This commentary of a number of NGOs [1] working on gender-based violence is prepared as a follow up to the Commentary presented on 5 February, 2019 at the first sitting of the senate on the Sexual Offences (Amendment) Bill of 2019, which seeks to establish a National Sexual Offenders Registry.
Preamble:
With past amendments to sexual offences legislation, key reforms were achieved – removal of corroboration warning; restrictions on examination of the sexual history of the complainant; criminalisation of rape within marriage; mandatory reporting of suspected sexual offences against children; and the establishment of a sexual offence register. Yet these improvements do not seem to have translated sufficiently into a well-functioning justice system for victims. The current proposed amendment presents another opportunity for stakeholders and legislators to collaborate in crafting more effective legislation.
The majority of victims of sexual violence do not report these violations to the police. The 2018 IADB study estimates that the prevalence of non-partner sexual abuse by women in Trinidad and Tobago was 19 percent over their lifetime. That study reveals what those who work with victims know only too well – most of these crimes were not reported to the police. Of the 16% who did report, a case was opened in just over 50% of the reported incidents. Further, only 17% of the cases that were opened led to a conviction [2]. Attrition within the administration of justice of sexual offences cases is evident, with resulting impunity for such offences.
Beyond under-reporting, the 2017 report of the Judiciary also points to delays in the hearing and determination of sexual offence cases, a reality which must act as a deterrent to the pursuit of justice on the part of sexual offence victim/survivors. The UWI IGDS Break the Silence Project indicates that sexual offences against children are primarily committed by those known to them – uncles, grandfathers, cousins, step-fathers, religious leaders, etc. Yet, sexual violence against children is difficult to address because of a number of inter-locking factors:
familial economic dependence on perpetrators
fear of shame and stigmatisation
culture of adult male predation of younger-age children, as seen in the teenage girls & pregnancy data [3],
lack of credibility and support given to children who report abuse
There is therefore much to be fixed in the state response to sexual offences. We need to prioritise:
a comprehensive approach which places victims at the centre of integrated and well-resourced services;
improved access to justice, including through an active, sensitive and accountable system of support and oversight for police to ensure due diligence, timely investigations and consequential actions with regard all sexual offence reports;
timely hearing and determination of sexual offence cases (in particular those involving minors) in a court with dedicated expertise and social services;
development and implementation of a restorative justice approach which focuses on healing, on social norms change consistent with gender equality, and psycho- educational rehabilitation for offenders; and
a robust system of data collection and analysis that allows for planning and continuous improvement of the quality of justice delivered.
It is worth reiterating that sexual harassment and violence is in part an expression of power, control, and of unequal social relations- whether based, for example, on sex, gender, age and/or income. The fact that the majority of perpetrators are men should catalyse state policies that promote positive masculinities grounded in gender equality. Personal accountability for the use of violence which is accomplished through punishment in the criminal justice system has to be complemented by prevention approaches.
Sexual Offender Register
While as NGOs who work on gender based violence and human rights we acknowledge the potential value of a Register, we are concerned to support legislative amendments that will have a positive impact and which do not expose third parties to foreseeable harm.
We wish to support effective legislation that will be implemented for the good of our society, with its socio-economic, cultural and size specifics.
This supplementary submission makes recommendations on the following:
Objectives of register
What should be registrable offences
The process of determining the nature and duration of presence on the register
Public access to the register
Removal from the register
Process for improving the legislation
1. Objective: The Register is primarily a tool for monitoring and tracking sex offenders following their release into the community to prevent recidivism. It should also be used as a channel for psycho-educational interventions for perpetrators both during and after incarceration and for restorative justice approaches.
2. Registrable offences: The current amendment makes all offences under the Sexual Offences Act registrable. This is an over-reach and exposes a range of persons with mandatory reporting obligations to be identified as sexual offenders if convicted because of their failure to report. It also includes persons convicted of offences related to sex work (prostitution).
Recommendation: Registrable offences should include:
any sexual offence involving children, dependents and categories of vulnerable populations (e.g. the elderly, persons living with disabilities). This would include the use and dissemination of child pornography and dissemination of any pornographic materials to children;
sexual offences committed by a sex offender against someone other than a child; and
trafficking offences.
All registrable offences should be specifically enumerated in a schedule to the Act.
3. Entry and duration on the Register: The process of determining presence on the Register should be a judicial one and undertaken at the time of sentencing. This case by case consideration is preferred over the current proposal to treat all classes of sexual offenders in the same manner. This ‘same treatment’ approach and removal of judicial discretion has been recognised as a violation of the right to protection of the law by the CCJ in relation to the mandatory death penalty in Barbados. In similar fashion, mandatory entry onto a sex offender’s registry deprives the court of the opportunity to exercise the judicial function of tailoring the response to fit the circumstances and the crime.
Recommendation: The Amendment should elaborate the factors to be considered in the determination of entry on the register by a judicial officer. This should include the use of a risk assessment undertaken by the relevant professionals.This risk assessment should also be the basis for the development of a mandatory gender-responsive psycho-educational intervention to be delivered during the period of incarceration.The Act should give the court the power to order such interventions (as it has under the Domestic Violence Act). The determination of the duration of time on the register should be seen as a second stage and undertaken at a time proximate to release from incarceration.
The duration of time on the register should be determined by a Board established for the purpose of management of the Register. Inputs into the Board’s decision making on duration on the register should include a follow up/second risk assessment undertaken at a time proximate to the release date of the sex offender.This risk assessment can also be used to determine whether electronic tracking is appropriate.
4. Public access to register: The policy on access to the registry should be informed by considerations which take into account protection of the public, the privacy interests of sex offenders and the public interest in their rehabilitation and reintegration into the community.Access to the register should be controlled to prevent harm being done to third parties such as families of sex offenders or to convicted offenders through vigilante actions.
Recommendation: Access to the name, photograph and general address of a convicted sexual offender should be available to:
Police
Upon request and with justification, to organisations and individuals who can demonstrate a need to know. A need to know would be shown, for example, by anyone who is considering employing someone who will work with children or in a vicinity of children.
General public in relation to persons who have failed to report whereabouts as required under the amendment
5. Removal from the register: Expunging of name from registry should be automatic and the expiration of the duration of the term on register.
6. Consultation and amendments to the legislation: Referral of the bill to a select parliamentary committee for a fixed period is recommended. Such a referral will enable the engagement of a range of stakeholders, including survivors of sexual violence and their families, to consider the possible impacts and consequences of the legislative proposals. Specific outreach on the proposed amendments should be undertaken with experts in criminology and restorative justice, mental health and social work, sexuality and gender; those who provide services to victims and perpetrators; and teachers, guidance officers and others who work in the care and protection of children.
[1] CAISO: sex & gender justice, Caribbean Center for Human Rights, Coalition against Domestic Violence, Institute of Gender and Development Studies, Network of NGOs for the Advancement of Women, Organisation for Abused and Battered Individuals, Rape Crisis Society, CEDAW Committee of Trinidad and Tobago, WINAD, WOMANTRA
[2] Cecile Pemberton and Joel Joseph: National Women's Health Survey for Trinidad and Tobago: Final Report. IADB 2018. https://bit.ly/2T5LPZJ[3] Statistics on teenage pregnancy can be found in the Ministry of the Attorney General and Legal Affairs' presentation, 'A Consultation on Marriage Acts and Issues Related to Children' https://bit.ly/2TGr4sL