Introduction

Within the English-speaking Caribbean there have been substantial improvements in the laws governing gender-based violence. All of the English-speaking countries in the Caribbean have enacted domestic violence legislation. Beginning in the 1990’s there was what has been referred to as ‘first generation’ legislation for example the Sexual Offences and Domestic Violence Act 1991of The Bahamas and the Domestic Violence (Protection Orders) Act 1992 of Barbados. These Acts provide no definition of domestic violence and the scope of persons who could seek relief was very limited. Following these, was the CARICOM Model legislation on domestic violence in 1997 which has been very influential in the development of domestic violence legislation across the region. This model does not provide a definition for domestic violence. It allows for the making of protection orders, occupation orders and tenancy orders. There were then ‘second generation’ domestic violence legislation, for example, Trinidad and Tobago (Domestic Violence Act 1999), Belize (Domestic Violence Act 2007), Bermuda (Domestic Violence (Protection Orders) Act 1997) and The Bahamas (Domestic Violence (Protection Orders) Act 2007 which have improved upon the CARICOM model legislation by providing a definition of domestic violence and by expanding the range of persons who can seek relief. The OECS Family Law reform and Domestic Violence Reform Project which is being coordinated through the OECS Secretariat has been yet another entry point for legislative reform of domestic violence laws in the Caribbean. The model Bills have already been introduced in some of the OECS Member States, including Grenada and St. Kitts. The model legislation captures many of the progressive developments that came subsequent to the CARICOM model frameworks were created.

There are also CARICOM model legislation on sexual offences and sexual harassment. With respect to sexual offences, Trinidad and Tobago (Sexual Offences Act Chap. 11:28 ‘2006 Rev’) and Guyana (Sexual Offences Act 2010) now serve as the model for the rest of the English-speaking Caribbean. These countries have widened the range of offences, increased penalties, removed all exemptions from marital rape prosecution, improved measures to protect victims during police investigation and court proceedings and have provisions in place to keep track of sex offenders after they have served their sentence.

As regards sexual harassment, only a handful of countries have enacted legislation which expressly prohibit sexual harassment and provide legal remedies for victims of sexual harassment. In countries which do not have sexual harassment or anti-discrimination legislation, the innovative means which can be used to deal with this ‘gap in the law’ is through recourse to the common law, in particular the law of torts (duty of care) and the law of contract (breach of implied trust, constructive dismissal etc). In Jamaica, there has been a recent and significant development at common law. A judge of the Supreme Court found that the tort of harassment is now explicitly recognized at common law (Sykes J in Needham and Clarke v Senior Claim No HCV 0852/2006 decided 24 March 2006).

The development of new Child Protection frameworks have also played a critical role in shaping the legal responses to gender based by providing stronger mechanisms for addressing child abuse and maltreatment, including sexual abuse of girls and young women. There has been the recent introduction of legislation specially designed to provide care and protection, as opposed to the former approach of merely “adding on” protection measures into Juvenile Acts which were really designed to address young people in conflict with the law. The older approach was condemned in the legal research that formed the basis of the OECS Family Law and Domestic Violence Reform Project as not sufficiently affording meaningful protection of children. [1] The new frameworks have been introduced in St. Vincent and Grenada.

DEVELOPMENT IN THE LAWS GOVERNING DOMESTIC VIOLENCE

An expanded definition of domestic violence

Domestic violence legislation in the English-speaking Caribbean generally protect against physical violence and harassment. In 1999, Trinidad and Tobago took the lead in providing a comprehensive definition of domestic violence to include physical violence, sexual violence, psychological abuse and financial abuse. Recognizing that psychological abuse may be very difficult to prove, the legislation expressly provides examples of the type of conduct which amounts to psychological abuse. Belize, Bermuda, The Bahamas, Dominica and Saint Kitts-Nevis have modeled this development.

Wide range of persons who can seek relief

Domestic violence legislation in the English-speaking Caribbean generally protect:

• persons who are married

• persons who were married

• man and woman living together as husband and wife although not married to each other

• man and woman who lived together as husband and wife although not married to each other

Bermuda, Guyana, Jamaica, The Bahamas and Trinidad and Tobago have gone much further by allowing persons in an intimate relationship although not living together as husband and wife (non-cohabiting relationships) to seek relief. Notably, those OECS member States that have already passed the OECS Model Domestic Violence Bill have also expanded the categories of persons who can apply for relief to incorporate persons in “dating” and/or “visiting” relationships. Some territories further allow persons who are not directly affected by the violence (police officers, social workers, persons with sufficient interest (Bermuda)) to apply for protection order on the behalf of a person who is being abused.

Same-sex relationships

Persons involved in same-sex relationships are generally excluded from those who can seek relief under domestic violence legislation. Some countries have, in fact, limited the reach of the legislation by expressly providing that the relationship must be one “with a person of the opposite sex". In some territories however, they can seek relief under domestic violence legislation by applying for an order as a member of the household (Jamaica, Belize) or by virtue of being in a close personal relationship with the abusive person (Bermuda) or by virtue of being in a sexual relationship with the abusive person (Guyana). In the case of Anguilla, which is one of the only Caribbean countries yet to pass domestic violence legislation, its Draft Domestic Violence  Bill proposes the progressive stance of extending the protective mandate of the legislation to same sex relationships.

Wide range of orders possible

Under domestic violence legislation, there is a wide range of orders which can be made by the court. All domestic violence legislation allow for protection orders but only some provide for occupation orders and tenancy orders. The magistrate is generally authorized to make an order which prohibits the abusive person from engaging in abusive conduct, excludes the abusive person from the home and gives the victim the right to occupy the home.

There are additional orders which a magistrate can make. The magistrate can direct the abusive person to pay money: for the benefit of the abused person, for the benefit of a child, for rent, mortgage, utilities etc. Maintenance orders may be made under the domestic violence legislation in The Bahamas, Belize, Guyana and Jamaica. In Guyana, the court may further deal with the issue of child custody.

Victims of domestic violence in Belize, Dominica, Trinidad and Tobago and The Bahamas may receive compensation from the abusive person for losses incurred as a result of the violence suffered. This compensation is generally for loss of earnings, medical and dental expenses, moving and accommodation expenses and reasonable legal costs. There is usually a cap on the amount that the victim can receive.

Criminal sanctions for breach of protection order

With the exception of Saint Lucia, domestic violence legislation in the English speaking Caribbean do not expressly criminalize domestic violence. They provide what is called quasi – criminal relief. It is only where there is a breach of an order of the court which was made in the domestic violence proceedings that criminal sanctions apply. The distinction between criminal and civil proceedings reinforces the fact that the domestic violence legislation is geared at protection of the victim and the criminal codes or other criminal law statutes underscore the objective of holding abusive offenders accountable for their unlawful conduct. It is expected that the two legal interventions will be used together to provide a comprehensive legal response to domestic violence.

Behaviour Change

Counselling

Some countries have provisions in the legislation which are geared towards the abusive person’s behaviour change. Counselling is mandatory in a few countries. In The Bahamas and Barbados for example, whenever the court makes a protection order it must also instruct the parties to receive counselling. In other countries such as Belize and Trinidad and Tobago, it is left to the discretion of the court whether any of the parties should be directed to receive counselling. A report from the person conducting the counselling sessions must be provided to the court in some countries. Only a few countries however outline the significance of the counsellor’s report to the determination of the proceedings. In some countries, there is a penalty for refusing the attend counselling when ordered by the court to do so. It is important to note that in many of these countries the victim and the abuser are sent to attend the same counseling intervention and they attend together. In these circumstances, the emphasis of the intervention is more so on partner and family reconciliation than on the offender’s accountability for unlawful use of violence.

Bond of good behaviour

In some countries the court may enter into a bond of good behaviour with the abusive person. This option is to be considered in very limited circumstances and court must seek the permission of the person who was abused before it decides to enter into such a bond. This may be viewed as allowing the victim of domestic violence to exercise some degree of agency with respect to how the court disposes of the matter. There is however the danger that the abused person will be at risk of further violence if the abusive person fails to honour the bond. The bond of good behaviour may be forfeited by the court.

Rehabilitation orders

Belize and St Kitts – Nevis allow for the making of rehabilitation orders. Where a person is convicted of committing an offence under the domestic violence legislation, the court may make a rehabilitation order instead of sentencing the person to imprisonment or imposing a fine. It is only in limited circumstances that the court may make a rehabilitation order. The court must also consider the submissions of the abused person on the matter and may impose certain conditions on the rehabilitation order.

Batterer intervention programmes in the Caribbean

Batterer intervention programmes have been introduced in the Caribbean. One of UN Women’s projects geared towards ending violence against women is the development of a standardized court-based batterer intervention programme for the Caribbean. This programme - Partnership for Peace – A Violence Prevention Programme has been introduced to Grenada, St. Lucia, Trinidad and Tobago and Jamaica, Belize, the British Virgin Islands and Barbados.. The programme ‘articulates principles of perpetrator accountability and women’s human rights to lives of security and autonomy.’ ‘Through the programme men are led to confront negative gender stereotypes of masculinity and the unequal gender power relations that violence expresses and reinforces. The programme advances male responsibility for ending violence against women, not only individually but collectively.’[2]

Police powers and accountability

Mandatory response to reports of domestic violence

The development in Trinidad and Tobago, Dominica, Grenada and Belize is to expressly set out the mandatory response obligations of the police. The police are under a duty to respond to every report of domestic violence. Upon responding, they are to take all reasonable measures to assist the person being abused and should thereafter complete a domestic violence report.

Saint Kitts - Nevis and The Bahamas sets out the likely scenarios that a police officer may face upon intervening in a domestic violence matter and provide guidelines for the police officer as regards how they should respond.

Duty to Assist Victim

Some countries impose an obligation on law enforcement to offer assistance the victim, as well as to ensure that she/he is fully aware of their rights. The rights are supposed to be presented in written form and include:

• The right to request the assistance of a member of the Royal Grenada Police Force, in order to protect the victim and her children;
• The right to be provided with information on how to obtain a protection order.
• The right to request police assistance in locating and  being taken to a place of safety
• The right to be assisted in securing medical treatment

The right to request that your address not be disclosed to your abuser.

Mandatory reporting of incidents of domestic violence

Belize, Dominica, Guyana and Saint Kitts – Nevis make it mandatory for police officers who have responded to a domestic violence complaint to complete a domestic violence report. This reporting obligation is an integral feature of the OECS model legislation and has now come into effect in other states, including Grenada. This report should include the details of the abuse and the police’s investigation of the abuse. In Belize and Dominica, this report forms part of the National Domestic Violence Register.

Duty to ensure proper compilation of domestic violence records

In Guyana, St Kitts-Nevis and The Bahamas a police officer who is in charge of a police station has a legal duty to ensure that all records of domestic violence are properly compiled so as to facilitate easy reference to data.

Powers of entry and arrest

Police officers are authorized to enter any premises where they reasonably suspect that a person has suffered physical injury or is in imminent danger of physical injury. The police are further authorized to assist the victim and arrest the abusive person. With respect to suspected breach of a court’s order, in some countries a power of arrest attaches automatically to the protection order and the police may arrest without a warrant anyone who breaches or who is suspected of breaching any of the terms or conditions of the protection order. In other countries, it is only where the abusive person breaches the protection order by engaging in or threatening to engage in physical violence, that the police may arrest the abusive person. In countries such as Barbados and The Bahamas, it is the abused person who must apply to the court for a power of arrest to be attached to the protection order.

Protection of privacy of persons involved

Privacy during the course of investigation

In Guyana, St Kitts – Nevis and The Bahamas the police officer in charge of the police station has a duty to ensure that the identity of the persons involved in a domestic violence matter is kept confidential. In Guyana, interviews with victims of domestic violence are to be carried out in an area of the police station which provides the utmost privacy.

Hearing in camera

Domestic violence legislation generally authorize the magistrate to exclude the public from the courtroom when hearing a domestic violence matter. In some countries domestic violence proceedings must be heard in camera while in others it is left to the discretion of the magistrate.

Restriction on publications

There tends to be restrictions on the publication or broadcast of identifying information of persons involved in a domestic violence matter which is before the court. This restriction may be removed only in very limited circumstances.

Common law development

Battered women’s syndrome and diminished responsibility

Evidence of battered women’s syndrome can now be adduced to support one of the established defences to murder, diminished responsibility. This is by virtue of the Privy Council’s decision in a case originating from Trinidad and Tobago, Indravani Ramjattan v The State No. 1 (1999) 54 WIR 383.

Tort of harassment

The tort of harassment is now recognized at common law. In a recent case from Jamaica, Needham and Clarke v Senior HCV 0852/2006 (24 Mar 2006), a judge of the Supreme Court held that the common law should now recognise the tort of harassment. He stated that recognition of this tort would ‘complete the circle of torts that deal with conduct directed at persons. It would fill the gap between assaults and the tort of intentional harm.' The elements of the tort of harassment as stated by Sykes J are ‘deliberate conduct directed at the claimant resulting in damage, the damage being anxiety and distress, short of physical harm or a recognised psychiatric illness.’

One of the primary features in domestic violence is harassment. Victims of domestic violence now have an additional basis on which they can get obtain protection under the law.

DEVELOPMENT IN THE LAWS GOVERNING SEXUAL OFFENCES

OFFENCES AND PENALTIES

New Sexual Offences

The new development across the region is to criminalize forced non-traditional sexual activities. Forced oral sex, forced penetration of the anus or vagina by an object are now recognized as:

• grievous sexual assault (Jamaica, Trinidad and Tobago); and

• unlawful sexual connection (Dominica) and Sexual assault (Grenada).

As regards the protection of children and persons suffering from mental disorder hew offences include:

• Sexual touching and sexual grooming of a child (Jamaica)

• Sexual activity with a child, causing a child to watch a sexual act (Guyana)

• Sexual exploitation of a child, (Bermuda)

• Child pornography (Jamaica, Bermuda)

• Caregiver facilitating sexual abuse of persons suffering from mental disorders (Guyana)

Criminalizing non-disclosure of sexually transmitted infection

In a few countries, it is a criminal offence for a person who has a sexually transmitted infection to have sexual intercourse with another person without informing that person of the infection. This is the position in Anguilla, Bermuda and The Bahamas. Saint Lucia criminalizes only the intentional or reckless infection of a person with HIV. The scope of criminalization in Saint Lucia is therefore not as broad as in Anguilla, Bermuda or The Bahamas.

The provisions in Anguilla, The Bahamas and Saint Lucia apply only to HIV. In Bermuda, the criminalization extends to HIV, AIDS and Hepatitis B. In Anguilla, non-disclosure of an infected individual’s HIV status is criminalized where the sexual intercourse is with a minor who is between sixteen and eighteen years of age.

The penalty for having sexual intercourse without disclosing one’s infection ranges from five years imprisonment in The Bahamas to twenty years in Bermuda. In Saint Lucia, the penalty for intentionally or recklessly infecting a person with HIV is imprisonment for ten years.

Defences

In The Bahamas if a person knows or had reasonable cause to believe that the person with whom he agrees to have sexual intercourse with is infected with HIV and then has sexual intercourse with the infected person, the accused person has a sufficient defence to the charge and may not be convicted of the offence. However, in Saint Lucia, if a person consents to being infected with HIV, this is not a defence to the charge for the accused person.

Conventional reservations

The concern that has been expressed as regards these developments, is that criminalization of intentional or reckless transmission of HIV potentially increases the stigma and discrimination associated with HIV/AIDS. Any increased stigmatization of persons living with HIV may further discourage persons from getting tested and also discourage persons from disclosing their status. This may further serve to fuel the epidemic.

The Criminalization of Failure to Report Child Abuse by a Parent/Guardian

More recently, some legislative frameworks have imposed an obligation on parents or guardians to report suspected child abuse. Failure to report, for example, suspicion of a sexual offence in Grenada’s new amendments to their Criminal Code can result in a parent being fined up to fifteen thousand dollars; serving a maximum prison sentence of seven years or both. This provision can have a significant impact on the wilful blindness of parents when incest or other unlawful sexual offences are perpetrated against their young daughters and no preventative measures are taken.

Widening of established offences

The definition of rape has been widened to include:

• forced anal sex (Barbados, The Bahamas);

• forced oral sex (The Bahamas);

• husband forcing his wife to have sexual intercourse with him while he is suffering from a sexually transmitted infection (Jamaica)

Criminalization of marital rape

Rape is a crime but generally Caribbean statutes did not define who could commit it. It was left up to judges and the common law to clarify when the crime could be committed. For many years, judges said that a husband could not commit rape upon his wife except in some exceptional circumstances. In 1991, the English House of Lords in R v R ([1992] 1 A.C. 599) confirmed that this common law position had changed. Marriage was to be viewed as a partnership between husband and wife who were equals in the eyes of the law. The court said that it was anachronistic to assume that a woman had irrevocably given her consent to having sexual intercourse with her husband by virtue of being married. Where a statute speaks of the offence of rape, it must be interpreted to include non – consensual sex by a husband with his wife.

After 1991, many Caribbean countries adopted a measured and conservative statutory position. They restricted the circumstances under which marital rape or sexual assault by a spouse could be committed. The Bahamas, The British Virgin Islands, Belize and most recently Jamaica enacted legislation which limits the circumstances in which a husband can be prosecuted for forcing his wife to have sexual intercourse with him. The Bahamas and The British Virgin Islands further require the consent of the Attorney General for a husband to be prosecuted for non-consensual sexual intercourse with his wife.

Trinidad and Tobago in 2000, Bermuda in 1993 and Guyana in 2010 have brought their laws in line with the current common law position. In Bermuda, the offence is called sexual assault.

Naming of the offence

In some territories, for example, Bermuda and the British Virgin Islands forced sexual intercourse is not called rape. It is referred to as sexual assault.In Anguilla, Antigua, Grenada and Barbuda and The Bahamas, forced sexual intercourse within marriage is called sexual assault.

Redefining rape

• In Trinidad and Tobago, The Bahamas and Guyana, the law governing rape is gender-neutral. The scope of persons who are protected against rape is widened to include men and boys.

• The common law presumption that a boy under fourteen years of age is incapable of committing rape has been abolished in Jamaica, Trinidad and Tobago and a few other countries.

Strengthened penalties for sexual offences

The penalties for sexual offences have been strengthened in a few countries. Trinidad and Tobago increased penalties generally, especially for those sexual offences involving children and with respect to repeat sex offenders. Belize now mandates a sentence of life imprisonment for certain repeat sex offenders.

Compensation for victims

In Guyana and Trinidad and Tobago victims of sexual offences can receive compensation from the convicted person for the monetary loss suffered as a result of the offence. This is a welcomed development as such provisions help to reduce the likelihood of victims accepting bribes for discontinuing with the legal proceedings.

PROTECTING VICTIMS

Recognizing that victims often experience additional trauma during the legal proceedings, many countries have improved their efforts to help reduce the trauma that victims face during the legal proceedings. Below are the key developments:

Conduct of investigations

In Guyana, while at the police station, victims should not be made to repeat the details of the ordeal in front of the accused person. Identification parades should be done via audio video link or by a two way mirror etc.

In camera hearings and restrictions on media reporting

Countries generally restrict the publication or broadcast of the details of the offence which is before the court as well as the identifying information of the persons involved in the case. These restrictions may be removed only in very limited circumstances. Proceedings concerned with certain sexual offences, especially those involving minors are to be held in camera (in private) unless the court directs otherwise. The use of paper committals is gaining increased recognition and Antigua has also adopted that procedure with the finding that it has helped to reduce delay quite significantly.

Abolition of preliminary inquiries

Guyana has abolished preliminary inquiries with respect to offences under the Sexual Offences Act. A paper committal is held instead. Victims are spared the trauma of having to orally repeat the details of the offence before the case is actually heard. 

Special arrangements for giving evidence

In Guyana, the court can allow a witness to give evidence via audio-visual link and can screen the witness so that she is prevented from seeing the accused person. Guyana has gone a bit further than most other Caribbean countries as the court may prohibit the wearing of gowns when a witness is giving evidence. The Sexual Offences Act 2010 of Guyana further speaks of the mandate to have a special court environment for sexual offence cases.

Special protection for child victims and child witnesses

During the court proceedings

Some countries have special measures in place to protect child victims and child witnesses. Bermuda, Trinidad and Tobago and Dominica allow child victims to give video-recorded evidence. Guyana further allows child witnesses to be examined through an intermediary. In Guyana, the court may direct that anatomically correct dolls are to be used when taking evidence from child witnesses.

Mandatory reporting requirement

There is a legal duty on parents, guardians and health care workers in Anguilla, The Bahamas and Trinidad and Tobago to report suspected cases of child sexual abuse to the police. Failure to report suspected cases of child sexual abuse amounts to a criminal offence.

Divestment of authority

In countries such as Anguilla, Antigua, Barbados and The Bahamas, parents and guardians who are in any way responsible for the sexual abuse of their minors may be divested of all authority over them. Guyana and Trinidad and Tobago further make it a criminal offence for a parent or guardian to prevent a minor from participating in the court proceedings. In Trinidad and Tobago, where a minor is prevented from testifying at the proceedings, the court may nevertheless admit the minor’s statement as evidence.

PROVING SEXUAL OFFENCES

Recent complaint evidence

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.[3] These rules are known as the common law rules regarding recent complaint.

These rules have been abolished in some countries for example, Antigua, Bermuda and Trinidad and Tobago. Other countries such as Barbados and Guyana provide guidance to the court as to how it should direct the jury on the matter of recent complaint.

No need for corroboration warning

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. 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. Trinidad and Tobago, Dominica, Bermuda and Jamaica explicitly provide in the relevant legislation that judges are not mandated to give a corroboration warning in sexual offences cases.

Limits on use of past sexual history of victim

Most countries now limit the use of a victim’s sexual history in sexual offences cases. The court may allow the accused person to mention the victim’s prior sexual activities with him but may not mention her sexual activities with other persons except with the permission of the court.

TESTING, TREATING AND KEEPING TRACK OF PERPETRATOR

Testing for HIV and sexually transmitted diseases

Victims of sexual violence are susceptible to sexually transmitted infections from the person who commits the offence against them. Guyana and Trinidad and Tobago allow for the medical examination/ testing for HIV of the convicted person. In Trinidad and Tobago this medical examination is mandatory.

Rehabilitation and other treatment

In some countries the court may order the convicted person to receive rehabilitative treatment and counselling. In Guyana for example, the court can order a person convicted of a sexual offence to undergo drug treatment and drug testing or to undergo rehabilitation. The court may also order the convicted person to receive mental and psychological treatment. A counselling or rehabilitative order is mandatory in some countries. In Belize for example, the court must order persons who have been convicted of certain sexual offences on one or more occasion, to undergo counselling and receive medical or psychiatric treatment.

Sex offenders’ registry and notification requirements

In Jamaica there is provision for the establishment for a sex offender registry. The particulars of every conviction under the Sexual Offences Act are to be furnished to the registry.

Notification requirements

Persons who are convicted of sexual offences in Belize, Bermuda, Jamaica and Trinidad and Tobago are subject to notification requirements. A convicted person is required to provide the police in his local area with his name and aliases, home address and date of birth. He should also provide further notification of any change of address etc. Failure to abide by the notification requirements constitutes a criminal offence.

Supervision after sentence

Before the court determines sentencing for certain sexual offences in Bermuda, it may allow for an assessment of the convicted person to be done over a maximum period of sixty days. The assessment report influences the court’s decision as to whether the convicted person should be supervised within the community after he has served his sentence. The period of supervision may lasts for up to ten years.

DECRIMINALIZATION OF SAME-SEX SEXUAL RELATIONS

Consensual anal sexual intercourse between adults is generally criminalized in the English – speaking Caribbean. A few countries for example, Bermuda and The Bahamas have relaxed their laws in this regard. In these countries, consensual anal sexual intercourse between adults becomes a criminal offence only where it is done in public. In The Bahamas, it is a criminal offence for an adult to have consensual anal sexual intercourse with a minor whether done in private or public.

There are generally harsh penalties for the offence of buggery. For example, in Barbados, the maximum penalty is imprisonment for life. Belize, Dominica and Saint Lucia go a bit further by not only criminalizing such sexual relations but by providing that convicted persons may be sent to a psychiatric institution for evaluation and treatment. As to whether such provisions are appropriate is open to debate.

PROTECTION FROM SEXUAL HARASSMENT

Legislative developments

Legislative development across the English-speaking Caribbean with respect to protection against sexual harassment has been slow. As of 2010, only a few countries have enacted legislation which protect against sexual harassment. These are: Saint Lucia, Belize, The Bahamas, The British Virgin Islands and Guyana. Anguilla criminalizes sexual harassment of minors in its Criminal Code. Trinidad and Tobago does not have legislation which specifically deals with sexual harassment but has enacted the Offences against the Person (Amendment) (Harassment) Act 2005 which makes harassment a criminal offence.

In Saint Lucia and The Bahamas sexual harassment is a criminal offence. Saint Lucia provides a wide range of remedies for victims of sexual harassment (damages, reinstatement, employment, declaration etc.). In The Bahamas, the consent of the Attorney General must be obtained for a person to be prosecuted for sexual harassment.

Developments at common law

In countries which do not have sexual harassment or anti-discrimination legislation, the innovative means which can be used to deal with this ‘gap in the law’ is through recourse to the common law, in particular the law of torts (duty of care) and the law of contract (breach of implied trust, constructive dismissal etc.). In Jamaica, there has been a recent and significant development at common law. In a recent case Needham and Clarke v SeniorHCV 0852/2006 (24 Mar 2006), a judge of the Supreme Court held that the common law should now recognise the tort of harassment. He stated that recognition of this tort would ‘complete the circle of torts that deal with conduct directed at persons. It would fill the gap between assaults and the tort of intentional harm.' The elements of the tort of harassment as stated by Sykes J are ‘deliberate conduct directed at the claimant resulting in damage, the damage being anxiety and distress, short of physical harm or a recognised psychiatric illness.’

Persons who are being sexually harassed may therefore seek relief from the courts by relying on the tort of harassment.

CHALLENGES IN ADDRESSING GENDER-BASED VIOLENCE IN THE CARIBBEAN

Despite the positive development in the laws governing gender-based violence in the English-speaking Caribbean, there are challenges which restrict victims’ access to justice.

Disparity between law and its implementation

It has been observed that there are wide and persistent gaps between the ‘law on the books’ and the ‘law in action’. The practices of the courts, police and other law enforcement personnel often operate to dissuade people from executing their rights and achieving the protections which the law affords them.[4] A study conducted by Mindie Lazarus-Black on the implementation of the domestic violence legislation in Trinidad found that although there were many applications for protection orders, majority of the applications were withdrawn or dismissed and only a few applicants receive orders for extended protection. From the sample, over 77 percent of the applications was dismissed or withdrawn, leaving only about 23 percent of applications receiving some form of protection from the court. It was also found that cases take a considerable time. [5] Recently conducted country studies undertaken as part of a State Accountability Project (Commissioned by UN Women and the Regional Association of Commissioners of Police) also underscored the view that implementation of the law was also compromised in relation to sexual offences. [6]

Systemic Delay in the Prosecution of Offences

Recent research in a number of Caribbean countries, including Antigua, St Kitts & Nevis; Jamaica; Belize and Grenada has confirmed that delay in the investigation and prosecution of cases has an adverse effect on the outcome of cases involving gender based violence. Victims are negatively affected by the delay that occurs in the investigation of cases at the law enforcement stage, as well as the pretrial delay that is caused by unnecessary adjournments; the continued reliance on preliminary inquiries and other inefficiencies.  Delay not only prolongs trauma but also adversely affects recollection of facts due to the passage of time. This is particularly relevant because of the vulnerability of victims who have experienced domestic or sexual violence.

Pressure to drop charges

Many survivors of domestic violence and sexual violence who initiate legal proceedings are often pressured to discontinue legal proceedings. This pressure stems from family members, members of the community, the perpetrator or others acting on his behalf. Uncertainty about the legal proceedings, feelings of embarrassment and shame often discourage individuals from seeking recourse through the legal system.

Inappropriate use of Cash Settlements

Criminal cases are premised on the protection of the public’s interest and are therefore not private matters like civil cases. To that extent, the settlement of criminal cases where the victim is asked to accept money in exchange for withdrawing charges against the offender violates the very tenets of criminal law and raises concerns about bribery. Studies have indicated that the offensive practice of cash settlements is being utilized to prevent the prosecution of especially sex offences and this seriously prejudices the justice responses to gender based violence.

Lack of Specialized Interventions

Given the vulnerability of victims and the general nature of these types of offences, specialized responses are often necessary, but yet are noticeably lacking across the Caribbean. Too few Police and Prosecution Departments have specialized units that are dedicated to the investigation of domestic and sexual violence involving “special victims”. Even where such units have been established, there are often not sufficiently equipped to conduct the specialized interventions so critical to these offences. Special training to enhance capacity at the level of investigation and prosecution is important and plays a major role in informing the victim’s willingness or reluctance to proceed with the case.

Culture of reconciliation

The observation that Trinidad and Tobago’s culture of reconciliation holds that family stability is important and that family troubles are private[7] holds true for many other English-speaking Caribbean countries. Many women feel guilty for sending their partners and fathers to their children to jail. They are also cognizant of the economic implications this may have for the family especially where the perpetrator is the head of the household.

It is not uncommon for survivors of sexual violence to be pressured into accepting bribes from perpetrators or others acting on the perpetrators behalf to refrain from pursuing legal proceedings or to discontinue the proceedings where they have already begun. Survivors who are in dire economic circumstances often accept bribes rather than seek to go through what is perceived as a very complex and intimidating legal process.

Gender-based violence ‘ghettoized’ in legal reform

It has further been observed that domestic violence has been pigeonholed as a family law matter. This has meant that sometimes the police, the courts and lawmakers have failed to develop laws and policies to address it as a criminal matter, sometimes with deadly consequences. Further, lawmakers give little attention to the impact of gender-based violence in other family law proceedings, like custody and access to children and distribution of property.[8]

Legislation ignores the realities of same - sex relationship

The domestic violence laws tend to ignore the reality that persons in same-sex relationships may also be victims of domestic violence. Except in a few territories where they may be able to seek relief as a member of the abusive person’s household, persons in same-sex relationship cannot rely on the domestic violence laws for protection..

Legislation alone is not enough

Recurring reports across the region of women who have been harmed or killed even though they had initiated legal proceedings against their abusive partners (or former partners) highlights the reality that legislation alone is not enough to eradicate the scourge of domestic violence from our societies. Domestic violence laws in each country must be complemented by a sustained effort by the government and the relevant NGOs to address stereotypical notions about accepted male and female behaviour.

RECOMMENDATIONS FOR LEGAL REFORM

I.DOMESTIC VIOLENCE

It is recommended that the law should:

Provide a comprehensive definition of domestic violence by expressly protecting against physical violence, sexual violence, psychological abuse and financial abuse

Extend the scope of persons protected under the domestic violence legislation to include: persons living together as man and wife although not legally married; persons who are or were in a sexual relationship although not living together as man and wife; relatives and persons of the same sex who in a sexual relationship

Provide for financial support and compensation for survivors of domestic violence from the abusive person

State clearly the duties and powers of the police under the domestic violence legislation

Expressly provide that if the conduct of the perpetrator amounts to a criminal offence, the criminal law applies

Make clear the significance of the counsellor’s report to the final disposition of the matter where counselling is ordered or recommended by the court[9]

Provide for the making of rehabilitation orders. These rehabilitation orders should not necessarily be made in lieu of sentencing but rather should complement the sentence or orders of the court.

Allow for the court’s making of a protection order to be introduced as a material fact in subsequent legal proceedings such as family law family law proceedings, like custody and access to children and distribution of property

II.SEXUAL VIOLENCE

It is recommended that the law should:

Expressly criminalize marital rape and remove restrictions with respect to the circumstances in which a husband can be prosecuted for sexual assault or marital rape

Provide equal protection against sexual violence for men and women who suffer from mental disorders

Clearly state the circumstances in which a person suffering from a mental disorder is deemed incapable of consenting to sexual activity. Jamaica’s recent sexual offences legislation provides a good model in this regard.

Allow for counselling as opposed to imprisonment of minors who commit certain sexual offences

Limit the circumstances in which a court may order a person convicted of certain sexual offences, such as buggery (between consenting adults) to committal to a psychiatric institution for evaluation and treatment.

Provide greater protection of boys from sexual violence and sexual exploitation as the trends in many Caribbean societies reveal that young boys are becoming increasingly at risk for sexual abuse and sexual exploitation by both men and women

Address the disparity in the penalties for men and women where they commit sexual offences against girls and boys

Expressly abolish discriminatory provisions in the trial of sexual offences, in particular: (i) rules regarding recent complaint; (ii) allowing evidence of the complainant’s sexual history; (ii) corroboration warning

Strengthen the protective provisions for witnesses to and complainants of sexual offences during the legal proceedings

Allow for compensation to the complainant from the perpetrator who is convicted a sexual offence

Provide for notification requirements for sex offenders

III.SEXUAL HARASSMENT

Need for specific comprehensive sexual harassment legislation

It is imperative that the law of each country expressly protects against sexual harassment. It is recommended that the law:

Provide a comprehensive definition of sexual harassment. One model in this regard is the definition of sexual harassment as

“unwelcome sexually determined behaviour in both horizontal and vertical relationships, including in employment (including the informal employment sector), education, receipt of goods and services, sporting activities, and property transactions”[10]

Provide that unwelcome sexually determined behaviour includes

“(whether directly or by implication) physical conduct and advances; a demand or request for sexual favours; sexually coloured remarks; displaying sexually explicit pictures, posters or graffiti; and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature”[11]

Allow for a wide range of remedies including, damages, reinstatement, employment, declaration etc.

Have provisions which seek to protect the privacy of the complainant

v Expressly criminalize conduct which amounts to threatening or intimidating the complainant because of the complainant’s recourse to and participation in the legal proceedings

IV.LAW ALONE IS NOT ENOUGH

To effectively address gender-based violence, reform of the laws governing gender-based violence must be complemented by other sustained efforts by each State. It is recommended that these efforts include:

• creation and use of investigative and procedural manual for police officers
• creation and use of manuals for social and health workers with respect to domestic violence and sexual violence cases. Social and health workers should be guided by specific protocols on domestic violence and sexual violence which could highlight ‘clinical profiles of victims; referral systems; screening questions and legal information’
• training of police officers and judicial officers with respect to gender-based violence
• establishment and sustained operation of specialized police units to deal with domestic violence and sexual violence cases
• education and sensitization of the public with respect to gender-based violence
• inclusion as part of the curriculum in public educational institutions age-specific information with respect to gender-based violence for students at the primary and secondary levels
• increased allocation of resources to victim support services

extension of and improvement in the legal aid services available with respect to gender-based violence 

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[1] Sealy-Burke, J Reform of Child Protection Law in the OECS and Turks & Caicos Islands (Report prepared for the Family Law Reform and Domestic Violence in the Eastern Caribbean: Judicial and Legislative Reform Project, 2002)

[2] See UNIFEM Caribbean Office, Programmes – Ending Violence against Women, Recent and Current Projects: Partnership for Peace – A Domestic Violence Intervention <http://car.unwomen.org/> accessed 31 October 2010

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

[4] See M. Lazarus-Black., Everyday Harm: Domestic Violence, Court rites, and cultures of reconciliation, (University of Illinois Press, Urban and Chicago 2007) p. 36; Lazarus-Black, M and Merry SE (2003), “The Politics of Gender-Violence: Law Reform in Local and Global Places”, Law and Social Inquiry – Journal of the American Bar Foundation, 28(4): 931 – 939.

[5] Strengthening State Accountability and Community Action for Ending Violence Against Women in the Caribbean;  Baseline Study Reports for the Governments of Antigua, St. Kitts and Grenada on Law Enforcement and Prosecutorial Responses to Sexual Assaults (Commissioned by UN Women) 2009-2010.

[6] M. Lazarus-Black., Everyday Harm: Domestic Violence, Court rites, and cultures of reconciliation, (University of Illinois Press, Urban and Chicago 2007) p. 36.

[7] M. Lazarus-Black, Everyday Harm: Domestic Violence, Court rites, and cultures of reconciliation, (University of Illinois Press, Urban and Chicago 2007).

[8] T. Robinson, Access to Justice for Women who are Victims of Violence in the Caribbean, Presentation made at the Organization of American States Inter-American Commission on Human Rights, Work Meeting, The Protection of Women’s Rights in the Inter-American System: An analysis of Access to Justice, Washington, DC April 19-20, 2005; T. Robinson, An analysis of legal change: law and gender-based violence in the Caribbean, Presentation made at the Caribbean Judicial Colloquium on the Application of International Human Rights Law at the Domestic Level, Nassau, Bahamas May 17 – 19, 2004.

[9] See R. Clarke and J. Sealy-Burke, Eliminating Gender-Based Violence, Ensuring Equality: UNIFEM/ECLAC Regional Assessment of Actions to End Gender-Based Violence in the Caribbean (UNIFEM 2005) p. 17.

[10] United Nations Economic & Social Affairs Division for the Advancement of Women, Handbook for Legislation on Violence against Women (United Nations New York, 2010) p. 27

[11] United Nations Economic & Social Affairs Division for the Advancement of Women, Handbook for Legislation on Violence against Women (United Nations New York, 2010) p. 27