Access to Justice for Women who are Victims of Violence in the Caribbean

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Lynette Elfrieda Simmons
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1 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 Access to Justice for Women who are Victims of Violence in the Caribbean Law reform Achievements 1. There is no single issue on which there has been greater feminist engagement with the state in the English speaking Caribbean region in recent times than violence against women. In the nineties a good deal of that energy was devoted law reform. Domestic violence legislation enacted almost everywhere 2. The new laws allow women to apply for protection orders and relief ancillary to protection orders. They are now the most important legislative initiative to advance the rights of women in the 1990s as well as the most significant family law reform effort in the region in that period. 1 Reform to sexual offences legislation in about one-half of the Caribbean 2 3. New legislation has strengthened the penalties for sexual offences. For example, the Belize Criminal Code now provides a mandatory sentence of life imprisonment for habitual sex offenders. 4. It has increased the range of sexual offences, by including new offences such as grievous sexual assault 3 and unlawful sexual connection. 5. It has imposed new requirements to better protect victims of violence. For example, the Trinidad and Tobago Sexual Offences (Amendment) Act 2000 provides for mandatory medical examination of the accused in certain sexual offences. 1 Domestic Violence (Summary Proceedings) Act 1999 (Antigua and Barbuda); Sexual Offences and Domestic Violence Act 1991 (Bahamas); Domestic Violence (Protection Orders) Act, 1992, Cap 130A (Barbados); Domestic Violence Act 1992 (Belize); Domestic Violence Act 1997 (Bermuda); Domestic Violence Summary Proceedings Act 1992 (British Virgin Islands)Summary Jurisdiction (Domestic Violence) Law 1992 (Cayman Islands); Domestic Violence Act 2001 (Dominica); Domestic Violence Act 2001(Grenada); Domestic Violence Act 1996 (Guyana); Domestic Violence Act, 1995 (Jamaica); Domestic Violence Act 2000 (St. Christopher-Nevis); Domestic Violence (Summary Proceedings) Act 1995 (St. Lucia); Domestic Violence and Matrimonial Proceedings Act 1984, Domestic Violence (Summary Proceedings) Act 1995 (St. Vincent and the Grenadines); Domestic Violence Act 1999 (Trinidad &Tobago). 2 Sexual Offences Act 1995 (Antigua and Barbuda); Sexual Offences and Domestic Violence Act 1991 (Bahamas); Sexual Offences Act 1992, Cap 154 (Barbados), Criminal Code (Amendment) Act 1999 (Belize); Sexual Offences Act 1998 (Dominica); Sexual Offence and Domestic Violence Act 1991 (Bahamas); Sexual Offences Act 1998 (Dominica); Sexual Offences Act 1986, Amendment Act 2000 (Trinidad and Tobago). 3 Trinidad and Tobago Sexual Offences Amendment Act 2000, s. 3. 1

2 6. There have been significant reforms to the way in which the courts conduct hearings in dealing with some forms of gender based violence to ameliorate the victimisation complainants experienced in the courts. 4 The reformed sexual offences laws regionwide provide for in-camera hearings. Limits have placed on the use of the past sexual history of the victim. Provision has been made to protect the privacy of the victim and sometimes the accused. 7. Controversial provisions like gender neutral rape laws have also been included in some jurisdictions. 5 Some, but very slow implementation of sexual harassment legislation 6 8. Laws dealing with sexual harassment have been enacted in a few countries with very variable treatment. It has been made a criminal offence in the Bahamas and St. Lucia under the new Criminal Code, addressed through anti-discrimination laws in St. Lucia and Guyana (and by implication Trinidad and Tobago) and only in Belize is it the subject of specific legislation similar to the model legislation. Modest common law developments 9. In Trinidad and Tobago, the Privy Council ruled that evidence of battered woman s syndrome could be adduced to support one of the established defences to murder In Grenada, the Privy Council ruled that there was no need for a mandatory corroboration warning in sexual offences In a St. Lucian case, the High Court stated that it was constitutionally imperative for the state to address domestic violence. Barrow J (Ag.) said that this arose from the constitutional right of everyone to life, liberty, security of the person, 4uqlaity before the law and the protection of the law. 9 4 There is the infamous account of a rape trial in progress at the Supreme Court Building in Kingston, Jamaica on January A 22 year-old woman and mother from a rural parish, travelled into Kingston to give evidence. She was the complainant. Her voice was barely audible during her evidence and the judge repeatedly asked her to speak louder. Increasingly annoyed at his inability to hear what she was saying, he threatened to detain her if she did not speak up. At the lunch time adjournment, he ordered that she be examined by a doctor overnight and told the police to take her safely, give her food and keep her at a safe place. This meant she was being remanded in custody to the Fort Agusta Prison. The judge s explanation was that this was in her interest because he was putting in place an arrangement that would allow her to obtain medical treatment and attention. He subsequently changed his mind, reportedly after speaking to the Chief Justice, and asked for the young woman to be released, but by this time it was said to be too late to have her released from the prison that same day. 5 See e.g. Trinidad and Tobago Sexual Offences (Amendment) Act 2000: (1) A person ( the accused ) commits the offence of rape when he has sexual intercourse with another person ( the complainant ) (a) without the consent of the complainant where he knows that the complainant does not consent to the intercourse or he is reckless as to whether the complainant consents: or (b) with the consent of the complainant where the consent (i) is extorted by threat or fear of bodily harm to the complainant or to another; (ii) is obtained by personating someone else; (iii) is obtained by false or fraudulent representation as to the nature of the intercourse; or (iv) is obtained by unlawfully detaining the complainant. 6 Protection Against Sexual Harassment Act 1996 (Belize); Bahamas Sexual Offences and Domestic Violence Act 1991 (Bahamas); Anti-discrimination Act 2001 (BVI); Prevention of Discrimination Act 1997 (Guyana); Equality of Opportunity and Treatment in Employment and Occupation Act 2000, Criminal Code 2004 (St. Lucia). 7 Indravani Ramjattan v The State No. 1 (111999) 54 WIR R v Gilbert (2002) 61 WIR Francois v AG of St. Lucia (unreported) 24 May 2001, HC, St. Lucia. 2

3 Best practices: Model laws Model legislation by the CARICOM Women s Desk 12. The then Women s Desk at CARICOM developed model legislation in a number of areas at the end of the 1980s to address women s inequality, including domestic violence, sexual offences and sexual harassment. The model legislation has been very influential in the passage of domestic violence and sexual offences legislation This is a double edged sword because nation states replicate the weaknesses of the model, or where the model is weak, they are unlikely to adopt it. As seen below a national improvement on the model, can produce a new model. Trinidad and Tobago Domestic Violence Act 14. Though not perfect, this is one of the finest examples of feminist lawmaking in the Caribbean. Its ideological goal is clear and transparent. This new law has been anxious to say that the concern is not only about physical battering within marriage. It offers a much wider definition of family, a broader understanding of what behaviour constitutes abuse and a wider range of ancillary relief to victims. It also strengthens police protection of victims of violence by obligating the police to respond to domestic violence complaints, and by strengthening their powers to intervene and requiring them to keep a careful record of all reports. 15. It has now become the model for domestic violence law reform and influenced the Grenada and Dominica Acts and is being considered in Suriname. Challenges Law reform patchy, sluggish and little ongoing review 16. Law reform is very patchy across different forms of gender-based violence and, outside of Trinidad and Tobago and Jamaica to some extent, there is little ongoing review of existing legislation which is now in need of reform. 17. Most troubling is the inertia that has now developed around gender-based violence law reform, despite the gaps that exist. Gender-based violence ghettoised in legal system 18. The statutory regimes to address gender based violence sometimes look like a victim of their own success. They are now part of a discrete, even prominent taxonomy, and it is difficult to show the legal significance of the violence outside of the parameters of the legislation. 19. Domestic violence in particular has been pigeonholed as a family law matter and 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. 20. Likewise, there has been little attention given by lawmakers to the impact of genderbased violence in other family law proceedings, like custody and access to children 10 Go to 3

4 and distribution of property. Women in some Caribbean countries also have limited access to other forms of relief like financial support and custody when they are making applications for protection orders. The administration of justice Achievements Regional police training successfully undertaken 21. Approximately 5000 police officers (one account says one third of the total regional force) across the region have received training on gender-based violence executed by the Caribbean Association for Feminist Research and Action (CAFRA) with the support of the Association of Caribbean Commissioners of Police (ACCP). 11 Social service delivery strengthened through family courts 22. Family courts, designed to better integrate social services within the administration of justice, exist in a number of Caribbean countries. They have generally helped to facilitate a more multi-disciplinary approach to gender-based violence. 12 Increased access to legal aid 23. Reforms to legal aid regimes and the introduction of legal aid clinics have marginally improved access to justice for victims of gender based violence in some countries. In the BVI, Dominica, Grenada and Trinidad and Tobago, there is legal aid for victims of domestic violence seeking relief in the lower courts. 13 Best Practice Court Advocacy Programme at the Antigua and Barbuda Directorate of Women s Affairs 24. The Directorate runs a court advocacy programme which gives applicants for protection orders under the new domestic violence law an advocate to help them through the process. 14 Assistance is given to women in complicating the application forms and drafting a statement which is annexed to the application. UN ECLAC research suggests a high degree of success from this initiative. 11 ECLAC/CDCC/CIDA Regional Conference on Gender-Based Violence and the Administration of Justice, February 2003, Port of Spain 12 See the ECLAC UNIFEM, Eliminating Gender-Based Violence, Ensuring Equality: ECLAC/UNIFEM Regional Assessment of Actions to End Violence Against Women in the Caribbean (ECLAC, 2003). Families and Children s Act 1998 (Belize); Child Protection Act 1998 (Grenada); Probation and Child Welfare Act (St. Kitts-Nevis); The Children Amendment Act (Trinidad and Tobago). 13 Sue Santedicola, John Epp, The Access to Justice and Information Technology Project: First Annual Report (2004), Table ECLAC (2001). An Evaluative Study of the Implementation of Domestic Violence Legislation: Antigua and Barbuda, St. Kitts-Nevis, St. Lucia and St. Vincent and the Grenadines. 4

5 Challenges Legislative reform not always effective 25. There is clear evidence in some jurisdictions that very low percentages of applications for protections orders are successful and that the process, which was designed to provide cheap and speedy relief, is in fact attended by many unnecessary delays. In St. Vincent and the Grenadines in 2001, for example, 64% of applications were withdrawn or dismissed or struck off for non-appearance and in only 14% of cases were order granted. 15 Many magistrates act very conservatively in granted the orders permitted under domestic violence legislation. For example, in St. Lucia in 2000, only 7% of all orders gave occupation rights to the victims of violence, even though we know that access to housing is a crucial concern for victims The ineffectiveness of the reformed legal process is demonstrated by the continuing claims by Caribbean women for asylum status in Canada, especially, based on gender persecution at home. Poor infrastructure to support legislation 27. There are complaints across the region about the failure to provide the infrastructure to support new legislation. For example, many domestic violence statutes provide that the courts can order counselling, but in some jurisdictions these services are inadequate. 28. Poor women s access to justice is significantly compromised by the failure of the state to provide adequate shelters. Overall poor access to legal services 29. Poor access to legal services undermines the effectiveness of new remedies dealing with gender-based violence. In 98% of cases in St. Lucia Family Court in 2000 there was no legal representation for the applicant, in 97% no legal representation for the respondent. 17 In a common law system where a good deal of law is made through judicial decisionmaking on the basis of reasoned arguments by lawyers, the absence of effective legal representation is very significant. 15 Ibid Ibid. 17 OECS-CIDA Judicial and Legal Service Reform Project, OECS Case Profile Review 2000: Am Analysis of Criminal and Civil Cases in the Magistrates Court of the OECS (August 2002). 5

6 Gender ideologies Achievements Many women are claiming a right to be free from intra family violence by accessing justice 30. It is widely acknowledged that women are claiming the right to be free from violence by making applications for protection orders. These applications now generally constitute, behind child support, the largest in courts dealing with family law. In the St. Lucia Family Court in per cent of the applications before that court were for protection orders in respect of domestic violence. 18 In 2000, 24.2% of the persons coming to the Grenada Legal Aid and Counselling Clinic, a nongovernmental organisation, for assistance were seeking help in dealing with domestic violence In this sense, the ideological project of laws dealing with gender-based violence to attach new meaning and import to ht abusive behaviour by naming it as a legal harm and by exploding public/private divides that made it legally insignificant has had some success. Challenges Patriarchal ideologies persist 32. The persistent anxiety is that in spite of law reform, patriarchal ideologies that produce violence are proving difficult to change. The Government of Trinidad and Tobago in its last report to the CEDAW Committee said: Patriarchal ideologies and notions of male dominance still persist and are proving difficult to change. While legislation has been enacted and measures are being taken to address this situation, challenges exist in shifting the sociological context of gender equality. 20 No strong link made by lawmakers and judges between gender-based violence and gender equality 33. The goal of gender equality is the substratum of all laws dealing with gender violence. Figuring gender-based violence in terms of rights and equality strengthens the legal response and certainly can aid the development of the common law. very few judges or even lawmakers are making this explicit, thus undermining the potency of the initiatives to give women greater access to justice in respect of violence. 18 OECS-CIDA Judicial and Legal Reform Project, OECS Case Profile Review 2000: An Analysis of Criminal and Civil Cases in the magistrates Courts of the OECS August Grenada Legal Aid and Counselling Clinic, Annual Report 2000 (2001). 20 Trinidad and Tobago, Initial, Second and Third Periodic Report under the Convention on the Elimination of Discrimination Against Women (2000), para

7 Lessons learned and Recommendations Regional approaches help 34. A universal lesson is that regional approaches and regional actors have strengthened the response of Caribbean small states at all levels. CARICOM s leadership of law reform through the model legislation was instrumental. Regional organisations such as CAFRA and the ACCP have made significant contributions to capacity building. 35. It is recommended that CARICOM be encouraged to resume a leadership role in monitoring law reform, encouraging periodic review of existing laws by member states and by revising model legislation. Also that CARICOM strengthens its own human rights framework by adopting a human rights treaty that adequately protects the rights of women and can give rise to relief in the recently established Caribbean Court of Justice. Evaluation and Data Collection must be prioritised 36. It is not enough to say we reformed law, trained personnel or created new institutions, we must know the impact these have had on access to justice before proceeding further. Significant work has been done over the last two decades in the Caribbean, but further progress has been impeded by the absence of systematic evaluation measures designed to strengthen access to justice. For example, it is difficult to discern the concrete outcomes of the wide-scale police training. We know very little about the impact of sexual offences law reform on the administration of justice. More attention has been given to domestic violence, but even here there are gaps in what we know about the effectiveness of the existing legal remedies. We have embarrassingly little to tell us if what we have been doing is making a difference. 37. As the risk of recommending yet another study, it is recommended that member states and regional organisations be encouraged to fully investigate the impact of existing reforms on access to justice for women victims of violence. Part of this process will involve the implementation of protocols to collect data on gender based violence. Capacity building in the justice sector necessary 38. There is a need for sustained judicial education and training for the legal profession. Both are crucial to the development of the law in common law systems. There is a need for not only improved legal aid, but the encouragement of public interest litigation relating to issues of gender-based violence. 39. Many women who are victims of violence approach the inferior courts (magistrate s courts, family courts) for relief. A strengthened magistracy and lower court system will improve women s access to justice. 40. It is recommended that member states be encouraged to mainstream concerns about gender-based violence in their justice improvement initiatives, especially those concerned with improving court efficiency and access to justice. 7

8 Sustained public education necessary 41. Public awareness of legal remedies and respect for the law must be more deeply cultivated, along with general public education about gender based violence. Tracy Robinson Lecturer Faculty of Law University of the West Indies Cave Hill Campus Barbados 8

Caribbean Judicial colloquium on the Application of International Human Rights law at the Domestic Level DATES : May 2004

Caribbean Judicial colloquium on the Application of International Human Rights law at the Domestic Level DATES : 17-19 May 2004 Caribbean Training Workshop for Government Officials Responsible for preparing