee
It is an offence for an adult to have sexual intercourse with a minor where the minor is employed by an adult or is in a common but not similar employment with the adult and the minor is subject to the adults direction or supervision or the minor receives wages or a salary directly or indirectly from the adult.
An adult who commits this offence is liable to 25 years imprisonment. However, it is not an offence where the minor is between the ages of 16 and 18 and gives consent or where the minor is the spouse of the adult.
----------------------------------------------------------------------Sexual offences in relation to persons with mental impairment
Sexual intercourse with person suffering from mental disorder
Persons who suffer from mental disorders are in special need for protection. It is a criminal offence for anyone to have sexual intercourse with a person whom he knows (or has good reason to believe) is suffering from a mental disorder where that person is not one’s husband or wife. Anyone who does this may be imprisoned for ten years.
Gross indecency
A person who has a mental disorder cannot in law consent to an act of gross indecency. If someone commits an act of gross indecency with someone whom he knows to or suspects to have a mental disorder, he commits a criminal offence and may be imprisoned for five years.
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C. HELP FOR SURVIVORS
I. GETTING HELP UNDER THE PROTECTION AGAINST DOMESTIC VIOLENCE ACT 2001
----------------------------------------------------------------------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, Family Court or the High 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?
Domestic violence includes physical, sexual, emotional or psychological or financial abuse committed by a person against a spouse, child, any other person who is a member of the household, dependant or parent of a child of that 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, 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
The court may 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 Protection against Domestic Violence Act 2001. 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 with the abusive person as husband and wife in the same household although not married to each other
• you are in a visiting relationship with the abusive person (This is a non – habitual relationship which is otherwise similar to the relationship between husband and wife)
• 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 court take into account in deciding whether to grant the order?
If you are applying for a protection order, the court 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 court 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?
Yes. You can get financial support and you can also receive compensation for injuries suffered from the violence. With respect to compensation, you may receive up to $10,000.00 for loss of earnings; medical and dental expenses; moving and accommodation expenses and reasonable legal costs
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 court may grant an order for your protection even though notice is not given to the abusive person. The court may do this where it is satisfied that the delay may cause risk to your personal safety or serious injury or undue hardship.
The order which the court 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, occupation order or the tenancy order is breached?
A person who breaches a protection order or an interim order, an occupation order or a tenancy order commits a criminal offence. On a first conviction for the offence, the penalty is imprisonment for three months or a fine of $9,000.00. On a second conviction, the penalty is imprisonment for twenty four months or a fine of $15,000.00 or both such fine and imprisonment. On a third conviction or any subsequent conviction, the penalty is imprisonment for a period of not less than twenty four months but not more than five years.
----------------------------------------------------------------------What powers do the police have under the Act to protect me from domestic violence?
Power of arrest where an order is in force
A police officer is given the power to detain and arrest without a warrant anyone whom he believes on reasonable grounds, has committed a breach of an order. The police officer must be satisfied that the arrest is reasonably necessary for the protection of the person on whose behalf the order was made. The legislation 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;
• the restraining effect of other persons or circumstances on the person suspected of committing a breach;
• the need for a cooling-off period.
Arrest for breaching conditions of bail
The police officer may arrest without a warrant any person whom he has reasonable grounds to suspect has failed to comply with conditions of his bail.
----------------------------------------------------------------------Power of entry upon premises
Entering premises with warrant
If a police officer has reasonable grounds to suspect that someone on premises has suffered physical injury due to domestic violence or is in imminent danger of such injury, he may attempt to enter the premises to render assistance to the injured person. If however the police officer is prevented from entering the premises, he may receive a warrant from a Magistrate authorizing him to enter the premises and take such action as is necessary to prevent the commission of or repetition of conduct which amount to domestic violence.
Entering premises without warrant
A police officer may enter any premises without a warrant where he has reasonable cause to believe that a person is engaging or attempting to engage in conduct which amounts to physical violence and failure to act immediately may result in serious physical injury or death. The police may further search the premises and arrest the person suspected of engaging in such conduct. .
Where the police officer exercises this power of entry he must immediately submit a written report to the Commission or Police, through the Head of the Division where the incident occurred. The report must include:
• the reasons for entering the premises without a warrant;
• the offence being committed or about to be committed; and
• the manner in which the investigation was conducted and the measures taken to ensure the protection and safety of the person at risk.
The Commissioner of Police must submit the report to the Director of Public Prosecutions within seven days of receiving it.
----------------------------------------------------------------------What duties are placed on the police under the Act?
Duty to respond to complaint of domestic violence
The legislation places a duty on police officers to respond to every complaint or report which alleges domestic violence. It does not matter if the person who makes the complaint is the victim. The police must respond. After responding to a domestic violence complaint, the police officer must complete a Domestic Violence Report. This report will form a part of the National Domestic Violence Register which is to be maintained by the Commissioner of Police.
This domestic violence report which is to be completed by the police officer must include:
• the name of the parties
• the relationship and sex of the parties
• information relating to the history of domestic violence between the parties
• the date and time the complain was received
• the type of abuse and the weapon used, if any
Duty to render assistance
Upon entering any premises to render assistance to a victim of domestic violence, the police officer has a duty to:
a) give assistance to a person who has suffered injury;
b) ensure the welfare and safety of a child dependant or other vulnerable persons who may be on the premises; and
c) prevent any further breach of the law.
----------------------------------------------------------------------How will my privacy be protected during the court 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 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 court 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 court’s decision concerning the making of an order or the refusal to make an order.
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II. CRIMINAL TRIALS FOR SEXUAL OFFENCES
----------------------------------------------------------------------Is there any provision to protect the privacy of a survivor of sexual violence?
For certain sexual offences, the public must be excluded from the hearing. The judge may permit only certain persons to be present. Sentencing of the convicted person however is to be done in public.
Further, the court may forbid the publication of reports which give details of the offences alleged to have been committed against a person. Breach of an order of the court not to publish such details may be dealt with as contempt of Court.
The identities of the persons involved in a sexual offence case are also to be protected. The sexual offences legislation forbids publication of reports 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 fined $50,000.00 and imprisoned for three years.
----------------------------------------------------------------------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.[1] These rules are known as the common law rules regarding recent complaint.
The sexual offences legislation provides guidance to judges with respect to recent complaint. If during the trial, it is suggested that a person who says she is a victim of a sexual offence did not tell anyone about it or delayed in telling someone about it, sexual offences legislation states expressly what the judge should tell the jury. The judge must give the jury a warning that the fact that the person who says that an offence was committed against her did not make a complaint or delayed in making one does not mean that she is lying. The judge must further inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making or may refrain from making a complaint about the assault.
----------------------------------------------------------------------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 corroboration warning is no longer required in Dominica. Section 28 of the Sexual Offences Act makes it clear that the judge must not give such instructions. Rather the judge may tell the jury that:
“Testimony which you believe, given by one witness, is sufficient for the proof of any fact. However, before finding any fact to be proved solely by the testimony of a single witness, you should carefully review all the testimony upon which the proof of the fact depends.”
GO BACK TO TOP OF PAGE[1] P. Murphy, Murphy on Evidence (11th edn, Oxford University Press 2009) 580
[2] P. Murphy, Murphy on Evidence (11th edn, Oxford University Press, 2009) 635
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