WHAT IS THE LEGAL STANDARD SET FOR STATE ACTORS AND LAWMAKERS IN SAINT KITTS - NEVIS 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 ACT 2000
• Offences against the Person Act Cap 4.21 "2002 Rev" and the Criminal Law Amendment Act Cap. 4.05 "2002 Rev"

HELP FOR SURVIVORS

• GETTING HELP UNDER THE DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1996
• CRIMINAL TRIALS FOR SEXUAL OFFENCES

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

Duty to comply with ratified international human rights conventions

State actors and lawmakers in Saint Kitts - Nevis have a legal duty to comply with the terms of the international human rights conventions that Saint Kitts – Nevis has ratified or acceded to. Saint Kitts – Nevis acceded to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) on April 25, 1985 and ratified the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women on June 12, 1995.

Saint Kitts-Nevis 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 Saint Kitts – Nevis which help to perpetuate violence against women and girls.

Duty to comply with the Constitution as the supreme law

The Constitution of Saint Kitts - Nevis 1983 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 Saint Kitts – Nevis are:

• The Domestic Violence Act 2000 which has been amended by the Domestic Violence (Amendment) Act 2005

• Offences against the Person Act Cap 4.21 “2002 Rev”

• Criminal Law Amendment Act Cap. 4.05 “2002 Rev” and

• 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.

Saint Kitts-Nevis 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).

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I. DOMESTIC VIOLENCE ACT 2000

The law governing domestic violence in Saint Kitts – Nevis is Domestic Violence Act 2000. 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 or an injunction which prohibits the abusive person from engaging in conduct which amounts to domestic violence

• 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, counselling etc.

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II. Offences against the Person Act Cap 4.21 “2002 Rev” and the Criminal Law Amendment Act Cap. 4.05 “2002 Rev”

The Offences against the Person Act Cap 4.21 “2002 Rev” and the Criminal Law Amendment Act Cap. 4.05 “2002 Rev” govern sexual offences in Saint Kitts-Nevis. 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 law include:

• Rape

• Buggery

• Indecent assault

• Sexual offences in relation to children

• Sexual offences in relation to persons with mental impairment

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OFFENCES

RAPE

The Offences against the Person Act governs the offence of rape. It does not provide a definition of rape. The penalty for rape is life imprisonment.

Indecent Assault

A person who commits an indecent assault upon a woman or a girl may be imprisoned for ten years. The legislation makes it clear that it is no defence for a person charged with this offence to prove that the girl consented to the act of indecency. If an indecent assault is committed upon a man or boy, the maximum penalty is imprisonment for four years.

Buggery

The penalty for buggery is imprisonment for ten years. Attempting to commit buggery is also a criminal offence which carries a maximum penalty of imprisonment for four years.

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Sexual offences in relation to children

A child under sixteen years of age cannot legally consent to sexual intercourse and it is a criminal offence for anyone to have sexual intercourse with or to attempt to have sexual intercourse with a child who has not attained the age of sixteen years. The penalties for offences committed against children under the age of sixteen years tend to differ, there being more stringent penalties for offences committed against girls who are under fourteen years of age.

Apart from the criminal law legislation addressing the issue of abuse against children (including abuse of a sexual nature) new Child Protection legislation was passed to provide an additional layer of protection that was not previously available to children who were being physically and sexually abused. This new Act, was patterned on the model legislation drafted under the OECS Family Law Reform Project. It establishes a comprehensive scheme for all the critical stages of a child protection case, including legal provisions to address reporting and investigation of cases; devising plans of care; seeking legal redress by way of a range of possible orders and providing a selection of helpful interventions. This new law is a civil remedy that focuses on the protection of child victims, as opposed to the criminal law which focuses on the perpetrator’s unlawful conduct.

Sexual intercourse with girl who is under sixteen years of age

Having sexual intercourse with a child who is under sixteen years of age is commonly known as statutory rape. It is a criminal offence for a person to have unlawful sexual intercourse with a girl who is under the age of fourteen years. The penalty for this offence is imprisonment for life. Attempting to have sexual intercourse with a girl who is under fourteen years of age is also a criminal offence. The penalty for this offence is imprisonment for five years. Where the person who attempted to have unlawful sexual intercourse with the girl is under sixteen years of age, the court may sentence him to be whipped instead of sentencing him to a term of imprisonment.

If a person has or attempt to have unlawful sexual intercourse with a girl who is between fourteen and sixteen years of age, he may be imprisoned for five years. A person who is charged with this offence has a sufficient defence if it is proved to the court or the jury that he had reasonable cause to believe that the girl was of or above sixteen years old. Any prosecution for the offence of having or attempting to have unlawful sexual intercourse with a girl who is between fourteen and sixteen years must begin within twelve months after the offence was committed.

Cohabitation with unmarried girl under sixteen years

It is a criminal offence for a man or a boy to cohabit with an unmarried girl who is under sixteen years of age. The penalty for this offence is imprisonment for five years. Even if the man or boy reasonable believed that the girl was over sixteen years of age, this does not provide a defence to the charge and he may be convicted for the offence.

Undue control over unmarried girl under fourteen years

It is a criminal offence for a man to exercise undue control girl of an unmarried girl who is under fourteen years of age. The penalty for this offence is imprisonment for three months.

Sexual intercourse with step child, adopted child etc

It is a criminal offence for a person to have sexual intercourse with his adopted child, step-child, foster-child or ward. If the offence is committed by an adult with a child who is under sixteen years of age, the penalty is imprisonment for life. If the offence is committed by an adult with a person who is sixteen years of age or older, the penalty is imprisonment for ten years.

Abduction of girl with intent to have sexual intercourse

Abducting a girl who is under sixteen years of age with the intent to have unlawful sexual intercourse with her is a criminal offence. The penalty for this offence is imprisonment for ten years. A person who is charged with this offence has a defence if it appears to the court or jury that he had reasonable cause to believe that the girl was sixteen years of age or older.

Legal obligation on owners and occupiers of premises

The obligation to protect girls under sixteen years of age from defilement extends to all owners, occupiers, managers of premises and persons in control of premises. The Criminal Law Amendment Act makes it a criminal offence for such adults to permit girls under sixteen years of age to be on their premises for the purpose of having sexual intercourse with a person. The penalty for this offence is imprisonment for five years.

Sexual offences in relation to persons suffering from mental disorders

Persons who suffer from mental disorders are in special need of protection. It is an offence for a person to have or attempt to have sexual intercourse with a woman or girl who is a “female idiot” or an imbecile. For a person to be guilty of this offence, that person must have had sexual intercourse with the woman or the girl in circumstances which prove that the person knew that the woman or girl was an idiot or imbecile.

C. HELP FOR SURVIVORS

I. GETTING HELP UNDER THE DOMESTIC VIOLENCE ACT 2000

Where do I apply for an order?

You should make an application for a protection order, injunction, 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 domestic violence legislation has a broad definition for domestic violence which covers physical abuse, psychological abuse, sexual abuse and financial abuse.

Different types of abuse

• Physical abuse is defined as any act or omission which causes or which is intended to cause physical injury. It is also any act or omission which causes or which is intended to cause reasonable apprehension of physical injury.
• Sexual abuse includes sexual contact of any kind that is coerced.
• Psychological abuse is defined as a pattern of behaviour of any kind, the purpose of which is to undermine the emotional or mental well-being of a person. Examples of psychological abuse include: persistently intimidating someone by using abusive or threatening language, persistently following a person from place to place etc.
• Financial abuse means a pattern of behaviour of a kind, the purpose of which is to exercise coercive control over or to exploit or limit a person’s access to financial resources so as to ensure financial dependence on another person.

What types of orders and protection can I get?

You can apply for an injunction or a protection order, an occupation order and a 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. The abusive person may also be ordered to provide financial support, for example, continue paying rent etc.

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.

Counselling order

The court can recommend that you or the abusive person or both of you receive counselling.

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What must I prove to get the order?

Firstly, you must first establish that you qualify to seek relief under the Domestic Violence Act 2000. 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 or used to live together with the abusive person (who is of the opposite sex) as man and wife although not legally married

Secondly, you must prove that the abusive person is engaging or is about to engage in domestic violence against 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 or injunction is engaging or is about to engage in domestic violence against you or whether the order or injunction 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.

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What happens if any of the orders are breached?

A person who breaches a protection order or an injunction, occupation order or tenancy order commits a criminal offence. The penalty for breaching an injunction or a protection order 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 injunction or order

A police officer may arrest without a warrant anyone whom he reasonably believes has committed a breach of the injunction or order. The police officer should make this arrest where he believes that the arrest is reasonably necessary for the protection of the person on whose behalf the injunction or 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 and whether there is any further need for a cooling off period;

• the restraining effect of other persons or circumstances on the person suspected of committing a breach;

• the need for a cooling-off period.

Power of arrest for breaching conditions of bail

If a police officer has reasonable grounds for believing that a person has breached any of the conditions of his bail, he may arrest the person without a warrant.

Power of entry

If a police officer is denied entry onto premises for the purpose of helping a person whom he suspected is being injured or who is in imminent danger of further physical injury, he may be authorised by the court by a warrant to enter the premises. After entering the premises, the police officer is authorised to take such actions as are necessary to prevent acts of domestic violence.

What duties are placed on the police under the Act?

Duty to protect victim from further violence

A police officer upon responding to a complaint of domestic violence has a legal duty to take all reasonable measures within his power to protect the victim from further violence. The legislation anticipates likely scenarios he may face upon responding to a complaint of domestic violence and provides some guidance in respect of the police’s response to the situation. Immediately below are the guidelines for the police officers.

Guidelines for Police Officers

• Where the victim indicates that she has suffered injuries though not visible, which require medical assistance, the police officer should assist her in obtaining medical treatment as soon as possible.

• Where the victim of domestic violence expresses concern for her safety, the police officer should assist the victim in getting to a place of safety.

• Where a victim of domestic violence requests the police officer to accompany her to remove her personal belongings from the place where the abusive person lives, the police officer should do so.

• The police officer should advise the victim of domestic violence on the importance of preserving the evidence.

• The police officer should inform the victim as to her rights and of the services which may be available to assist her.

Duty to prepare report

Where a police officer intervenes in an incident of domestic violence, he should prepare a written report relating to the incident. This report should contain: (i) the allegations of the persons involved; (ii) allegations of the witnesses; (iii) the type of investigation conducted; and (iv) how the incident was resolved.

Duty of the police officer who is in charge of the police station

The police officer who is in charge of the police station must ensure that all records of domestic violence are properly compiled so as to facilitate easy reference to data. He should also ensure that confidentiality is maintained with respect to the identity of persons involved in cases of domestic violence.

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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 $5,000.00. 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 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.

II.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 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 imprisoned for two years or fined $5,000.00.

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. [1] 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. Saint Kitts - Nevis should be guided by this development at common law.

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