Saint Vincent

WHAT IS THE LEGAL STANDARD SET FOR STATE ACTORS AND LAWMAKERS IN SAINT VINCENT 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 (SUMMARY PROCEEDINGS) ACT 1995
• CRIMINAL CODE CAP. 124 "1990 Rev"

HELP FOR SURVIVORS

• GETTING HELP UNDER THE DOMESTIC VIOLENCE (SUMMARY PROCEEDINGS) ACT 1995
• CRIMINAL TRIALS FOR SEXUAL OFFENCES

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

Duty to comply with ratified international human rights conventions

State actors and lawmakers in Saint Vincent and the Grenadines have a legal duty to comply with the terms of the international human rights conventions that Saint Vincent and the Grenadines has ratified or acceded to. Saint Vincent and the Grenadines acceded to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) on August 4, 1981, and ratified the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women on March 31, 1996.

Saint Vincent and the Grenadines 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 Vincent and the Grenadines which help to perpetuate violence against women and girls.

Duty to comply with the Constitution as the supreme law

The Constitution of Saint Vincent and the Grenadines 1979 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 Vincent and the Grenadines are:

• Domestic Violence (Summary Proceedings) Act 1995

• Criminal Code Cap. 124 (“1990 Rev”) which has been amended by Family Court Act1992 and the Criminal (Amendment) Code 1993, 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 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.

Saint Vincent and Grenadines 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 (SUMMARY PROCEEDINGS) ACT 1995

The law governing domestic violence in Saint Vincent and the Grenadines is the Domestic Violence (Summary Proceedings) Act 1995. This Act creates a wide range of speedy and effective remedies which are aimed at reducing the incidences of domestic violence. A court 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.

II. CRIMINAL CODE CAP. 124 “1990 Rev”

The Criminal Code Cap. 124 “1990 Rev” governs sexual offences in Saint Vincent and the Grenadines. 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 Criminal Code include:

• Rape

• Indecent assault

• Gross indecency

• Buggery

• Sex trafficking/procuration

• Sexual offences in relation to children

• Sexual offences in relation to persons with mental impairment

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OFFENCES

RAPE

Rape is a criminal offence. It is defined as where a male person has unlawful sexual intercourse with a female person without her consent knowing that she does not consent or is reckless as to whether she consents to the sexual intercourse.

If a woman or a girl agrees to have sexual intercourse with another person because she is beaten, threatened with violence, misled as to the nature of the act etc., there would be no consent. Having sexual intercourse in these circumstances is considered rape.

The penalty for rape is imprisonment for life.

Sexual intercourse by threats, false pretences, drugs etc

It is a criminal offence for a person to cause a woman to have sexual intercourse by threatening her or intimidating her. Attempting to cause her to have sexual intercourse by such means is also a criminal offence. The penalty for each of these offences is imprisonment for life.

It is also a criminal offence for a person to procure or attempt to procure a woman to have unlawful sexual intercourse by false pretences. This offence carries a penalty of imprisonment for two years.

If a person administers any drug or thing to woman intending to overpower her or stupefy her so as to cause her to have unlawful sexual intercourse, that person commits a criminal offence. The penalty for this offence is imprisonment for five years.

Indecent Assault

It is a criminal offence for a man to indecently assault a person. The penalty for doing this is imprisonment for two years.

Gross indecency

It is a criminal offence for a person to commit an act of gross indecency with another person who is of the same sex. It does not matter whether the act is done in private or in public. It is also a criminal offence for a person to procure or attempt to procure another person of the same sex to commit an act of gross indecency with him. The penalty for each of these offences is imprisonment for five years.

Buggery

Buggery is a criminal offence which carries a maximum penalty of imprisonment for ten years.

Procuration

It is a criminal offence for a person to procure or attempt to procure a woman to become a prostitute or an inmate in a brothel. Any person who does this may be imprisoned for fourteen years.

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Sexual offences in relation to children

Children under fifteen 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. It is a criminal offence for anyone to have sexual intercourse with a child who is under fifteen years of age. This is commonly known as statutory rape. It is also a criminal offence for a person to attempt to do so. There are stringent penalties for offences against children, even more so where the child is under thirteen years of age. If a parent or guardian of a child causes or encourages that child to be sexually abused, that parent or guardian commits a criminal offence and may be imprisoned for seven years.

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 in 2013 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 under fifteen years of age

The penalty for having sexual intercourse with a girl who is under thirteen years of age is imprisonment for life.

If a man or boy has sexual intercourse with a girl who is above the age of thirteen years but below the age of fifteen years, he may be imprisoned for five years. If however, the accused person is a young man under nineteen years of age and he has not previously been charged with a similar offence he may have a defence to the charge if he believed that the girl was fifteen years of age or more and he had reasonable cause for that belief.

Indecency with a child

It is a criminal offence for a person to commit an act of gross indecency with or towards a child who is under fourteen years of age. It is also a criminal offence for a person to incite a child under fourteen years of age to commit an act of gross indecency. The penalty for each of these offences is imprisonment for one year.

Legal obligation on owners and occupiers

The obligation to protect a child under fifteen years of age from defilement extends to all owners, occupiers, managers of premises and persons in control of premises. It is a criminal offence for such adults to permit a girl under fifteen years of age to be on their premises for the purpose of having sexual intercourse with a person. If the girl is under the age of thirteen years, the owner, occupier, manager or person in control of premises may be imprisoned for fourteen years. If the girl is of or over thirteen years of age but is under fifteen years old, the owner, occupier, manager or person in control of premises may be imprisoned for seven years.

Sexual offences in relation to persons suffering from mental disorders

Persons suffering from mental disorders are in need of special protection. The Criminal Code prohibits unlawful sexual intercourse with a woman who is a “mental defective”. It defines a “mental defective” as:

a woman who has been ordered to be detained under the provisions of the Mental Health Act, or who is shown by the evidence of two medical practitioners to be suffering from serious mental illness, psychopathic disorder or subnormality.

The penalty for having unlawful sexual intercourse with a mentally defective woman is imprisonment for life. If however, the man did not know or had no reason to suspect or believe that the woman was a mental defective, he will not be guilty of this offence.

C. HELP FOR SURVIVORS

I. GETTING HELP UNDER THE DOMESTIC VIOLENCE (SUMMARY PROCEEDINGS) ACT 1995

Where do I apply for an order?

You should make an application for a protection order, occupation order or a tenancy order at 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 does not provide a definition for domestic violence. It is however clear from the language of the Act that violence which causes physical or mental injury amounts to domestic violence. Slapping, choking, being hit with a fist or other object, being kicked, threatened with knives and other weapons, being forced to engage in sexual activities are all acts which amount to domestic violence.

What types of orders and protection can I get?

The orders available are: protection order; occupation order and tenancy order.

Protection order

The protection order is an order from the court. It prohibits the person who is abusing you from doing so. It further prohibits that person from engaging in certain activities such as: molesting you, using abusive language towards you, following you, making phone calls to you, entering or remaining in your home or your place of work.

Occupation order

An occupation order gives you the right to live in the home and prevents the abusive person from living there. It may also have a condition attached that the abusive person provides financial support.

Tenancy order

A tenancy order vests you with the tenancy of the dwelling house which you and the abusive persons reside or hold together as tenants.

Additional Orders

Order for use of furniture etc

If you are granted an occupation order or a tenancy order, the court may also grant you permission by means of a further order for the use of the furniture, household appliances and household effects. This ancillary order would last for three months unless the court directs otherwise. It however expires whenever the occupation or tenancy order expires.

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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 (Summary Proceedings) Act 1995. 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

• you are a member of the household

Secondly, you must prove that the abusive person has used violence against you or has threatened to do; has caused you physical or mental injury, and is likely to do so again; or has committed or attempted to commit a sexual offence or where a person has conducted himself in a manner which is sexually offensive.

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 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 can order the abusive person to provide you with financial support.

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. This may be done where the court 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 is breached?

A person who breaches a protection order or an interim order commits a criminal offence. The penalty for this is imprisonment for six months or a fine of $5,000.00 or both such fine and imprisonment.

What powers do the police have under the Act to protect me from domestic violence?

Power of arrest for suspected breach of protection order

A police officer may arrest without a warrant anyone whom he has reasonable cause to suspect has committed a breach of a protection order. Before the police officer arrests the person, he must be satisfied that the arrest is reasonably necessary for the protection of the person on whose behalf the protection order 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; and

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

Power of arrest where there is no protection order in force

Even where there is no protection order in force, a police officer may take all necessary and appropriate steps including arresting someone, for the protection of a person who is being subjected to domestic violence. The police officer may do this where he knows or has good cause to believe that a person is a victim of domestic violence and is likely to be further abused.

How will my privacy be protected during the court proceedings?

The court can hear 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 fideprofessional 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 court 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.

II. CRIMINAL TRIALS FOR SEXUAL OFFENCES

Is there any provision to protect the privacy of a survivor of sexual violence?

The Criminal Code by its amendment by the Family Court Act 1992 restricts the printing, publishing or broadcasting the names and addresses of the victim and certain particulars of the proceedings. It is a criminal offence for a person to contravene these provisions. This offence carries a penalty of imprisonment for six months or a fine of $500.00.

A person is however allowed to publish or pint the charges, defences, submission on points of law, the summing up of court and also the judgment of the court.

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 Vincent and the Grenadines should be guided by the position at common law.

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