Turks and Caicos
- 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?
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A.WHAT IS THE LEGAL STANDARD SET FOR STATE ACTORS AND LAWMAKERS IN TURKS AND CAICOS ISLANDS IN RELATION TO GENDER-BASED VIOLENCE?
Duty to comply with ratified international human rights conventions
State actors and lawmakers in The Turks and Caicos Islands have a legal duty to comply with the terms of the international human rights conventions to which it is a State Party. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979 has been extended to the Turks and Caicos Islands. [1].
The Turks and Caicos Islands 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 Turks and Caicos Islands which help to perpetuate violence against women and girls.
Duty to comply with the Constitution as the supreme law
The Constitution of Turks and Caicos Islands 1988 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 Turks and Caicos are:
• Magistrate’s Court (Domestic Proceedings) Ordinance 1985
• Offences against the Person Ordinance 1998 which has been amended by Act No. 15 of 2001 and
• the common law.
The legal framework which protects women and girls from gender-based violence includes the Constitution, Acts of Parliament and rules from the common law. Some acts of violence which cause physical injury amount to a criminal offence (for example assault, wounding) and may be prosecuted under the Offences against the Person Ordinance and under the common law.
The Turks and Caicos Islands 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).
----------------------------------------------------------------------I. MAGISTRATE’S COURT (DOMESTIC PROCEEDINGS) ORDINANCE 1985
The law in Turks and Caicos which governs domestic violence is different from the other domestic violence laws across the region. The Magistrate’s Court (Domestic Proceedings) Ordinance 1985 has provisions which deal with domestic violence however, only married persons may seek relief under this legislation. This means that for persons who are not married, they would have to rely on the criminal law and the law of torts to get protection from the court.
----------------------------------------------------------------------II. OFFENCES AGAINST THE PERSON ORDINANCE 1998
The law governing sexual offences in Turks and Caicos is Offences against the Person Ordinance 1998 which has been amended by Act No. 15 of 2001. 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 Offences against the Person Ordinance 1998 include:
• Rape
• Buggery
• Indecent assault
• Sex trafficking/procuration
• Sexual offences in relation to children
OFFENCES
----------------------------------------------------------------------Rape
The penalty for rape is imprisonment for life. The legislation does not provide a definition for rape.
----------------------------------------------------------------------Procuration
Procuring a girl under twenty-one years of age to have unlawful sexual intercourse is a criminal offence. The penalty for this offence is imprisonment for two years.
----------------------------------------------------------------------Indecent Assault
It is a criminal offence for a person to commit an indecent assault upon a girl or woman. The penalty for this offence is imprisonment for two years. This penalty is in stark contrast to that where a person commits an indecent assault upon a man or boy. This carries a penalty of imprisonment for ten years.
----------------------------------------------------------------------Buggery
The penalty for buggery is imprisonment for life.
----------------------------------------------------------------------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. Many children are forced or lured into sexual relationships with adults largely because of their financial need and inadequate family and social support. 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 children under sixteen years of age
The penalty for having sexual intercourse with a girl who is under thirteen years of age is imprisonment for five years.
The penalty for having sexual intercourse with a girl who is between thirteen and sixteen years of age is imprisonment for two years.
----------------------------------------------------------------------C. HELP FOR SURVIVORS
I. CRIMINAL LAW AND THE LAW OF TORTS
Protection for unmarried persons against domestic violence
If you are unmarried and your partner or former partner is engaging in acts of violence towards you, you can rely on the criminal law and have them prosecuted for criminal offences such as assault, wounding etc. If the person’s action amounts to a tort, for example locking you in the home and not allowing you to leave, or putting you in fear of imminent danger, you can seek relief from the court.
II. GETTING HELP UNDER THE MAGISTRATE’S COURT (DOMESTIC PROCEEDINGS) ORDINANCE 1985
----------------------------------------------------------------------Where do I apply for an order?
You should make an application for a protection order, exclusion order or occupation order at the Magistrate’s Court. You do not need an attorney to make the application for you.
----------------------------------------------------------------------What types of orders and protection can I get?
The orders available are protection order, exclusion order and occupation order.
Protection order
The protection order is an order from the court. It prohibits the person who is abusing you from doing so. The protection order prohibits the abusive person using or threatening to use violence against you.
Exclusion Order
This order may require the abusive person to leave the matrimonial home or prohibit the abusive person from entering the matrimonial home. The magistrate may make an exclusion order where any of the following situations exist:
• The abusive person used violence against you or a child of the family
• The abusive person has threatened to use violence against you or a child of the family and has used violence against some other person
• Although the magistrate had ordered the abusive person not to use or threaten to use violence against you or the child, the abusive person has threatened to do so
Occupation order
An occupation order gives you the right to live in the home and prevents the abusive person from living there.
----------------------------------------------------------------------What must I prove to get the order?
Firstly, you must first establish that you qualify to seek relief under the Ordinance. In order to qualify you must be married to or were married to the abusive person. Secondly, you must prove that the abusive person has engaged or threatens to engage in conduct which amounts to domestic violence towards you.
----------------------------------------------------------------------What powers do the police have under the Act to protect me from domestic violence?
Power of arrest
The magistrate may attach a power of arrest to the orders made if he is satisfied that you or the child was physically injured by the abusive person and the abusive person is likely to do so again. The effect of this is that a police officer may arrest without a warrant anyone whom he believes has breached an order by virtue of using violence or by entering the matrimonial home. If the police officer arrests an abusive person for breaching an order, the abusive person must be brought before the magistrate or a justice of the peace within twenty-four hours after his arrest.
If the magistrate did not attach a power of arrest to the order and your husband or wife has disobeyed the order you may apply to the magistrate or a justice of the peace for the person to be arrested.
----------------------------------------------------------------------How will my privacy be protected during the court proceedings?
The magistrate has the power to hear the proceedings in camera (in private) and may further exclude persons from the courtroom during the taking of any “indecent evidence”. There are restrictions on publication of reports of these proceedings. The media is however allowed to publish information identifying the parties, the charges, submissions on points of law and the decision of the magistrate. It is only the evidence given during the proceedings that the media appears to be prohibited from publishing or broadcasting.
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SUPPORT SERVICES FOR SURVIVORS OF GENDER-BASED VIOLENCE
Legal Aid services are generally available across the English-speaking Caribbean for serious offences. Some Acts such as the Legal Aid and Advice Act, Chap. 7:07 of Trinidad and Tobago expressly allows for persons making applications pursuant to the domestic violence legislation and the sexual offences legislation to access legal aid.
Each country also has women/gender affairs departments, crisis centres or NGO victim support service providers. A list of the Gender Bureau and Women’s Desks in the Caribbean is provided at <List of Women's Machineries in the Caribbean>.
[1] Committee on the Elimination of Discrimination against Women, Information provided by the Government of the United Kingdom of Great Britain and Northern Ireland under the follow-up procedure to the concluding observations of the Committee, CEDAW/C/UK/CO/6/Add.1, November 2009
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