Trinidad and Tobago

WHAT IS THE LEGAL STANDARD SET FOR STATE ACTORS AND LAWMAKERS IN TRINIDAD AND TOBAGO 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 1999
• SEXUAL OFFENCES ACT Chap 11:28 "2006 Rev"
• OFFENCES AGAINST THE PERSON (AMENDMENT) (HARASSMENT) ACT 2005

HELP FOR SURVIVORS

• GETTING HELP UNDER THE DOMESTIC VIOLENCE  ACT 1999
• CRIMINAL TRIALS FOR SEXUAL OFFENCES

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

Duty to comply with ratified international human rights conventions

State actors and lawmakers in Trinidad and Tobago have a legal duty to comply with the terms of the international human rights conventions that Trinidad and Tobago has ratified or acceded to. Trinidad and Tobago is a State Party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979 and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women 1994.

Trinidad and Tobago 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 Trinidad and Tobago which help to perpetuate violence against women and girls.

Duty to comply with the Constitution as the supreme law

The Constitution of Trinidad and Tobago 1976 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 which specifically address gender-based violence in Trinidad and Tobago are the:

• Domestic Violence Act 1999 which has been amended by section 53 of the Police Complaints Authority Act 2006

• Sexual Offences Act Chap. 11:28 “2006 Rev”

Other relevant laws include:

• Summary Offences Act Chap. 11:02 “2006 Rev” (assault and battery etc.)

• Offences against the Person Act Chap. 11:08 “2006 Rev” (criminalizes assaults, acts causing danger to life or bodily harm etc.)

• Offences Against the Person (Amendment) (Harassment) Act 2005 (which makes harassment a criminal offence)

• Legal Aid and Advice Act Chap. 7:07 “2006 Rev” (allows persons making applications pursuant to the domestic violence legislation and the sexual offences legislation to access legal aid)

• 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.

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I. DOMESTIC VIOLENCE ACT 1999

The law governing domestic violence in Trinidad and Tobago is the Domestic Violence Act1999. 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.

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

II. SEXUAL OFFENCES ACT Chap 11:28 “2006 Rev”

The law governing sexual offences in Trinidad and Tobago is the Sexual Offences ActChap 11:28 “2006 Rev” (hereinafter referred to as the Sexual Offences Act). The principal Act is Act No. 27 of 1986 which has been amended by Act No. 20 of 1994 and Act No. 31 of 2000. The Act recognizes a wide range of offences and has provisions geared at offering greater protection to children and persons with mental disorders. There are also special provisions governing court proceedings. 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 Sexual Offences Act include:

• Rape

• Buggery

- Incest

• Indecent assault

• Grievous sexual 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

In Trinidad and Tobago, the law governing rape is gender-neutral. Men and women are protected against the offence of rape. A person commits the offence of rape when he has sexual intercourse with another person without the consent of that person where he knows that the complainant does not consent to the intercourse or where he is reckless as to whether the complainant consents to it. Where a person agrees to have sexual intercourse with another person because she was threatened or misled about the nature of the intercourse, this amounts to rape. The law does not recognize consent where it is:

• extorted by threat or fear of bodily harm to the complainant or to another;
• obtained by personating someone else;
• obtained by false or fraudulent representations as to the nature of the intercourse; or
• obtained by unlawfully detaining the complainant.

Penalty for rape

A person who rapes another person may be imprisoned for life. In certain circumstances a more severe penalty of ‘imprisonment for the remainder of one’s natural life’ may be imposed. This penalty may be imposed where:

• the offence of rape is committed by two or more persons acting in concert or with the assistance or in the presence, of a third person;
• the offence is committed against someone under 12 years of age;
• the offence of rape is committed in particularly heinous circumstances;
• the complainant was pregnant at the time of the offence and the accused knew that the complainant was pregnant; or
• the accused has previously been convicted of the offence of rape.

Marital rape

Previously the law only recognised that sexual intercourse between husband and wife could  be non consensual in very limited circumstances, including where there was a separation  or a decree nisi  was in effect.  The law now fully recognizes rape within marriage and makes no distinction between non consensual sexual intercourse between persons who are married or cohabiting and the rape of a person who is not the husband, wife or cohabitant of the offender.

Grievous sexual assault

“Grievous sexual assault” is a new offence created by the Sexual Offences (Amendment) Act 2000. It includes oral sex, penetration of the vagina or anus by a body part other than the penis or by a manipulated object. Grievous sexual assault is defined as:

• the penetration of the vagina or anus of the complainant by a body part other than the penis of the accused or third person as the case may be;

• the penetration of the vagina or anus of the complainant by an object manipulated by the accused or third person, as the case may be, except when such penetration is accomplished for medically recognized treatment;

• the placing of the penis of the accused or third person, as the case may be, into the mouth of the complainant; or

• the placing of the mouth of the accused or third person as the case may be, onto or into the vagina of the complainant.

The offence of grievous sexual assault is committed when a person commits an act which constitutes grievous sexual assault on another person without that person’s consent, knowing that the person does not consent to the act or being reckless as to whether the person consents. If the complainant consents to the act because of: threat or fear of bodily harm; personating someone else etc, then the offence of grievous sexual assault would still have been committed.

Penalty

The penalty for committing grievous sexual assault is the same as that for committing the offence of rape. A person who commits the offence of grievous sexual assault may be imprisoned for life and any other punishment which may be imposed by law. However, the convicted person is liable to imprisonment for the remainder of his natural life where –

• the complainant is under the age of twelve years;
• the offence is committed by two or more persons acting in concert or with the assistance or in the presence, of a third person;
• the offence if committed in particularly heinous circumstances;
• the complainant was pregnant at the time of the offence and the accused knew that the complainant was pregnant; or
• the accused has previously been convicted of the offence of grievous sexual assault.

Buggery

Buggery is defined as sexual intercourse per annum by a male person with a male person or by a male person with a female person. If the offence is committed by an adult on a minor, the adult may be imprisoned for life. If the offence is committed by adults, the penalty is imprisonment for twenty five years. If minors commit this offence, they may be imprisoned for five years.

Indecent assault

Indecent assault is where assault is accompanied by words or circumstances indicating an indecent intention. A person who indecently assaults another is guilty of an offence and is liable on conviction to imprisonment for five years for a first offence and to imprisonment for ten years for a subsequent offence. A minor under the age of sixteen years cannot in law give consent which would prevent an act from being an indecent assault.

Serious indecency

An act of serious indecency is an act, other than sexual intercourse (whether natural or unnatural), by a person involving the use of the genital organ for the purpose of arousing or gratifying sexual desire. A person who commits an act of serious indecency on or towards a minor under sixteen years of age may be imprisoned for ten years for a first offence and fifteen years for a subsequent offence. If the offence is committed on or towards a person sixteen years of age or more, the penalty is imprisonment for five years.

No offence is committed where the act of serious indecency is committed in private between a husband and his wife or between a male person and a female person each of whom is sixteen years of age or more, both of whom consent to the commission of the act.

Procuration

It is a criminal offence for a person to procure a child under sixteen years of age to have sexual intercourse, to become a prostitute or to become an inmate is a brothel. The penalty for this offence is imprisonment for fifteen years.

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Sexual offences in relation to children

Children under sixteen years of age cannot in law give consent to sexual intercourse and a wide range of other sexual activities. They are however vulnerable to sexual violence and sexual exploitation. 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.

Sexual intercourse with girl under sixteen years of age

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

The penalty for having sexual intercourse with a girl who is between the ages of fourteen and sixteen years of age is imprisonment for twelve years for a first offence. For a subsequent offence, the penalty is imprisonment for fifteen years. If the man honestly believed that the girl was sixteen years of age or more, he will not be guilty of the offence. He will also not be guilty of the offence if he is not more than three years older than the girl and the court is of the opinion that the evidence discloses that as between both persons, the man is not wholly or chiefly to blame.

A person has a defence to this charge if: he honestly believed that the girl was sixteen years of age or more; or where he is not more than three years older than the girl and the court is of the opinion that the evidence discloses that as between both persons he was not wholly or chiefly to blame.

Sexual intercourse with boy under sixteen years of age

The penalty for a woman having sexual intercourse with a boy who is under sixteen years of age is imprisonment for five years.

If the woman honestly believed that the boy was sixteen years of age or more, she will not be guilty of the offence. She will also not be guilty of the offence if she is not more than three years older than the boy and the court is of the opinion that the evidence discloses that as between the woman and the boy , the woman is not wholly or chiefly to blame.

Householder permitting defilement of a minor under sixteen years of age

An owner, occupier, manager of premises or someone who assists in the management or control of premises should not allow a child under sixteen years of age on the premises for the purpose of engaging in sexual intercourse with anyone. Any owner, occupier etc. who does this is guilty of an offence and may be imprisoned for ten years.

If the person charged with this offence proves that he did not know or had no reason to believe or suspect that the child was under the age of sixteen years, he will have a defence to the charge.

Sexual offences in relation to persons with mental impairment

Under the Sexual Offences Act ‘mentally subnormal’ means a state of arrested or incomplete development of mind which includes a significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.

A person who has sexual intercourse (even where consensual) with a mentally subnormal person who is not his spouse commits an offence. The penalty for this offence is imprisonment for twenty five years. The accused person has a defence if he proves that he did not know and had no reason to believe that the other person was mentally subnormal.

To institute proceedings for this offence, the consent of the Director of Public Prosecutions must be obtained. The Director of Public Prosecutions will consider whether any abuse in relation to the mentally subnormal person has been committed.

Incest

A person commits the offence of incest who, knowing that another person is by blood relationship, his or her parent, child,brother, sister, grandparent, grandchild, uncle, niece, aunt or nephew, as the case may be, has sexual intercourse with that person.

The offence of incest is punishable on conviction to imprisonment

 (a) if committed by an adult with a person under fourteen years of age, for life;

(b) if committed by an adult with a person fourteen years of age or more, for life;

(c) if committed between minors fourteen years of age or more, for two years.

A person is not guilty of the offence of incest  if that person committed the offence under restraint, duress or fear.

A relationship between two persons shall be taken to apply notwithstanding that the relationship is not traced through lawful wedlock, and “brother” includes half-brother and “sister” includes half-sister.

Sexual Intercourse with an adopted minor

An adult who has sexual intercourse with a minor who is the adult’s adopted child, stepchild, foster child, ward or dependant in the adult’s custody is guilty of an offence. The convicted offender is liable to imprisonment

 (a) if committed with a minor under fourteen years of age, for life;

(b) if committed with a minor fourteen years of age or more, for twenty-five years.

An adult shall not be guilty of an offence under this section if the minor is the spouse of the adult.

III. OFFENCES AGAINST THE PERSON (AMENDMENT) (HARASSMENT) ACT 2005

Trinidad and Tobago does not have legislation which specifically deals with sexual harassment. There is however the Offences against the Person (Amendment) (Harassment) Act 2005 which makes harassment a criminal offence.

How does the law define harassment?

Harassment of a person includes alarming the person or causing the person distress by engaging in certain types of behaviour on at least two occasions. The conduct to which these provisions apply are:

• following, making visual recordings or, stopping or accosting a person;

• watching, loitering near or hindering or preventing access to or from the person’s place of residence, workplace or any other place frequented by the person;

• entering property or interfering with property in the possession of the person;

• making contact with the person, whether by gesture, directly, verbally, by telephone, computer, post or in any other way;

• giving offensive material to the person, or leaving it where it will be found by, given to, or brought to the attention of the person;

• acting in any manner described above towards someone with a familial or close personal relationship to the person ; or

• acting in any other way that could reasonably be expected to alarm or cause the person distress

These provisions on harassment also apply to persons who in a familial or close personal relationship.

What kind of protection or order can I get?

A person against whom an offence under this Act has been committed may obtain an order for her protection or may receive compensation. Where the circumstances so require, the Court may also make an order under section 6 of the Mental Health Act. The order for protection will direct the person to cease engaging in conduct which constitutes or which may constitute harassment or that will cause fear of violence. The order may also contain other directions from the court.

An order for compensation may include:

• loss of earnings;

• medical expenses;

• moving and accommodation expenses; and

• reasonable legal costs.

What is the penalty for failing to comply with an order of the court?

Failing to comply with an order for protection is an offence. The penalty for this offence is imprisonment for six months.

What is the penalty for harassment?

A person who engages in conduct which amounts to harassment of another person is guilty of an offence and may be fined $2,000.00 and imprisoned for six months. If the harassment also causes the person to fear that violence will be used against her, and the offending person knows or ought to know that his conduct will cause this fear, the offender commits a separate offence. The penalty for this separate offence is imprisonment for six months and a fine of $10,000.00..

Is there any defence to the charge of harassment?

A person who is charged with harassing another person or putting a person in fear of violence by virtue of harassing them may have a defence against the charge. He must show that:

• his course of conduct was pursued for the purpose of preventing or detecting or crime;

• his course of conduct was pursued under any written or unwritten law or to comply with any condition or requirement imposed under any written or unwritten law; or

• in the particular circumstances the pursuit of the course of conduct was reasonable.

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C. HELP FOR SURVIVORS

I. GETTING HELP UNDER THE DOMESTIC VIOLENCE ACT 1999

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.

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?

Domestic violence includes acts committed by a person against a spouse, child and any other person who is a member of the household or who is a dependant which amounts to:(i) physical abuse; (ii) sexual abuse; (iii) emotional or psychological abuse; or (iv) financial abuse.

Types of abuse

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

Sexual abuse is where sexual contact of any kind is coerced by force or threat of force.

Emotional or psychological abuse means a pattern of behaviour of any kind, the purpose of which is to undermine the emotional well-being of a person. Examples of this form of abuse are where a person uses abusive or threatening language to persistently intimidate you, persistently follows you from place to place etc.

Financial abuse is defined as a pattern of behaviour of a kind, the purpose of which is to exercise coercive control over, or exploit or limit a person’s access to financial resources so as to ensure financial dependence.

What types of orders and protection can I get?

A protection order is available. 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. It may also exclude the abusive person from the home.

Counselling order

The court can direct that you or the abusive person or both of you receive professional counselling or therapy from a person or an agency or from a programme which is approved by the Minister responsible for Social Development and Family Services in writing.

What must I prove to get the order?

Firstly, you must first establish that you qualify to seek relief under the Domestic Violence Act 1999. 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 have lived with or is living with a person of the opposite sex as husband or wife although not legally married to that person

• you are or have been in a visiting relationship with a person of the opposite sex for a period exceeding twelve months

• 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 and whether in all the circumstances the order is necessary for your protection.

In determining the terms of the protection order, the court will consider:

• the nature, history or pattern of the violence that has occurred and whether a previous protection order or interim order has been issued;

• the need to protect the applicant and any other person for whose benefit the protection order has been granted from further domestic violence;

• the welfare of any child;

• the accommodation needs of the applicant and any other person;

• the hardship that may be caused as a result of making of the order;

• the income, assets and financial obligations of the respondent, the applicant and any other person affected by the order;

• the need to preserve and protect the institution of marriage and other relationships whilst affording protection and assistance to the family as a unit; and

• any other matter, that in the circumstances of the case, the Court considers relevant.

How long will the protection order last?

The duration of the protection order depends on how long the court considers the order necessary for your protection but it cannot last for more than three years. The court may specify different periods for each prohibition or direction in the protection order.

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:

• pay compensation for monetary losses you have suffered

• provide interim monetary relief

• make rent or mortgage payment

• ensure that the child is cared for

You can receive compensation for:

• loss of earnings

• medical and dental expenses

• moving and accommodation expenses

• reasonable legal costs, including the cost of an application pursuant to this Act.

The compensation awarded by the court cannot exceed $15,000.00. The money is to be paid to the court on your behalf

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 lasting no longer than 21 days. 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 or interim order commits a criminal offence. On a first conviction for breaching an order, the penalty is imprisonment for three months or a fine of $9,000. On a second conviction for breaching an order, the penalty is imprisonment for up to twenty-four months or a fine of $15,000 or both such fine and imprisonment. On any subsequent conviction, the maximum penalty is imprisonment for five years.

If a person breaches a counselling order by unreasonably neglecting or refusing to attend; that person commits an offence and is liable to a fine of $3,000.00 maximum.

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

Power to apply for protection order

A police officer is authorized to apply for a protection order on your behalf?

Powers of arrest where an order is in force

Where an order is in force and a police officer believes on reasonable grounds that a person has committed or is committing a breach of the order, he may detain and arrest that person without a warrant.

Power of entry upon premises

Entering Premises with warrant

If you have suffered physical injury or if you are in imminent danger of physical injury, the police may be given a warrant by a Magistrate to enter the premises and help you.

Entering premises without warrant

The police may also enter the premises without a warrant where he has reasonable cause to believe that a person is engaging or attempting to engage in conduct which amounts to physical violence and failure to act immediately may result in serious physical injury or death. The police may search the premises and arrest the suspect.

Where the police officer exercises this power of entry he must immediately submit a written report to the Commission or Police, through the Head of the Division where the incident occurred. The report must include:

• the reasons for entering the premises without a warrant;

• the offence being committed or about to be committed; and

• the manner in which the investigation was conducted and the measures taken to ensure the protection and safety of the person at risk.

The Commissioner of Police must submit the report to the Director of Public Prosecutions within seven days of receiving it.

What duties are placed on police officers under the Act?

Section 23A of the Act places a duty on the police officer upon entering the premises to: (i) give assistance to a person who has suffered injury; (ii) ensure the welfare and safety of a child who may be on the premises; and (iii) prevent any further breach of the law.

Further a police officer has a duty to respond to every complaint or report alleging domestic violence whether or not the person making the complaint or the report is the victim. Upon responding to a domestic violence complaint, the police officer must complete a domestic violence report which will form part of the National Domestic Violence Register. This register is to be maintained by the Commissioner of Police. The domestic violence report must be in the form prescribed as ‘Form 7’. This form must include (but is not limited to) –

• the name of the parties;

• the relationship and sex of the parties;

• information relating to the history of domestic violence between the parties;

• the date and time the complaint was received;

• the type of abuse and the weapon used, if any.

How will my privacy be protected during the court proceedings?

Your application for a protection order is to be heard in camera (in private)unless the court directs otherwise.

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?

Hearings concerned with the offences of rape and sexual assault and any offence involving children, are to be heard in camera unless the court directs otherwise.

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 complainant. If the complainant wants this restriction to be removed, she can make an application to the court for this to be done. The court will then direct that the effect of the restriction is to impose a substantial and unreasonable restriction on the reporting of proceedings and that it is in the public interest to remove the restriction in respect of the applicant.

Is my past sexual history relevant?

Past sexual history of the complainant and the accused is admissible into evidence. However, the accused is allowed to bring evidence of your sexual activities with other persons in very limited circumstances. It is only where the accused makes an application to the court for such evidence to be adduced and the court after considering the application is of the opinion that such evidence is necessary for the fair trial of the accused that the court may allow such evidence. The evidence of the complainant’s sexual activities will not be admitted for the purpose of challenging or supporting the credibility of the complainant.

What is ‘recent complaint’ evidence and how will the court view it?

Where a woman says that she is the victim of a sexual offence, there is a rule at common law that allows her to give evidence that she actually told someone about what happened as soon as she was reasonably afforded the opportunity to do so. The person whom she told about the offence may also be allowed to give evidence. The judge can allow this to confirm the woman’s evidence of what happened and where consent was an issue in the case, to rebut or disprove consent.[1] These rules are known as the common law rules regarding recent complaint.

The common law rules concerning evidence of recent complaint in sexual offence cases have are no longer applicable in Trinidad and Tobago. Section 31 of the Sexual Offences Act 1986 abolished these rules.

There was nevertheless some uncertainty as to whether these rules remained abolished in Trinidad and Tobago by virtue of this section being later repealed by section 18 of theSexual Offences (Amendment) Act 2000. This issue was considered by the Court of Appeal in Trinidad and Tobago in Gabriel v The State.[2] The Court considered whether the repeal of section 31 of the Sexual Offences Act 1986 which abolished the common law rules concerning evidence of recent complaint in sexual offences cases meant that these rules were reinstated and are therefore applicable in Trinidad and Tobago.

The Court of Appeal decided that the common law rules concerning evidence of recent complaint in sexual offences cases are not applicable in Trinidad and Tobago. The Court explained that by virtue of section 31(1) of the Interpretation Act 1979 which provides that the repeal or the amendment of a written law shall not be construed as a declaration of as to the previous state of the law, the repeal of section 31 of the 1986 Act did not reinstate the common law rules concerning evidence of recent complaint in sexual offences cases.

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. [3] The reason for this warning was the mistaken belief or widely held perception that women often lie about being raped.

In Trinidad and Tobago, The Evidence Act Chap 7:02 and the Administration of Justice Miscellaneous Provisions Act (No. 28 of 1996) expressly removed this requirement. Section 15A of the Evidence Act expressly states that it is not obligatory for the Court in sexual offences cases to give the jury a warning about convicting the accused on the uncorroborated evidence of the complainant. The judge however can exercise his discretion to advise the jury of the need for corroboration.

The question of whether a judge is required to give the jury a corroboration warning in sexual offences cases was considered by the Court of Appeal of Trinidad and Tobago inMymoon v The State. [4]The appellant was convicted of serious indecency on a minor. The minor was under the age of sixteen years. The Court stated that section 11 of the Administration of Justice Miscellaneous Provisions Act (No. 28 of 1996) removed the requirement for a full corroboration warning to be given where a person is charged with a sexual offence. The Court explained that the position now is that a trial judge has discretion whether or not to give the old corroboration warning to the jury in matters of sexual offences. It was not obligatory.

[1] P. Murphy, Murphy on Evidence (11^th edn, Oxford University Press 2009) 580

[2] TT 2006 CA 28 (Criminal Appeal No. 30 of 2005) decided 27 September 2006

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

[4] TT 2002 CA 81 (Criminal Appeal No. 73 of 2000) decided 10 October 2002