- Duty to comply with ratified international human rights conventions
- Duty to comply with the Constitution as the supreme law
- DOMESTIC VIOLENCE ACT 2010
- THE CRIMINAL CODE CAP 1 (1990 Continuous Revised Edition)
- CRIMINAL CODE AMENDMENT ACT 2012
- STATUTORY RULES AND ORDER NO.19 OF 2017 - POLICE STANDING ORDER (AMENDMENT)
WHAT IS THE LEGAL STANDARD SET FOR STATE ACTORS AND LAWMAKERS IN GRENADA IN RELATION TO GENDER-BASED VIOLENCE?
Duty to comply with ratified international human rights conventions
State actors and lawmakers in Grenada have a legal duty to comply with the terms of the international human rights conventions that Grenada has ratified or acceded to. Grenada ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) on August 30th 1990.
Grenada 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 Grenada which help to perpetuate violence against women and girls.
Duty to comply with the Constitution as the supreme law
The Constitution of Grenada (1973) 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.
B. WHAT LAWS ADDRESS GENDER-BASED VIOLENCE?
The laws which address gender-based violence in Grenada are:
• Domestic Violence Act (2010)
• The Criminal Code Cap 1 (1990 Continuous Revised Edition):
• The Criminal Code Amendment Act (2012)
•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, causing harm; 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. The fairly recently reformed Domestic Violence Act of 2010 has also enhanced the protection of victims from domestic violence by adding several features that were not available in the 2001 legislation.
Grenada does not currently have legislation which specifically deals with sexual harassment. However, a draft Bill has been submitted to the government for their review and passage in parliament. The Grenada National Organization of Women (GNOW)
commissioned the drafting of the proposed Sexual Harassment Bill and after holding national consultations it was recommended that “sexual harassment” would be defined as: “the unwanted or unwelcome physical, verbal and non-verbal conduct of a
sexual nature or based on sex, which is offensive to the person being harassed.”
Notably, 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 ACT (2010)
The law governing domestic violence in Grenada is the Domestic Violence Act 2010.. This Act builds on the pre-existing legislative framework and has improved the systemic response to domestic violence. It added to the remedies offered under the 2001 legislation and now allows for:
- A Protection Order that can have a wide range of terms attached to it that prohibit violence and offer protection including committing any further acts of violence; entering the residence of the applicant or the shared household or approaching the applicant within a specified distance. This reformed the earlier legislation which provided for different types of orders, namely Protection, Occupancy and Tenancy Orders. These have now been replaced by one type of Order with the possibility of a broad selection of terms.
- Other orders relating to use of furniture and household effects, payment of rent, mortgage and utilities
- An order for the offender to attend professional counseling or psycho-educational programming. This improved on the 2001 law which could not require persons to attend counseling, it only provided for a recommendation of counseling.
- Broadened categories of persons who can apply for protection from domestic violence to include persons in visiting and dating relationship. The former Act confined its jurisdiction to persons whose unions had involved some period of cohabitation.
- Increased involvement by the Royal Grenada Police Force with some provision for mandatory response to complaints of domestic violence and a new requirement that all reports of domestic violence be formally recorded.
II. THE CRIMINAL CODE CAP 1 (1990 Continuous Revised Edition):
Under the Criminal Code, acts of domestic violence and sexual offences are addressed. Whereas the Domestic Violence Act focuses on protection of the victim, the Criminal Code is geared more so at holding perpetrators of violence accountable for their unlawful conduct. The two (2) pieces of legislation are intended to be in used conjunction, with a clear understanding that protections proceedings should not be commenced in lieu of a criminal investigation and pursuit of criminal charges.
In relation to domestic violence, there are a range of offences that can be of a domestic nature and can result in criminal charges. These offences include:
- Threatening death
- Causing harm
- Attempt murder
As it relates to sexual offences, offences that are recognized include:
- Indecent assault
- Sexual offences in relation to children
- Sexual offences in relation to persons with mental impairment
The Criminal Code was recently amended in Grenada and several welcomed amendments were made with respect to sexual offences.
III. Criminal Code Amendment Act (2012)
The recent amendments to the Criminal code have gone a long way in creating several deficiencies in the law that seriously compromised the safety and well being of particularly women and girls. The gaps in the law included the non recognition of marital rape; gender specificity in relation to several offences; unnecessary limitation periods on some offences and retention of the honest belief defense.
With the passage of the new law in 2012, the following progress was achieved in the advocacy work to combat gender based violence:
- Wider definition of rape and recognition of marital rape;
- Sexual abuse of minors includes boys under 16;
- Increases penalties for crimes for sexual offences, such as rape and sexual intercourse with a minor;
- Speeds up access to justice by introducing summary offences for crimes such as assault;
- Removes the statute of limitation in regard to reporting incidents of sexual intercourse with a minor.
- Removes the “honest belief” defence in cases of sexual intercourse with a minor, which had allowed perpetrators to claim that they had reason to believe that the child was above the age of consent at the time of the incident.
The Criminal Code Amendment Act defines rape as where a person intentionally and unlawfully commits an act which causes penetration with his or her genital organs, of another person. Critical to the offence of rape is the issue of consent and the new provision states that the offence is committed if the other person does not consent to the penetration; or he or she does not believe that the other person consents to such penetration or is reckless as to whether the other person consents or not.
This new definition of rape is therefore gender neutral and does contemplate that a man could be a victim of rape.
The penalty for rape is thirty (30) years imprisonment.
Rape by a husband
Whereas the preexisting law did not recognize that a man could rape his wife, the current law expressly includes wives. However, the penalty for rape of a spouse is a maximum of fourteen (14) years.
The new offence of sexual assault was created. Although the actual definition of rape was not itself broadened to include equally invasive and traumatic acts, this offence was created to take account of those types of circumstances.
Accordingly, sexual assault takes into account penetration of the genital organs (which is defined under the Act to include the anus) with a foreign object and is punishable by up to fourteen (14) 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, although this is not how it is legally defined in Grenada or most of the Caribbean countries.
In Grenada, the new Criminal Code amendments removed the offence of defilement of a female and now recognize that sex with any minor under the age of 16, whether a boy or a girl is unlawful.
There are stringent penalties for offences against children, especially where the child is under thirteen (13) years of age. Sex with a child under the age of thirteen in Grenada is punishable by up to thirty (30) years imprisonment. For a child under the age of 16, the penalty has been increased to up to fifteen (15) years.
The most recent law reform has also placed stringent conditions on the applicability of the honest belief defense and provides that only defendants 19 years of age or younger can rely on this defense and they must not have ever been charged with a similar offence in the past.
Incest by both males and females is prohibited at law with more severe penalties being applied in situations where the victim is a child. Sexual intercourse between daughter/son, granddaughter/grandson, sister/brother, aunt/uncle or niece/nephew is prohibited. Sexual intercourse with a step-child, foster-child, ward or dependant is also deemed unlawful in certain defined circumstances.
A new and very helpful provision is that which speaks to the introduction of mandatory reporting of suspected abuse of a child. This new section in the Criminal Code Amendment Act requires that:
“any person who is the parent or guardian of a child or has the actual custody, charge or control of a child; and who has reasonable grounds for believing that a sexual offence has been committed in respect of a child, shall report the grounds for his belief to a police officer as soon as reasonably practicable.”
Failure to comply with this legal obligation can result in a fine of up to $15,000 or a period of imprisonment of up to 7 years or both.
This provision, when combined with the new mandatory provision under the civil Child Protection Act (2010) provides a new and refreshing layer of protection that was not previously available to children who were being physically and sexually abused.
Sexual offences in relation to persons with mental impairment
Persons who are mentally subnormal are in special need of protection. Unfortunately, even the more modern legislative framework in Grenada still refers to this category of person as “an imbecile”. This is outdated and offensive language but has been retained. The Act provides that:
“A person who has sexual intercourse with an imbecile, whether with or without the consent of the imbecile, under circumstances which do not amount to rape, commits an offence and is liable on conviction on indictment to a term of imprisonment not exceeding five years.”
C. HELP FOR SURVIVORS
I. GETTING HELP UNDER THE DOMESTIC VIOLENCE ACT (2010)
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. The court clerks were trained by the Ministry of Social Development and the Legal Aid and Counseling Clinic to assist persons with preparation of applications for orders. Should additional assistance be required, the Legal Aid and Counseling Clinic can provide support.
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 controlling or abusive behaviour that harms the health, safety or well-being of a person or any child, and includes but is not limited to the following:
(a) physical abuse or threats of physical abuse
(b) sexual abuse or threats of sexual abuse;
(c) emotional, verbal or psychological abuse;
(d) economic abuse;
(h) damage to or destruction of property; or
(i) entry into the applicant's residence without consent, where the parties do not share the same residence
What types of orders and protection can I get?
There is one main type of Order available and that is called a Protection Order. That order can have a number of conditions or terms attached to it that provide a wide range of relief.
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.
Other terms to the Court Order can exclude the person who is abusing you from the household, even it is a shared household or owned by that person. However, it is important to note that a protection order does not transfer ownership of property, it only entitles someone to have exclusive possession of the property for a defined period of time.
The Order can also require you or the abusive person to enter into a counseling program. There are counseling and pscho-educational program available through the Legal Aid and Counseling Clinic, as well as the Ministry of Social Development. It is important to note that counseling is offered separately so as to ensure that it addresses the violence and is not focused on partner reconciliation.
The person who has been abusive may also be required, amongst other things, to do any of the following:
- return to the applicant, specified property that is in his or her possession or under his or her control;
- pay emergency monetary relief to the applicant
- pay interim monetary relief to the applicant for the benefit of a child or dependant, where there is no existing order relating to maintenance, until such time as an obligation for support is determined, pursuant to any other law.
What must I prove to get the order?
Firstly, you must first establish that you qualify to seek relief under the Domestic Violence Act 2010. In order to qualify you must fall into at least one of the following categories:
- You are the spouse of the abusive person
- You are a member of the household
- You are a child
- You are a dependent
- You have a child with the abusive person
- You are in a dating or visiting relationship with the abusive person.
It is important to note that the law of Grenada does not recognize relationships between persons of the same sex and so the Act specifically states that the persons in the relationship must be persons “of the opposite sex”.
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. Where you are seeking exclusive possession of the household, the Court will also consider what is in the best interests of the children.
How long will the orders last?
These orders are not permanent. The new Act that was passed in 2010 now stipulates that a Protection Order cannot exceed three (3) years in duration. Any of the parties to the proceedings can apply to the court for the order to be discharged at any time.
Do these orders affect anyone’s ownership of property?
No. As previously stated, 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 depends on whether the person has breached the order previously or whether it is a first time occurrence. First time offenders can be fined up to five thousand dollars, or serve a period of imprisonment not exceeding eighteen months. On a second breach, the fine goes up to a sum not exceeding ten thousand dollars, or to a term of imprisonment not exceeding two years, or both. Any subsequent breach can result in a period of imprisonment not exceeding five years.
What powers do the police have under the Act to protect me from domestic violence?
Powers of arrest
A police officer may arrest any person at the scene of an incident of domestic violence,
without a warrant, whom he or she reasonably suspects of having committed an act of domestic violence.
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.
Duty to inform victim of rights.
A police officer, at the scene of an incident of domestic violence, or when the incident of domestic violence is reported is required to inform the victim of his or her rights and provide the victim with a printed copy of the information relating to those rights. Upon the report of a breach of a protection order to a police officer, by a person or a victim, the police officer shall inform the victim, of the right to lodge a complaint against the abuser.
The new Domestic Violence Act requires that a police officer shall respond to every complaint or report alleging domestic violence. The police area also obligated to complete a domestic violence report, which will form part of a Domestic Violence Register that is to be kept by the police.
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 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 counselors 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?
The magistrate or judge should hear certain matters in camera (private). For example, where the matter involves children, or where the offences concerned are rape, sexual intercourse with persons under sixteen years of age, indecent assault, sodomy or incest. Further, there should be no written publication or broadcast available to the public which may lead members of the public to identify the victim.
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 because it is deemed sufficiently relevant. 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.
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. Grenada 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