Dear Editor: Outdated laws are cause of sexual harassment problem; T&T must move women into 21st Century

“Trinidad and Tobago has very antiquated laws, some dating all the way back to the 18th Century; the main laws dealing with offences to the person date back to 1925 and have remained more or less untouched since then. To understand why this is so, we must go back to pre-1962.

“The disadvantage lies in the unbelievably lazy nature of the Trinidad and Tobago Parliament since Independence. Whether it is from a lack of political will—not wishing to alienate voters—or that various successive governments have been too short-sighted, we now have a situation where the law is inadequate for a society that has moved on to the 21st Century while the law is stagnated back in the 18th Century.”

The following Letter to the Editor, dealing with the impact of 19th and 20th Century laws on the status of women in Trinidad and Tobago, was submitted to Wired868 by Mohan Ramcharan:

“Is there any modification to the existing law that might make potential harassers think twice before they act?” Wired868 asked me last week, in response to a comment I made on Dennise Demming’s most recent column on sexual harassment. “Is there any way that the law can be tweaked or even changed significantly to make it easier for victims to successfully seek redress?”

As I gave some mature thought to a response, I realised that the issue is much broader and wider than just harassment. Trinidad and Tobago has very antiquated laws, some dating all the way back to the 18th Century; the main laws dealing with offences to the person date back to 1925 and have remained more or less untouched since then. To understand why this is so, we must go back to pre-1962.

Prior to Independence, the laws in Trinidad and Tobago were the same laws that were in effect in England. When changing over to the Independent Constitution, it was easier to let these laws continue in effect:

“Law” includes any enactment, and any Act or statutory instrument of the United Kingdom that before the commencement of this Constitution has effect as part of the law of Trinidad and Tobago, having the force of law and any unwritten rule of law; [s3.1 Trinidad and Tobago Constitution]

One can easily see why this was acceptable. It would help with a smooth transition, plus, there would be no need to rewrite every single law ‘from the ground up.’

The disadvantage lies in the unbelievably lazy nature of the Trinidad and Tobago Parliament since Independence. Whether it is from a lack of political will—not wishing to alienate voters—or that various successive governments have been too short-sighted, we now have a situation where the law is inadequate for a society that has moved on to the 21st Century while the law is stagnated back in the 18th Century.

One can easily see why this was acceptable. It would help with a smooth transition, plus, there would be no need to rewrite every single law ‘from the ground up.’

The disadvantage lies in the unbelievably lazy nature of the Trinidad and Tobago Parliament since Independence. Whether it is from a lack of political will—not wishing to alienate voters—or that various successive governments have been too short-sighted, we now have a situation where the law is inadequate for a society that has moved on to the 21st Century while the law is stagnated back in the 18th Century.

Some examples follow.

Let’s start with how female children are treated in Trinidad and Tobago: – The Married Persons Act 1977, which states in Section 3:

3. Subject to this Act, a married woman shall—

(a) be capable of acquiring, holding, and disposing of any property;

(b) be capable of rendering herself, and being rendered, liable in respect of any tort, contract, debt or obligation;

(c) be capable of suing and being sued, either in tort or in contract or otherwise; and

(d) be subject to the law relating to bankruptcy and to the enforcement of judgments and orders, in all respects as if she were a femme sole

So, here we have the possibility of a minor, who legally cannot enter into legal relationships such as contracts, obligations and those mentioned in Section 3 by virtue of the fact that she is under the age of majority (there is an Age of Majority Act), but is able under the Married Persons Act to do the self-same things she would normally be prohibited from doing! Further, nothing in the Married Persons Act makes exception to Section 3.

A second example is this: Under the Children Act 1925 a person under the age of 14 is defined as a ‘child’. A person between the ages of 14 to 16 is defined as a ‘young person’. And there are penalties for anyone who:

Wilfully assaults, ill-treats, neglects, abandons, or exposes the child or young person, or causes or procures the child or young person to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause the child or young person unnecessary suffering or injury to his health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement).

But what if that person is the ‘husband’ under the Muslim or Hindu Marriage Act? There are several sections in the Children Act just as confusing.

There are several Conventions and Treaties under International Law to which Trinidad and Tobago is signatory, numbering some 200-plus. One of these is the Convention on the Rights of the Child ‘which sets out the civil, political, economic, social, health and cultural rights of children’ and which states that a ‘child’ is anyone under the age of 18.

The International Covenant on Economic, Social and Cultural Rights guarantees several rights to women, one of which is the right “to equality in marriage and family life along with the right to equality before the law.” Furthermore, Article 2 is very powerful. It mandates that States ratifying the Convention declare intent to enshrine gender equality into their domestic legislation, repeal all discriminatory provisions in their laws, and enact new provisions to guard against discrimination against women. Well, we can see that didn’t happen.

But along comes another conflict: The Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages merely asks that States prescribe a minimum age in domestic law but does not say what that age is to be. And indeed, even within this Convention is another grey area: ‘Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family’. Full age means 18 as stated in the Convention on the Rights of the Child.

And here is another thing: the husband of a child bride where he is an adult is likely to exercise ‘control of her movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.’ These are the characteristics of slavery [Prosecutor v Kunarac et al (Judgment) IT-96-23 & IT -96923/1-T (22 February 2001)].

Child marriage can be referred to as slavery, if the following three elements are present:

• If the child has not genuinely given their free and informed consent to enter the marriage;
• If the child is subjected to control and a sense of “ownership” in the marriage itself, particularly through abuse and threats, and is exploited by being forced to undertake domestic chores within the marital home or labour outside it, and/or engage in non-consensual sexual relations;
• If the child cannot realistically leave or end the marriage, leading potentially to a lifetime of slavery.

So, my answer to the two questions asked in the first paragraph is to start here and amend the laws to bring these in line with the treaties and conventions to which Trinidad and Tobago has agreed to conform.

Much-needed consistency is left at the wayside while politicians, to use Wired868’s verb, diddle and play the blame game.

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