The Bahamas

WHAT IS THE LEGAL STANDARD SET FOR STATE ACTORS AND LAWMAKERS IN THE BAHAMAS 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 (PROTECTION ORDERS) ACT
• SEXUAL OFFENCES AND DOMESTIC VIOLENCE ACT Chap 99 "2006 Rev "

HELP FOR SURVIVORS

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

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

Duty to comply with ratified international human rights conventions

State actors and lawmakers in The Bahamas have a legal duty to comply with the terms of the international human rights conventions that The Bahamas has ratified or acceded to. The Bahamas acceded to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) on October 6, 1995 and ratified the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women on May 16, 1995.

The Bahamas 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 The Bahamas which help to perpetuate violence against women and girls.

Duty to comply with the Constitution as the supreme law

The Constitution of The Bahamas 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.

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B. WHAT LAWS ADDRESS GENDER-BASED VIOLENCE?

The laws which address gender-based violence in The Bahamas are:

• The Domestic Violence (Protection Orders) Act 2007

• Sexual Offences and Domestic Violence Act Chap 99 “2006 Rev”

• The common law

Other relevant laws include:

• The Criminal Procedure Code Chap. 91 “2006 Rev”

• The Penal Code Chap. 84 “2006 Rev”

• The Evidence Act Chap. 65 “2006 Rev”

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 Penal Code Chap. 84 “2006 Rev” 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. Sexual harassment is governed by the Sexual Violence and Domestic Violence Act 1999 which was amended in 2000.

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I.DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT

The law governing domestic violence in Bahamas is the Domestic Violence (Protection Orders) Act 2007. This Act repeals Part II of the Sexual Offences and Domestic Violence Act 1991 which had provisions governing domestic violence. All matters concerned with domestic violence are now governed by the Domestic Violence (Protection Orders) Act 2007. This Act expressly prohibits domestic violence and harassment. It creates a wide range of speedy and effective remedies which are aimed at reducing the incidences of and preventing domestic violence.

A magistrate can grant:

• a protection order that prohibits abuse and molestation, excludes the abusive person from the home or workplace etc.

• Other orders relating to counselling, payment of rent, utilities etc.,

II.SEXUAL OFFENCES AND DOMESTIC VIOLENCE ACT Chap 99 “2006 Rev “

The Sexual Offences and Domestic Violence Act Chap 99 “2006 Rev” governs sexual offences in The Bahamas. Offences recognized under this Act include:

• Rape

• Sexual assault by a spouse

• Unnatural crime

• Indecent assault

• Serious indecency

• 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. Rape is defined as where a person who is fourteen years of age or older has sexual intercourse with a person who he or she is not married to, without that person’s consent. It is also rape where the person agrees to have sexual intercourse because of threats of bodily harm, fear of bodily harm, fraudulent representations as to the nature of the act involved etc., or because of personation of one’s husband or wife. The law governing rape is gender neutral. Both men and women are protected against the offence of rape.

The maximum penalty for rape is imprisonment for life. Attempting to rape a person is also a criminal offence. The maximum penalty for attempting to rape a person is imprisonment for fourteen years.

Sexual assault by a spouse

Where a married person has non-consensual sexual intercourse with his or her spouse, that person may be prosecuted for sexual assault. It is in very limited circumstances that a married person can be prosecuted for sexual assault upon his or her spouse. These are:

i) where the other person has notice that a petition for judicial separation, divorce or nullity of marriage has been presented to the court; or

ii) where there is in existence in relation to them:

a) a decree nisi of divorce;

b) a decree of judicial separation;

c) a separation agreement; or

d) an order of a court for the person not to molest or co-habit with the other.

The penalty for committing sexual assault on one’s husband or wife is imprisonment for fifteen years. For a person to be prosecuted for this offence, the consent of the Attorney General must be obtained.

Unnatural crime

It is not illegal for two persons of the opposite sex to have consensual sexual intercourse in private. It is only where persons of the same sex have sexual intercourse in a public place that it becomes a criminal offence. However, it is a criminal offence for an adult to have sexual intercourse with a person of the same sex who is under eighteen years of age. The penalty for each of these criminal offences is imprisonment for twenty years.

Men as well as women can be prosecuted for these offences. For a person to be prosecuted for any of these offences, the consent of the Attorney General must be obtained.

Procuring defilement of a person

Anyone who procures a person to have unlawful sexual intercourse by threats, intimidation, or false representation, administration of drugs etc., may be imprisoned for eight years.

Indecent Assault

The penalty for indecent assault is imprisonment for eight 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. 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.

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Sexual intercourse with children under sixteen years of age

The penalty for having unlawful sexual intercourse with a child who is under fourteen years of age is imprisonment for life. If a person attempts to have unlawful sexual intercourse with a child who is under fourteen years of age, he may be imprisoned for fourteen years. For these two criminal offences, it is irrelevant whether the person believed that the child was sixteen years of age or older.

If a person has unlawful sexual intercourse with a child who is not younger than fourteen years of age but is not yet sixteen years old, the penalty is imprisonment for life. Attempting to have unlawful sexual intercourse with such child is also a criminal offence which carries a maximum penalty of imprisonment for fourteen years.

Defence

For the charges of having or attempting to have unlawful sexual intercourse with a child who is between the ages of fourteen and sixteen years, a person who is not under the age of eighteen years and who has not been previously convicted of the same offence will have a defence if the person had reasonable cause to believe that the child was of or above sixteen years.

Limitation period

The Sexual Offences and Domestic Violence Act limits the period within which a person may be prosecuted for committing any of these two offences (having unlawful sexual intercourse with a minor who is between fourteen and sixteen years of age ; attempting to have unlawful sexual intercourse with a minor who is between fourteen and sixteen years of age). The prosecution for any of these offences must be commenced within six months of the commission of the offence. The consent of the Attorney-General is required for a person to be prosecuted for these offences.

Sexual intercourse with a dependent child

It is a criminal offence for an adult to have sexual intercourse with a minor whom is his dependent child. A dependent child of an adult is a child who is not related by blood to the adult but falls in any of these categories below:

• the child is the adopted child, step-child, foster child or ward of the adult
• the child has been treated by the adult as a child of the family of the adult
• the child is being maintained, either wholly or partly by the adult
• the child is in the actual custody; charge or control of the adult; or
• a child in relation to whom the adult holds a position of trust.

The penalty for having unlawful sexual intercourse with one’s dependent child is imprisonment for life. The penalty for attempting to do so is imprisonment for fourteen years.

Legal obligation on owners, occupiers of premises

The obligation to protect a child under sixteen years of age from defilement extends to all owners, occupiers, managers of premises and persons in control of premises. The sexual offences legislation makes it a criminal offence for such adults to induce or permit children under sixteen years of age to be on their premises for the purpose of having sexual intercourse with a person. An owner, occupier, manager or a person in control of premises who allows such children to be on the premises for the purposes of having sexual intercourse with a person may be imprisoned for ten 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 a criminal offence for a person to have unlawful sexual intercourse with anyone under circumstances which prove that the person knew that the individual suffered from a mental disorder. The maximum penalty for this offence is imprisonment for life.

It is also a criminal offence for a person to attempt to have sexual intercourse with someone under circumstances which prove that the person knew that the other person suffers from a mental disorder. The maximum penalty for this offence is imprisonment for fourteen years.

(a) SEXUAL HARASSMENT

The Sexual Offences and Domestic Violence Act Chap 99 “2006 Rev”

In the Bahamas, sexual harassment is a criminal offence. It is governed by the Sexual Offences and Domestic Violence Act. The law expressly protects against sexual harassment in employment (by prospective employer, actual employer, other employee and prospective employee) and in institutions.

Below are examples of conduct which amount to sexual harassment under the Sexual Offences and Domestic Violence Act.

Conduct which constitutes sexual harassment

• Where a prospective employer solicits sexual favours in the terms and conditions of offer of employment or admission into any institution

• Where a prospective employer solicits sexual favours under threat of rejecting a person’s application for employment or admission into an institution

• Where a person in a position of authority, a co-worker, other employee solicits sexual favours from a person under any promise, threats or for any favour or advantage in the place of employment or in the institution

• Where a person solicits from a person who is in a position of authority in any place of employment or any institution any favour or benefit or the forbearance from the exercise of any right, duty or power relating to that authority under any holding out or promise of sexual favours

Penalty

The penalty for sexual harassment is imprisonment for two years or a fine of $5,000.00 or both such fine and imprisonment. For a person to be prosecuted for sexual harassment, the consent of the Attorney-General must be obtained.

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C. HELP FOR SURVIVORS

I.GETTING HELP UNDER THE DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT

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. However, if you and the abusive person already have proceedings being dealt with in the Supreme Court, you should not apply to the Magistrate’s court for the protection order. Instead, you should apply to the Supreme Court for a protection order.

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, emotional or psychological abuse, sexual abuse and financial abuse.

Different types of abuse

Physical abuse is any act or omission which causes or which is intended to cause physical injury.

Emotional or 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, making unwelcome and repeated or intimidatory contact with the person’s child or elderly relative 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.

Harassment includes: (i) intimidating a person by persistent verbal abuse, threats of physical violence, malicious damage of the person’s property etc; (ii) stalking; (iii) hiding a person’s clothes or other property or depriving someone from the use of their clothes or other property; (iv) engaging in behaviour that would or that is likely to undermine a person’s emotional well-being.

What types of orders and protection can I get?

You can get a protection order. The protection order is an order from the court. It may last for up to three years. It prohibits the person who is abusing or harassing you from doing so. It may further require the abusive person to leave the home. When ordered to leave the home, the abusive person may also be instructed by the court to continue paying rent, mortgage, utilities etc. The court can give you the right to occupy the home irrespective of whether you have any legal right to the property.

If the protection order does not require the abusive person to leave the home and both you and the abusive person continue to live at the home together, the protection order can direct the abusive person to refrain from entering or remaining the home while he or she is intoxicated or under the influence of a drug. The protection order may also prohibit the abusive person from being on premises where you work or attend school.

Additional orders

Counselling

When your matter comes before the court, if the court is of the view that the matter can be resolved through counselling or through parenting sessions, it can adjourn the hearing of your application and send you and the abusive person to counselling. The court may request that it be provided with a written report indicating whether any progress was made in the counselling or the parenting sessions towards resolving the matter. The report will not give the details of what happened at the counselling sessions. When the court receives this report, it may deal with the matter as it sees fit in accordance with the domestic violence legislation.

Obligatory counselling where protection order made

If the court makes a protection order, it must also direct that both you and the abusive person (and the child if the matter involves a child) receive appropriate professional counselling and therapy from a specified agency. Regard will be had to your business and employment responsibilities. This agency has an obligation to provide a written report to the court which should detail the dates of counselling, nature of the counselling and therapy carried out and also the response of the persons who were receiving counselling and therapy.

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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 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 live or have lived together with the abusive person as husband and wife although not legally married

• You are in an intimate relationship with the abusive person who is of the opposite sex but you do not live together

• You were in an intimate relationship with the abusive person who is of the opposite sex but you do not live together

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 or has harassed you and unless the person is restrained he or she is likely to do so again.

What factors will the magistrate take into account in deciding whether to grant the order?

In determining whether to make a protection order the court must have regard to:

• the need to ensure that persons are protected from violence and harassment
• the welfare of any child who is a member of the abusive person’s household
• the need to preserve and protect the institution of marriage and to give protection and assistance to the family as a natural and fundamental group unit in society
• the accommodation needs of the members of the household
• any hardship that may be caused to the abusive person or to any other person as a result of the making of the order
• any other matter that the court considers relevant.

How long will the protection order lasts?

The maximum duration of a protection order is three years.

Do these orders affect anyone’s ownership of property?

No. These orders do not affect a person’s right to ownership of property.

Can I get any monetary order for my support of my children’s support or compensation for injuries?

Yes. You can receive maintenance for yourself and for any child who is a member for your household. The court can make this direction in the protection order. If you have suffered any monetary loss because of the abusive person’s violent conduct or harassment towards you, you can be compensated for this. You may recover money for (i) loss of earnings; (ii) medical and dental expenses; (iii) moving and accommodation expenses; and (iv) reasonable legal costs. The amount you can recover is limited to $10,000.00.

In determining whether to direct the abusive person to pay maintenance or pay compensation, the court has to consider yours as well the abusive person’s property, income, financial resources and financial obligations.

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. For the interim protection order you must give oral evidence or provide an affidavit. The person against whom the interim protection order is made may apply to the court for it to be varied or revoked.

What happens if the protection order is breached?

It is a criminal offence for a person to breach a protection order or an interim protection. The penalty for doing this breach is imprisonment for twelve 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

Where a power of arrest is attached to a protection order, a police officer may arrest without a warrant anyone whom he has reasonable cause to suspect is in breach of the protection order. The police must bring the arrested person before the court within twenty-four hours after his arrest or as soon as reasonably practicable.

Power of search and entry

A police officer may without a warrant enter any premises to help a person on the premises if he has reasonable ground to suspect that a protection order is being breached. A police officer does not need a warrant to enter premises where he is invited to the premises by a resident of the premises and upon being invited he suspects that a person on the premises has suffered physical injury or is in imminent danger of suffering physical injury by someone at the premises.

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What duties are placed on the police under the Act?

There is a duty on police officers upon intervening in a domestic violence matter to take certain steps to protect the victim. The Act anticipates likely scenarios that a police officer 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.

How will my privacy be protected during the court proceedings?

There are restrictions on the persons who may be present in the court during the hearing of the matter. Where the court is of the opinion that any evidence is “of an intimate or indecent character”, the court may further exclude persons from the court during the taking of that evidence.

Further, there are restrictions on publication of reports of these proceedings. Your identifying information, the identifying of the abusive person or other relevant persons who are parties to the proceedings should not be published in a newspaper or be broadcasted or otherwise disseminated to the public. The penalty for contravening this provision 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 or refusal of an order.

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II.CRIMINAL TRIALS FOR SEXUAL OFFENCES

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

The Criminal Procedure Code Chap 91 “2006 Rev” provides that there be restrictions on the persons who may be present when victims of certain sexual offences are giving evidence at the preliminary inquiry and also during the trial. It is only with the permission of the court that specified persons may be present. This restriction applies to offences concerned with rape, sexual assault by spouse, procuration, prostitution, failure to disclose HIV status, sexual intercourse with children under sixteen years of age, incest, sexual intercourse with dependant etc. Persons who are victims of these offences may request that two persons of their choice be present during all stages of the proceedings

Further, there are restrictions on publications of reports where the matter before the court concerns rape, sexual intercourse with a child under sixteen years of age or sexual intercourse with a person suffering from a mental disorder. These restrictions may be removed by the court only in certain circumstances. Any person who contravenes this provision may be fined $5,000.00.

Is my past sexual history relevant?

The Evidence Act Chapter 65 “2006 Rev” provides that with respect to rape offences (rape, sexual intercourse with a child under sixteen years of age, sexual intercourse with a person suffering from a mental disorder) the accused person is allowed to mention your sexual activities with him. However, he is not allowed to bring evidence of your sexual activity with other persons except where the court gives him permission to do so. It is only where the court is satisfied that such evidence is necessary for the fair trial of the accused person, that the court may allow this evidence.

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. The Bahamas should be guided by the position at common law.

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