STATUTORY RAPE AND DOMESTIC VIOLENCE

[00:00:00] Speaker A: You're tuned into the all new freedom 106.5. 106.5. [00:00:06] Speaker B: It's now time for your edition of justice for this week. Good morning to Andy. Sir, let's go ahead. [00:00:13] Speaker C: Good morning. [00:00:13] Speaker D: All right. Good morning. How are you? [00:00:14] Speaker C: I'm fine. [00:00:15] Speaker D: Nice. [00:00:16] Speaker C: So, yeah, so this week, I mean, it has been. We're now in March. I can't believe we're already in March this year. This year is kind of running. [00:00:24] Speaker D: I kind of glad. [00:00:26] Speaker C: I mean, there's the pros and the cons. And I also know that this month we also celebrate International Women's Day, which I believe is on the 8th of March. [00:00:35] Speaker B: That's Sunday coming. [00:00:36] Speaker C: Yes. So on that thread, we kind of bring in justice today to discuss firstly, how women could essentially protect themselves. And Mr. Rafael also indicated that we could possibly touch on domestic violence. And I know in Trinidad and Tobago, we had a lot of headway in this particular area where I remember in 2020 there was the Domestic Violence Amendment act, which included or at least added added protection to both men and women to ensure that they can protect themselves against what we would. What we would consider as domestic violence. So. Hi, Randall, how are you going? [00:01:17] Speaker D: Hi. Good morning. I'm okay, thank you. [00:01:18] Speaker C: I kind of put him on his spot this morning. [00:01:21] Speaker D: That's okay. [00:01:23] Speaker C: Where we discuss domestic violence. So firstly, we could probably go into what exactly would be considered domestic violence. Right. So as we know, domestic violence could be the obvious where there are physical abuse. [00:01:39] Speaker D: Yes. [00:01:40] Speaker C: But it could also fall into the category of financial abuse, emotional abuse, verbal abuse. And once any of those typical types of abuses made out, a person could then go before the court and apply for a protection order. Right. So under the amendment, it's kind of easy to initiate the process wherein you can contact the court or make the application yourself. And it's usually a quick response. So once you make the application outlining what exactly are the issues that you are complaining of, that you will find physically abused by this person and being verbally threatened by this person. He showed up. He or she showed up at my house and were making threats towards me, then they will accept the application, and within a day or two, you should receive a court date to then, you know, have the matter ventilated before the master. Right. And at this initial hearing, it could occur without the person actually being present because they recognize that you are trying to get quick relief. [00:02:56] Speaker D: Yes. [00:02:57] Speaker C: So the person may not have been served as yet, but the court has the power to make an order ex parte, meaning in the Absence of the person where an interim protection order would be given, at least ordering the person not to continue the acts of abuse towards the person. [00:03:16] Speaker D: Yes. And these matters in terms of the time frame, the. The courts tend to treat with it quickly. [00:03:24] Speaker C: Yeah. [00:03:24] Speaker D: So that the. Any adjourned dates that are given are usually very short dates. [00:03:29] Speaker C: Yeah. [00:03:29] Speaker D: So and as you correctly said in the when the person appears before the court and the defendant, if the defendant is not served, the court can in fact make an interim protection order even in the absence of the person. [00:03:44] Speaker C: Yes. [00:03:44] Speaker D: And adjourn the matter for the person to be served. [00:03:48] Speaker C: Yes. [00:03:48] Speaker D: So that when the person comes to court they can then decide whether. [00:03:54] Speaker C: So it isn't as though, you know, any person could just go and make baseless accusations against the person. The court just recognizes that the person may be in immediate threat. [00:04:06] Speaker B: Yes. [00:04:06] Speaker C: So to essentially protect the person, you usually get a court dates within the next day. [00:04:11] Speaker D: Yes. [00:04:11] Speaker C: More than likely the person isn't served as yet. You go before the master or the magistrate, whichever court that you made the application before. You will obviously have to lead evidence showing while this occurred your life is, well, not necessary. Don't necessarily have to be that extreme. [00:04:25] Speaker D: Yes. [00:04:25] Speaker C: But there has been some level of abuse towards me. [00:04:28] Speaker D: Yes. [00:04:29] Speaker C: And then the court could grant an order. That order has to be served to the person for them to be found in violation of it. So then you possibly go and get a police officer to get or at least you ask the court for alternative service where you serve the person via email or via registered post. So the person would be aware I can be breaching something that I don't know about, essentially. [00:04:51] Speaker D: Correct. [00:04:51] Speaker C: And then you could give an adjourned date for the person to then appear and then the court will give that directions essentially where the person could then defend themselves and say, well no, this didn't happen. [00:05:01] Speaker D: Yes. [00:05:02] Speaker C: Is actually that person who has abusing me and it could go to trial or the person could take an undertaking and it can end there. [00:05:08] Speaker D: Correct. So they can. Yes. They can give an undertaking saying I'm not admitting to these facts. Yeah. However, I will not engage in any sort of abuse against the applicant. And then the court will take that undertaking and put it into an order. And that order may be for a year or two years or three years, whatever the case may be. [00:05:33] Speaker C: Yes. And under the act the court actually has wide ranging power where they could, well of course, order that the person doesn't continue threatening the person or order that the person has to stay a particular distance away from the person and, and it could also order that the person vacates their home. [00:05:53] Speaker D: The property. [00:05:54] Speaker C: The property. So even if. Because they recognize how sensitive domestic violence situations are, where sometimes it could be a situation where the man or the woman stays at home, where the other person goes out and makes money, so that person usually has the financial control in the situation. And sometimes that could be a bar from the person being able to seek help. [00:06:19] Speaker D: Yes. [00:06:19] Speaker C: Because where exactly am I going to go? I have three children who I have to see about. If I leave from here, I can't go home to my parents or whatever the case may be. Where exactly am I going to go? So they can then order that the person's. That person, even though they own the property. Vacate. [00:06:36] Speaker D: Yes. [00:06:36] Speaker C: Usually as an extreme situation. And you'd have to lead good evidence as to why you want that person to vacate. The person has abused me every single day for this past year. [00:06:46] Speaker D: Yes. Any type of abuse. [00:06:47] Speaker C: And the type of abuse that the person. [00:06:50] Speaker D: Because, I mean, in the past. And that's, I guess, with everything in the past, persons have used that provision, which is a ouster order, that provision as a means of putting out persons. [00:07:05] Speaker C: Yeah. [00:07:05] Speaker D: When really and truly they ought to go to the civil court to do that. Unless there is actually domestic violence. [00:07:13] Speaker C: Yeah. Because sometimes, I mean, you can get a divorce without doing the property settlement. [00:07:17] Speaker D: Yes. [00:07:17] Speaker C: And some persons try to, you know, to use very unique situation to be able to get the outcome that they want, particularly that they remain in the home. And the person has. So the court will, you know, consider all these factors and also consider whether the person who they are removing from the home has somewhere to go. So, I mean, to. To kind of circumvent that, they could then say, well, you have to stay in this half. [00:07:41] Speaker D: Yes. [00:07:41] Speaker C: And the other person has to stay in the other half of the house. [00:07:44] Speaker D: Correct. [00:07:45] Speaker C: Yeah. So that's essentially in Trinidad and Tobago. And I. I think that our legislature has to be commended for making the changes to ensure that persons who experience domestic violence. Because I'm certain that we all have seen or at least know someone who has, in fact experienced domestic violence. And it doesn't necessarily have to be only limited to women. [00:08:08] Speaker D: It can also be men, I believe, too, as well. The. The ankle monitoring has expanded to include situations of domestic violence. [00:08:18] Speaker C: Yeah. [00:08:19] Speaker D: So that the person who is prohibited from coming within a certain distance. [00:08:26] Speaker C: Yeah. [00:08:28] Speaker D: May be required as well to wear an ankle monitor. [00:08:30] Speaker C: Yeah. And even as you touch on the whole issue of ankle monitoring, I know every time we talk about the issue of bail, persons are always in an uproar because when you see someone, for instance, charged with a sexual offense and the person received bail, that's usually a big fiasco, a big thing on social media. But now they allow persons on bail to be on the ankle monitor. [00:08:57] Speaker D: Yes. [00:08:57] Speaker C: If you could give us some information on that. [00:08:59] Speaker D: So in terms of the anchor monitoring, so that. That there is a department or a unit. The anchor monitoring unit. That there is this provision where. Whereby they would come and install a monitor. [00:09:14] Speaker C: Yeah. [00:09:15] Speaker D: A unit at your premises. [00:09:17] Speaker C: Yeah. [00:09:17] Speaker D: And. Well, you have to have Internet connection and proper electricity and whatnot. [00:09:21] Speaker C: Yeah. [00:09:22] Speaker D: And the person is then outfitted with a ankle bracelet. Yes. And then conditions are placed, so be it, that you are not to leave your home after 6pm or if it is that the person resides in the victim, alleged victim resides in a particular area, you are not to visit that area. So that the anchor monitoring unit can monitor you all over. [00:09:50] Speaker C: Yeah. [00:09:51] Speaker D: And. And that is to ensure that. Let's just take for instance, it might be a child, so that you are not in to go close to the school. [00:10:01] Speaker C: Yeah. [00:10:01] Speaker D: Right. So that is to ensure that they are able to monitor you and see if a crime took place in another crime took place in an area, but involving a child, they could check to see, okay, was this person there in that vicinity around that time. [00:10:15] Speaker C: Yeah. [00:10:15] Speaker D: So it helps in terms of one prevention and then in terms of detecting whether or not this person may have been responsible for this crime. [00:10:26] Speaker C: Yeah. And it is. It is, in fact a condition of bail. So it isn't that someone could just generally randomly be able to access ankle monitor. And you'd have to approach the court. [00:10:39] Speaker D: Yes. [00:10:39] Speaker C: Make an application for bail. And that could be one of the conditions for your bail where you would have to be placed on an ankle monitor. And. And it's usually a lot. Well, not necessarily a long process, but a tedious process where you'd have to ensure that all the forms are filled out, where they know who owns the property that you'd be staying in, and all these different things. You'd have to pay a fee each month, each month that you are, in fact on the ankle monitor. And then the electronic monitoring units would then conduct their own visits to ensure that the property that you put up is suitable for the ankle monitor. So it's usually a very tedious process before someone is placed on the ankle monitor. And in fact, it's a condition of bail. So while the trial is going on, it isn't anything that you can get when you are convicted of the crime. [00:11:27] Speaker D: It's only when it is a condition of bail. [00:11:29] Speaker C: A condition of bail, yes. So that's essentially some of the safeguards that we in Trinidad and Tobago have to protect women and just generally to protect anybody who, who is experiencing domestic violence. And there are a lot of resources in Trinidad that I think we don't necessarily know of. So for instance, there are a lot of organizations firstly such as the Legal Aid and Advisory Authority, there's Winard, there are a lot of other organization that provide free legal advice for persons and free legal help who may not be able to afford a private retainer. [00:12:02] Speaker D: Yes. [00:12:03] Speaker C: If you experience experiencing any of the, any of these, you know, problems. Because the whole point about it is to ensure that persons are properly empowered to be able to help themselves if they find themselves in these difficult situations. And oftentimes it's a process where you have to actually get to the point where you want to accept the help to be able to get out of the situation. But if in fact that you do, there are a lot of safeguards within Genana and Tobago in our legislation to ensure that you are able to in fact access the house. [00:12:33] Speaker D: Yes. [00:12:34] Speaker C: Yeah. So that's in a nutshell, is it? And then we are also going to touch briefly on sexual offenses. [00:12:41] Speaker D: Yes. [00:12:42] Speaker C: Particularly statutory children. [00:12:45] Speaker D: Yes. [00:12:46] Speaker C: Yeah. So give us some insight on that. [00:12:47] Speaker D: Okay, so the, the Children's act provides that a child is considered to be under the age of 18 and you any sexual activity with children. Prohibited sexual penetration of a child is a serious offense and a child cannot consent. [00:13:10] Speaker C: What would be considered a child? [00:13:12] Speaker D: A child is considered anyone under the [00:13:14] Speaker C: age of 18, anyone under the age [00:13:15] Speaker D: of 18, anyone under the Age of 18. So that a child cannot consent to sexual activity, to sexual penetration. [00:13:21] Speaker C: Right, right. [00:13:22] Speaker D: So if there may be a relationship between a 16 year old girl or 15 year old girl and a 25 year old male. [00:13:31] Speaker C: Right. [00:13:31] Speaker D: And the girl may say I am aware, I know what, I know what sex is. This is my boyfriend and I would, I have no problem having sex with him. [00:13:41] Speaker C: Yeah. However, no, under the legislation that is [00:13:45] Speaker D: strictly prohibited, that is illegal. So that that child cannot consent and therefore any type of sexual activity with that child will be. Is illegal. Right. [00:13:58] Speaker C: And that also kind of touches on what, what do you call it, that particular offense where it is sexual penetration of a minor. So it, once there's penetration and the person is a minor, regardless of whether or not you think that this person consented or you believe that you were in a position to consent. [00:14:19] Speaker D: Yes. [00:14:20] Speaker C: Once it is in fact made out the court doesn't have any concern about the consent. [00:14:25] Speaker D: The consent. Correct. [00:14:26] Speaker C: But if it is a situation where it is a minor, a minor with another minor, how would the court deal with that particular situation? [00:14:34] Speaker D: So there, there are different categories, first being between persons between the age of 16 and then persons under the age of 14. And the law provides for. Let me just put it up one moment. [00:14:51] Speaker C: Yeah. So it's a situation where generally one's. The first step is to recognize whether or not this person is a minor. [00:15:05] Speaker D: Yes. [00:15:05] Speaker C: Once that is in fact made out, then. [00:15:10] Speaker D: Yes. So it is a first step is to recognize whether or not the person is a minor. And they usually. That evidence comes from the birth certificate of a child. Right. All right. Together with the parents of each other. [00:15:24] Speaker C: Right. [00:15:25] Speaker D: Because a minor can't give evidence of their. Of their age. Right. That must come from. From the parent because that is considered hearsay. [00:15:33] Speaker C: And even when the minor is given any statement, the statement usually has to be done in the presence of a trusted adult. [00:15:40] Speaker D: Yes. [00:15:40] Speaker C: If it isn't, then that could possibly be one of the grounds in which you could object to that statement being admitted as evidence in court. So there are a lot of safeguards that has to be done to ensure whenever these very sensitive offences are being dealt with, and it involves a minority, that the minor is in fact protected and that the minor is able to give proper evidence. So, for instance, if the person is a child, I mean, a minor, but under the age of 10, for instance, they may have a psychologist or someone from the, from that particular unit that would then have a conversation with the child to figure out, do you know what's the difference between a truth and a lie. And you'll sometimes see those things coming out in these statements. To be able to ensure that the child actually knows what in fact occurs, occurred, and can explain that and explain what, you know, what they experienced. Did you get the information on. [00:16:37] Speaker D: Yes. [00:16:38] Speaker C: Yeah. [00:16:38] Speaker D: So it says that a person 16 years of age or over, but under 21 years of age is not liable under section 18. Section 18 being a person who sexually penetrates a child, commits an offense and is liable on conviction or indictment to imprisonment for life. So sexual, sexually penetrating a child, the sentence for that, the person is liable to imprisonment for life. [00:17:02] Speaker C: Yeah. [00:17:02] Speaker D: And it says that a person 16 years of age or over, but under 21 years of age is not liable under section 18 if he is less than three years older than the child against whom he is purported to have been perpetrated the offense. He is not in a familiar relationship with the child nor in a position of trust in relation to the child. And he is not of same sex of the child. And in these circumstances do not reveal any element of exploration, coercion, threat, deception, grooming or manipulation of the child. So that says that a person who is 16 years of age but who is less than 21. So let's just take it out. A boy who's over 16 but less than 21 will not be liable if it is that he is less than three years older than the child. [00:17:47] Speaker C: Yeah. [00:17:48] Speaker D: So if the child. If he is 16 and the child is 16, then he will not be liable under. [00:17:54] Speaker C: Yeah. [00:17:55] Speaker D: Section 18, which is sexual penetration of a child. Now, sexual penetration of a child doesn't only mean he by penis. Let's just say it means. It means penetrator penetration of any kind into the child. Right. So that is how the court will look at it if the. If the child, the other party or the offender is also a child. [00:18:24] Speaker C: Yeah. I think when we deal with these very sensitive offenses, our legislature. I think this is my general opinion because I remember when I was doing my llb, I did a study as it relates to maintenance and these kind of things with it within our society, just generally. And we know that if someone, you know, is married, the type of things that they would be entitled to under the Family Law act is different from an unmarried. Unmarried woman. For instance, an unmarried woman could only go before the master's court or the magistrate court to be able to get maintenance for the child, whereas a married person could go before the high court. [00:19:08] Speaker D: Yes. [00:19:09] Speaker C: So you could see the difference in which these things are treated with. So sometimes we know in our society there are instances where someone under the age of 18 had relations with someone older than them and a child results. And if the person, the minor then goes to the hospital. [00:19:30] Speaker D: Yes. [00:19:30] Speaker C: To have the child, that person who is the father cannot present themselves because they run the risk of being arrested. [00:19:36] Speaker D: Yes. [00:19:37] Speaker C: So now we have a minor child with a child. [00:19:41] Speaker D: Yes. [00:19:42] Speaker C: And who possibly can't get the help of the father of the child in the hospital because the person can't go there. [00:19:48] Speaker D: Correct. [00:19:49] Speaker C: And then possibly wouldn't go to register the child because he also runs the risk of being arrest. Arrested then and there. So now we have a minor child with a child and the child doesn't have a father on the birth certificate. And then you, that mother possibly can go before the court to get maintenance from that father because he isn't outright recognized as the father of the child. [00:20:12] Speaker D: Correct. [00:20:12] Speaker C: So while we want to ensure that our. And that's. I mean, that's the top priority. To ensure that the miners are protected from any predators, whether the minor be a male or female. We also have to recognize that there are these sensitive gray areas where we don't necessarily want to ensure that a child already in a very difficult place isn't able to get the help or the resources that they need. And if you kind of bar the father because he runs the risk of being arrested. [00:20:43] Speaker D: Yes. [00:20:43] Speaker C: Then how exactly would the person be able to get the help? Daddy. You know. [00:20:47] Speaker D: Yes. [00:20:47] Speaker C: Yeah. [00:20:47] Speaker D: So that's a very interesting point. Yeah. [00:20:49] Speaker C: Because if you. Then the whole act itself is criminalized outright, which is a good. Yes, I recognize that it is a good in society. But there are these instances where when you now have a minor who possibly can no longer go back to school. [00:21:09] Speaker D: Yes. [00:21:09] Speaker C: Who has to take care of a minor child who possibly doesn't have the support of their family. Because we know as soon as the belly starts to show, the relatives then show you out the house. So you can't go to school, you can't get the help from your family. You also can't get the help of the father because the father can't come around because he runs the risk of being. And when I say can't come around, I mean officially to go to the hospital, to go to register the baby. Because you don't run the risk of being arrested. [00:21:35] Speaker D: Yes. [00:21:36] Speaker C: Yeah. So it's a very tricky situation where we need the experts to come together to figure out how to deal with it. [00:21:42] Speaker D: Yes. [00:21:42] Speaker C: Because you don't necessarily want these predators to, you know, escape. [00:21:45] Speaker D: Escape. But at the same time you want to make sure and be able not put the child in a position where their help is not available to them. [00:21:53] Speaker C: Yeah. [00:21:53] Speaker D: And in some of those cases the child will at the hospital stable. I don't know who the father is. Or I was raped. [00:22:00] Speaker C: Yeah. And they usually sometimes say that because of the shame, the guilt and the consequences that could happen. [00:22:07] Speaker D: And trying to protect the. [00:22:08] Speaker C: And trying to protect the person. Yeah. [00:22:11] Speaker B: So at no time there's responsibility on the authorities health wise to get in touch with who this father is. What about if, is there a statute on this? So if you didn't tell me who the father is. You're 16 years. [00:22:22] Speaker D: Yes. [00:22:22] Speaker B: You make the baby and tell me who the father is when I don't [00:22:25] Speaker D: know who the father. [00:22:25] Speaker B: Right. But then four years down the road we figure out who the father is. And DNA testing showed idea. [00:22:30] Speaker D: Yes. What we could do. [00:22:31] Speaker C: There isn't any statute, you can still [00:22:33] Speaker B: bring your first statutory rape. [00:22:34] Speaker D: Yes. [00:22:36] Speaker C: Yeah. So that's why I say that there's no date or at least no limit under which that you could say that, well, I'm no longer going to prosecute the rape or the penetration. Once you can prove it, you can prove it. You could make a report. But it usually is a situation where the minor child gets pregnant and I'm not trying to excuse teenage pregnancy, but sometimes it happens and we have to ensure that persons who find themselves in this situation can receive the help that they need because the child himself isn't the wrong. When the child doesn't have any support at all, then it makes a bad situation even worse because I've seen persons who, you know, you'd have persons who you went to school with and it happened, but they receive the help of their family and they're able to still complete school, then go on to university and turn their life around, whereas another child who found herself in a situation and they were thrown out, they can't get the support of the dad, they can't get the support of the authorities and they find themselves in an even worse situation. So I think it's a very sensitive issue that we need to treat with very, you know, very delicately. Uh huh. [00:23:44] Speaker D: Well, it is real. [00:23:45] Speaker B: Rob me. [00:23:45] Speaker D: And nobody is a fire truck. Hello. Good morning. [00:23:50] Speaker B: Good morning. [00:23:51] Speaker E: Good morning. [00:23:52] Speaker D: Good morning. [00:23:53] Speaker E: This might be doctor who used to point out, you know, that this might be an intergenerational thing. [00:24:00] Speaker C: Yeah. [00:24:00] Speaker E: That it happens, you know, consistently over generations. So it is more than if they troll the person or not. There's something fundamentally wrong that is going on that we are not fixing and we are pretending that little things are big things. You can just gather DNA data and so on and over time you will see a pattern emerging and that kind of thing. We just like to pretend that little problems, little tricks in the game, throw the whole game off. And I'm not satisfied with that kind of approach at all. Thank you. [00:24:38] Speaker B: All right, thank you. In conclusion. [00:24:41] Speaker D: And, and that's why the children's authority is there. [00:24:43] Speaker C: Yeah. [00:24:44] Speaker D: The children's authority is there to try to assist in, in these type of offenses. And as well, parents have a responsibility to report. To report any type of offense against a child to the, to the, to the police. [00:24:59] Speaker C: Yeah. And there are. To close off. I would say that there are a lot of resources that persons can access In Trinidad and Tobago. I know a lot of times we focus on the things that we do not have. But I think in this particular area. There are some work to be done but we have made significant headway. So there's the Gender Based Violence Unit, there's these Sexual Offences Unit, a very specialized unit that deals with these instances and there are also a lot of organizations that put significant resources in helping persons who find themselves in these situations. So there's winner to name to name one and Winnard even provides legal representation to migrants. So and I've done work with Winnard where they provide free legal help to these persons, including migrants to help them get, you know, custody, maintenance, etc, whatever help they may need within our legal system. So while we celebrate International Women's Day and all the advances that women have made within our society, we also recognize that there are some persons who aren't as fortunate and we also need always need to help our other women who may find themselves in these situations. So wonderful. [00:26:12] Speaker B: Guys, I have to leave it there. News is coming up. We want to thank you guys for another edition of Justice. [00:26:17] Speaker A: You're tuned into the all new freedom 106.5, 106.5.