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Need to Balance rights of Defendant against those of Victim in Gender Based Crimes

Need to Balance rights of Defendant against those of Victim in Gender Based Crimes. Human Rights of the Defendant. Main Constitutional and common law rights -Right to fair trial within a reasonable time by independent and impartial tribunal -Right to public trial by jury.

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Need to Balance rights of Defendant against those of Victim in Gender Based Crimes

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  1. Need to Balance rights of Defendant against those of Victim in Gender Based Crimes

  2. Human Rights of the Defendant • Main Constitutional and common law rights -Right to fair trial within a reasonable time by independent and impartial tribunal -Right to public trial by jury

  3. But What Are Victim’s Rights? • Not specifically enshrined as such -But entitled to same fundamental rights and freedoms as everyone else -International conventions on the rights of women – CEDAW- affirms that “violence against women constitutes a violation of the rights and fundamental freedoms of women and impairs or nullifies their enjoyment of those rights and freedoms.”

  4. What measures exist to protect Victims at trial? • Legislation- e.g. Evidence Act • Aids in Protecting human dignity and access to justice : -in camera trials -use of audio video links -Use of screens, can also be employed if technology not available (English practice and procedure applicable) -Practice challenged as in breach of defendant’s human rights- challenge failed -prior sexual history not disclosed except with leave -no humiliating or annoying questions in cross-examination

  5. Competent and Compellable Witnesses • Specific difficulties- -Sometimes victims choose not to prosecute and prosecutors feel constrained to accede to victim’s wishes -Should Courts re-examine their powers to compel victims to testify? -But caution- how can we discern what factors feature in victim’s decision not to proceed? -What support/help can be offered to reduce those concerns and protect victim?

  6. Domestic Violence Legislation • The BVI Domestic Violence Act 15 of 2011 -broad definition of domestic relationship e.g. they are or were in an engagement, dating or visiting relationship which includes but is not limited to an actual or perceived romantic, intimate or sexual relationship of any duration -broad definition of domestic violence includes emotional, verbal or psychological abuse economic abuse stalking destruction of property

  7. Sentencing Practice • Victim Impact Statements -Laws mandate that the courts take all the circumstances into consideration in sentencing an offender -e.g. BVI Criminal Justice Alternative Sentencing Act 2005 s 4 – all the circumstances including victim’s to be taken into account -Do victims have a voice in the sentencing process? -can victim impact statements be employed to redress this?

  8. Our Guidelines on Sentencing in Sexual Offences • The Winston Joseph mitigation guidelines -do they merit another look -Two mitigation factors addressed -Defendant feels genuine affection for the victim in a case of incest,: one of the oldest and gravest of social taboos –what message is this sending? -Girl victim deliberately seduced the Defendant - what does this say about women and men?

  9. Sentencing Remarks • Written reasons on sentencing • They fall into the public domain. -Do we really need to give explicit details of the facts in gender based crimes of violence? -What of the victim’s rights to human dignity -If the matter goes on appeal Court of Appeal has benefit of complete transcript •  Need to be more sensitive and always mindful of the power of gratuitous remarks to the effect that the victim could have sought help sooner or expressions of similar sentiments. -Can such remarks castigate victims and deter future complaints?

  10. Common Law-Judicial interpretation of provocation • Does provocation merit a second look -Tabeel Lewis v the State of Trinidad and Tobago -teenager kills his older lover –motive: to maintain his privacy/reputation - vulnerable personality -Where lies the future development of this partial defence?

  11. Towards Equality and a Brave New World for All • Criminal law-not merely to punish the offender but to protect and give redress to t he victim and society. • Traditional ways wanting –call for awareness, sensitivity , innovation and flexibility. • Holistic approach needed -Who looks after interest of victims at trial, prior to and post. -Special police units to deal with domestic violence and crimes against women and children -Education- schools homes basic socialization re-examined-re-think traditional /cultural roles, behaviour of boys and girls.

  12. Where both women and men can build enduring monuments in respect and affection for each otherDhanyavad Namaste

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