LINKAGE Q1 (2021) - Choose To Challenge
by Jeanelle Pran and Fanta Punch
Despite its small population, Trinidad and Tobago continue to experience high levels of violence against women, with the severity of crimes having escalated over the past few years. In early 2021, the country was rocked by the senseless murder of 23-year-old Andrea Bharatt, which occurred just one month after the gruesome murder of teenager Ashanti Riley. For many, the criminal justice system including our country’s legislation, law enforcement and courts have failed Ashanti, Andrea, and women at large.
Recent months have seen a strong public outcry over the violence against women, where citizens have shown a united front by staging peaceful protests and marches throughout the country. In answer to the cries of the country, the Government has taken certain steps to ensure a greater measure of security for women and citizens at large. Two initiatives proposed by the Government are further amendments to the Sexual Offences Act. Chap. 11:28 (the ‘Act’) and the intention to allow pepper spray to be used by citizens subject to a permit. The following article will explore these changes which are on the Government’s agenda.
The Sexual Offences (Amendment) Bill 2021 (the ‘Bill’), which had its first reading in the Senate on 23rd March 2021, seeks to amend the Act in the following main ways:
(a) Under the Act, Part IV is titled the “National Sex Offender Register”. The Bill proposes to rename this as the “Sex Offender Registers” to reflect the intention to establish not just a National Sex Offender Register but a Public Sex Offender Website. To this end, the Bill proposes to insert a new Section, Section 46A which will provide for two Registers to be known as the “National Sex Offender Register” and the “Public Sex Offender Website”.
(b) In its current form, Part IV of the Act (which deals with the National Sex Offender Register) only applies to convictions of registrable offences by Courts in Trinidad and Tobago. The Bill proposes to amend Section 45 of the Act to provide that Part IV (which will be amended to apply to both the National Sex Offender Register and the Public Sex Offender Website) shall apply, among other things, to a sex offender who is convicted of a registrable offence within or outside of Trinidad and Tobago. Registrable offences include offences such as rape, grievous sexual assault, incest, indecent assault, and abduction of a female.
(c) The Bill proposes to repeal and substitute Section 47 of the Act in order to provide that the National Sex Offender Register shall not be accessible to the public and that it shall contain the information listed in Schedule 3 of the Act (which includes the sex offender’s name, former name and aliases, date of birth, place of birth, country of citizenship, place of employment, passport number, acquittals or pardons etc). Additionally, the Commissioner of Police will be given control and custody of the National Sex Offender Register and shall be responsible for:
(d) The Bill proposes to repeal and substitute Section 48 of the Act in order to provide that the Commissioner of Police shall have control of a website known as the Public Sex Offender Website. Unlike the National Sex Offender Register, the public will have access to this website, which is intended to set out specified information on the sex offender (such as his/her name, former names and aliases, date of birth, photograph, the locality in which the sex offender lives, and convictions of registrable offences committed by the sex offender including the date of each conviction). The Commissioner of Police will also have the same obligations and responsibilities in maintaining the website as it does in relation to the National Sex Offender Register (as set out in (c) above).
(e) Under the proposed amendments to Section 48, the website would contain a notice warning of prosecution for the intentional and unlawful reproduction, sharing or use of information published on the website. Further, a person who intentionally and without lawful excuse or justification alters, disposes, reproduces, shares or uses any information published on the website commits an offence and is liable on summary conviction to a fine of $25,000.00 and to imprisonment for three (3) years.
(f) Section 49 of the Act will be amended to provide that where a person is convicted of a registrable offence, the Court shall order that the person report to a police station for the purpose of registering as a sex offender. This is subject however to the convicted person making an application under Section 61 of the Act to be exempt from registering or reporting. Additionally, the Bill proposes to provide that where the person appeals his conviction for a registrable offence, the Court shall, pending the outcome of the appeal, withhold to make an order with respect to registration and reporting requirements.
(g) Section 50 of the Act will be repealed and substituted with a new Section which will provide that where a person appeals his conviction for a registrable offence and the conviction is upheld, the Court shall order that the specified information on the sex offender is published on the Public Sex Offender Website within seven (7) days from the date the conviction was upheld. Where however a person has not appealed his conviction, the information is to be published on the Public Sex Offender Website within thirty (30) days after the date of conviction.
(h) The proposed changes to Section 50 will also provide that, where a sex offender is convicted of a registrable offence, he/she may apply to the Court to be exempt from having the information published on the Public Sex Offender Website. Before making a determination on such an application, the Court may request a mental health assessment report from a psychiatrist and shall take into account the following factors:
Notably, the Data Protection Act Chap. 22:04 defines ‘personal information’ as information about an identifiable individual that is recorded in any form including information relating to the criminal history of the individual. In addition to this, information about a person’s criminal record falls within the definition of ‘sensitive personal information’. Accordingly, under the Data Protection Act, such information should be treated in accordance with the General Privacy Principles which include, among other things, that the knowledge and consent of the individual are required for the collection, use or disclosure of such information. Having regard to this, there is a risk that the publication of information about sex offenders on the Public Sex Offender Website without permission of those persons could result in a violation of the Data Protection Act. Notwithstanding and in any event, the enforcement provisions under the Data Protection Act are not yet in force and therefore there are technically no penalties at this time for failure to comply with the General Privacy Principles.
There are also certain other provisions in the Data Protection Act that deals with the treatment of personal information by public bodies (and in some instances in the context of law enforcement). However, these provisions have not been proclaimed and are therefore not yet in force.
In or around February 2021, the National Security Council of Trinidad and Tobago signalled its intention to allow pepper spray to be used by citizens provided they are in possession of a permit. Currently, no legislation and regulations have been approved to regulate the use of pepper spray and it has been reported that it is still in the drafting stages. As such, the scope and extent of the pepper spray legislation is unclear at this time.
Given the lethal effect of pepper spray, some of the issues which we anticipate that the legislation will cover include:
At this point in time, neither the pepper spray legislation nor the amendments to the Act are in force and it is only until these are fully enacted would citizens reap the rewards. There is therefore a long road ahead to ensure that women in our country feel safe and secure. However, as the saying goes, the journey of a thousand miles begins with a single step. These proposed measures to be implemented by the Government are therefore a step in the right direction in instituting not only strong penalties for violence against women but also placing stringent safeguards.
The information provided in this article does not and is not intended to constitute legal advice. All information is provided for general information purposes only. Specific advice should be sought from your Attorney-at-Law on any issues raised herein, as necessary.
Jeanelle Pran is an Associate Attorney-at-Law at M. Hamel-Smith & Co.
Fanta Punch is an Attorney-At-Law and Partner at M. Hamel-Smith & Co.
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