Saint Lucia
- 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?
- GETTING HELP UNDER THE DOMESTIC VIOLENCE (SUMMARY PROCEEDINGS) ACT
- CRIMINAL TRIALS FOR SEXUAL OFFENCES
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A. WHAT IS THE LEGAL STANDARD SET FOR STATE ACTORS AND LAWMAKERS IN SAINT LUCIA IN RELATION TO GENDER-BASED VIOLENCE?
Duty to comply with ratified international human rights conventions
State actors and lawmakers in Saint Lucia have a legal duty to comply with the terms of the international human rights conventions that Saint Lucia has ratified or acceded to. Saint Lucia acceded to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) on October 8, 1982 and ratified the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women on April 4, 1995.
Saint Lucia 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 Lucia which help to perpetuate violence against women and girls.
Duty to comply with the Constitution as the supreme law
The Constitution of Saint Lucia 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 Saint Lucia are:
• Domestic Violence (Summary Proceedings) Act Chapter 4.04 “2005 Rev”
• Criminal Code Chapter 3.01 “2005 Rev”
• The Equality of Opportunity and Treatment in Employment and Occupation Act 2000
• 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
The law governing domestic violence in Saint Lucia is the Domestic Violence (Summary Proceedings) Act . 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
II. CRIMINAL CODE
The law governing sexual offences in Saint Lucia is the Criminal Code Chapter 3.01 “2005 Rev”. The Criminal Code also has provisions governing stalking and sexual harassment.
Offences recognized under the Criminal Code include:
• Rape
• Unlawful sexual connection
• Indecent assault
• Gross indecency
• Buggery
• Sex trafficking/procuration
• Sexual offences in relation to children
• Sexual offences in relation to persons with mental impairment
OFFENCES
----------------------------------------------------------------------Rape
Rape is a criminal offence which carries a maximum penalty of imprisonment for life. 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. The law governing rape is gender neutral. Both men and women are protected against the offence of rape.
----------------------------------------------------------------------Marital Rape
The Criminal Code recognizes marital rape but only does so in certain circumstances. The penalty for a husband or wife who commits the offence of rape upon the other is imprisonment for fourteen years. Rape by a husband or a wife upon the other is recognized as an offence only where there is any of the following orders or agreements:
• a decree nisi of divorce or decree of nullity granted under the Divorce Act;
• a decree of judicial separation under the Civil Code;
• a separation agreement or where the parties are in fact separated;
• or a peace binding order or an order for one party not to molest or have sexual intercourse with the other. This includes a protection order from the Family Court.
----------------------------------------------------------------------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. Where a person puts his mouth or tongue on any part of a person’s genitalia, this is also sexual connection. These definitions therefore include giving and receiving oral sex.
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, there would be no consent and the act would be an unlawful sexual connection.
A child who is under sixteen years of age cannot in law consent to sexual connection. Therefore, having oral sex with a child under sixteen years of age or manipulating an object in her vagina or anus is a criminal offence irrespective of whether the child agreed to it.
Penalty
A person who puts an object into a person’s vagina or a person’s anus (where doing so is not for bona fide medical purposes) may be imprisoned for life. The penalty for the other acts which amount to an unlawful sexual connection is imprisonment for fourteen years.
Unlawful sexual connection
A husband or a wife can be found to have committed the offence of unlawful sexual connection. However, conduct which would normally amount to unlawful sexual connection will only be recognized as an offence when done by a husband to a wife (or by a wife to a husband) where there is:
• a decree nisi of divorce or decree of nullity granted under the Divorce Act;
• 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.
----------------------------------------------------------------------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 maximum penalty for this offence is imprisonment for ten 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. 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 an offence.
----------------------------------------------------------------------Indecent Assault
Indecent assault means an assault which is accompanied by words or circumstances indicating an indecent intention. It is an offence. The penalty for this offence largely depends on the age of victim.
- If the offence is committed on a child under twelve years of age, the penalty is imprisonment for fifteen years if convicted on indictment. On summary conviction the penalty is imprisonment for five years.
- If the offence is committed on a child who is twelve years of age or more but who is still under the age of sixteen, the person may be imprisoned for ten years if convicted on indictment. On summary conviction, penalty is imprisonment for five years.
- If the offence is committed on a person who is sixteen years of age or more, the penalty is imprisonment for three years.
Buggery
The Criminal Code defines buggery as sexual intercourse per anus by a male person with another male person. Buggery is therefore recognized as anal sex between males and does not include anal sex between a female and a male. The penalty for buggery is imprisonment for ten years. If the offence of buggery is committed with force and the other person did not agree to it, that penalty is imprisonment for life.
----------------------------------------------------------------------Procuration/sex trafficking
A person who procures a child who is under eighteen years of age to have unlawful sexual intercourse, to engage in unlawful sexual connection, to become a prostitute or to become an inmate in a brothel commits a criminal offence. The penalty for this offence is imprisonment for seven years.
----------------------------------------------------------------------TRANSMISSION OF HIV: Aggravated sexual assault
It is a criminal offence for a person with HIV to intentionally or recklessly infect another person with the virus. Doing so by sexual intercourse or any other means constitutes an “aggravated sexual assault”.
The penalty for this offence is imprisonment for ten years. Even if the person had consented to being infected with HIV, the accused person cannot use such consent as a defence for infecting the other person with HIV.
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Sexual offences in relation to children
A child under sixteen years of age cannot legally consent to sexual intercourse. It is a criminal offence for anyone to have sexual intercourse with or attempt to have sexual intercourse with a child who is under sixteen years of age. This is commonly known as statutory rape. The penalties for offences committed against minors under the age of sixteen years tend to differ, there being more stringent penalties where the child is under twelve years of age.
Sexual intercourse with children under sixteen years of age
Anyone who has sexual intercourse with a child who is between ages of twelve and sixteen may be imprisoned for fifteen years. If however the person accused of the offence was under twenty one years old at the time of the offence and had reasonable cause to believe and actually believed that the child was sixteen years of age or more, he will have a defence to the charge.
If a person has sexual intercourse with a child who is under twelve years of age, that person may be imprisoned for life.
----------------------------------------------------------------------Sexual intercourse with minor employees
The Criminal Code further protects minors who are employed by adults. If an adult has sexual intercourse with an employee who is a minor the adult may be imprisoned for twenty-five years.
----------------------------------------------------------------------Legal obligation on owners and occupiers
The obligation to protect children under sixteen years of age from defilement extends to all owners, occupiers and managers of premises. It is an offence for such adults to permit minors to be on their premises for the purpose of having sexual intercourse or sexual connection with another person. If the minor is under twelve years of age, the adult may be imprisoned for fifteen years. If the minor is twelve years of age or older but is under sixteen years of age, the adult may be imprisoned for two years.
----------------------------------------------------------------------
Sexual offences in relation to persons suffering from mental disorders
Offences by persons in position of trust
Persons who are in a position of trust or authority towards a person suffering from mental disorder should not incite them to engage in sexual intercourse. They should also not touch them inappropriately or use an object to touch them inappropriately. If any person in a position of trust or authority does any of these activities, that person commits a criminal offence and may be imprisoned for a maximum period of fifteen years.
With respect to persons with mental disorders who are inmates of an asylum, it is a criminal offence for employees of the asylum to allow a person to have sexual intercourse with them. Any employee who does this may be imprisoned for a maximum period of fifteen years.
Gross Indecency upon a person suffering from a mental disorder
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. 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. The maximum penalty for this offence is imprisonment for ten years.
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- The Criminal Code Chap 3:01
- The Equality of Opportunity and Treatment in Employment and Occupation Act 2000
In Saint Lucia sexual harassment is a criminal offence. It is also recognized as unlawful discrimination. The laws governing sexual harassment are theCriminal Code and the Equality of Opportunity and Treatment in Employment and Occupation Act .
Protection under the Criminal Code Chap 3:01
Sexual harassment is a criminal offence which carries a penalty of imprisonment for one year. The relevant section in the Criminal Code applies to employers, supervisors and prospective employers.
Protection for employees
It is a criminal offence for an employer or supervisor to make it reasonably appear to a person that that person’s prospects or working conditions depends on the person’s acceptance or tolerance of sexual advances or persistent sexual suggestions from the employer or supervisor. The employer or supervisor (as the case may be) would have committed sexual harassment and may be imprisoned for one year.
Protection for job seekers/ prospective employees
It is also a criminal offence for a prospective employer to make it appear to a job seeker or a prospective employee that the offer of employment or the terms of the employment depends on the person accepting or tolerating sexual advances or persistent sexual suggestions from him. The prospective employer would have committed sexual harassment and may be imprisoned for one year.
Protection under the Equality of Opportunity and Treatment in Employment and Occupation Act 2000
Sexual harassment as unlawful discrimination
One of the prohibited grounds of discrimination under the Equality of Opportunity and Treatment in Employment and Occupation Act is discrimination based on a person’s sex. Under this Act, sexual harassment is recognized as a feature of sex discrimination. If an employer, managerial employee or a co-employee engages in any act of sexual harassment against an employee, it is recognized as unlawful discrimination. The prohibition of sexual harassment also applies to professional trade organizations, employment agencies and qualifying bodies.
The penalty for sexual harassment under the Equality of Opportunity and Treatment in Employment and Occupation Act is a fine of $5,000.00.
Remedies available to a victim of sexual harassment
A victim of sexual harassment can receive damages for losses suffered as a result of the sexual harassment. The court may even order that the employer or relevant person make amends by employing, re-employing or re-instating the person who was sexually harassed (as the case may be).
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C. HELP FOR SURVIVORS
I. GETTING HELP UNDER THE DOMESTIC VIOLENCE (SUMMARY PROCEEDINGS) ACT
----------------------------------------------------------------------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 or the Family 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 violence, mental or emotional injury or harm to the abused party or to 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, 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.
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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 can 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 Act. 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 were living 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 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. The court may order the abusive person to provide financial support and continue to pay rent etc. In making the order, the court will consider your financial means and the financial means of the abusive person.
----------------------------------------------------------------------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 she 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 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. The penalty breaching a protection order or an interim order is imprisonment for six months or a fine of five thousand $5,000.00 or both such fine and imprisonment.
It is also important to know that in Saint Lucia, it is a criminal offence for a person to perpetrate domestic violence against another person. Any person who does this may be imprisoned for six months or fined $5,000.00 or be subject to both such fine and imprisonment.
----------------------------------------------------------------------What powers do the police have under the Act to protect me from domestic violence?
Power of arrest
A police officer can arrest without a warrant any person whom he has reasonable cause to suspect has breached a protection order. The police should only arrest that person, if he believes that the arrest is necessary for your protection. In determining whether to the arrest the abusive person, the police should consider the seriousness of the act which constituted the alleged breach and also the restraining effect of other persons or circumstances on the abusive person.
----------------------------------------------------------------------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 $25,000.00. 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.
The court may forbid the publication of reports which give details of the offences alleged to have been committed against a person. If any person breaches an order of the court not to publish the details of your case, the court may deal with this breach as a contempt of court.
The identities of the persons involved in a sexual offence case are also protected. There should be no written publication or broadcast available to the public which may lead members of the public to identify the accused and the victim. This restriction may be removed in only certain circumstances. If a person contravenes this provision, that person may be imprisoned for three years and fined $50,000.00.
----------------------------------------------------------------------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 Lucia should be guided by the position at common law.
GO BACK TO TOP OF PAGE[1] P. Murphy, Murphy on Evidence (11th edn, Oxford University Press 2009) 635
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