New committee to look at strengthening laws after sex case debate

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A three-member committee has been put in place to address the issue of whether a minor (person under the age of 18 years) can refuse to testify and how to treat a hostile witness in cases where prosecution is deemed to be in the public interest.
These have been issues for decades in Antigua and Barbuda, but the recent discontinuation of a kidnapping and rape case against a policeman who allegedly preyed on a 13-year-old girl, revived the debate on them and caused widespread anger and disappointment.
Earlier this week, the child told the court she did not want to proceed with the case because he has forgiven the accused and does not wish to relive the experiences of July 2016.
Her decision came after speaking with her counsellor from Family and Social Services, the prosecutor Shannon Jones-Gittens, as well as her mother, all of whom tried to persuade her not to refuse to testify.
But, the child maintained for several months that she did not want to relive the experience in court and wanted to move on, forcing the prosecutor to withdraw the case due to the absence of other corroborating evidence such as eyewitnesses or forensics and DNA.
The Cabinet discussed the matter on Wednesday during its weekly meeting and came up with a plan.
In a statement after the meeting, government’s Chief of Staff Lionel “Max” Hurst indicated, “Cabinet agreed that the legal framework was exploited, and that there likely exists methods by which the law can be strengthened to protect minors unwilling to testify. The Cabinet agreed to establish a subcommittee to examine further any changes to the law that would cure the deficiency.”
In that statement, no further details were provided as to how soon, who or how many people would sit on the committee and when they would be required to submit recommendations.
However, in a post Cabinet press briefing at the office of the prime minister yesterday, one of the spokespersons, Minister of Culture Daryll Matthew, revealed the members of the committee.
He said the group is made up of the Attorney General, Steadroy “Cutie” Benjamin, Minister of Social Transformation, Samantha Marshall who is also a trained lawyer, and the minister of state in legal affairs, immigration and labour, Maria Bird-Browne, who possesses a Psychology degree and has been pursuing a law degree.
Matthew said that two of the issues identified so far are how to deal with a hostile witness and if, as a minor (person under the age of 18), the complainant can decide not to testify.
Online research shows the issue is one that is challenging authorities in several countries.
In Scotland for example, the government there began discussing a policy to compel the victims to testify earlier this year, but got great resistance from many who said this would amount to further victimisation of a victim who simply wants to move on.
Rape Crisis Scotland group hit out at the new “reluctant complainers” policy which means rape victims who try to withdraw from cases may be compelled to testify where prosecution is deemed to be in the public interest.
The campaigners said, “For anyone who has the courage to report it and then gets to the point where they can’t continue – to then force them to testify is inhumane,” said Sandy Brindley, the chief executive of Rape Crisis Scotland. “It’s also self-defeating – if you have to put them in the cells the night before it’s not going to be useful evidence.”
Scotland’s most senior judge weighed in. He said alleged victims of such crimes should be able to give filmed statements within 24 hours, warning that the current system puts them through an unfair “memory test”.
“It is somewhat strange that we are depending so heavily on what they’re being asked in a court room months and sometimes years later”, said Lord Carloway.
He also said the cross-examination of rape victims should take place well before the trial and away from court, arguing this would be a much better way of getting to the truth.
Over in the United States last year, a Louisiana district attorney said he would jail rape survivors who choose not to testify against their assailants.
The Orleans Parish District Attorney Leon Cannizzaro said he would use material witness warrants to compel victims in some rape and domestic violence cases to testify, despite criticism from advocacy groups.
“If I have to put a victim of a crime in jail, for eight days, in order to… keep the rapist off of the street, for a period of years and to prevent him from raping or harming someone else, I’m going to do that,” Cannizzaro told Morning Eyewitness News on April 12, 2017.
But his pronouncement was also met with resistance.
Lynn Schafran, director of the National Judicial Education Program for Legal Momentum, explained how many survivors are traumatised from their initial interactions with law enforcement.
“Very often what we find is that, when police interview victims, they’ve been trained in techniques that are applicable to how you elicit information from a suspect,” Schafran told The Independent. “When they interview victims, they interrogate them.”
Many survivors choose not to continue with the process rather than face law enforcement again. Police officers mark them as uncooperative witnesses, when in reality, Schafran says, “they’ve been abused by the system that’s supposed to help them.”
Also, Maya Raghu, Director of Workplace Equality for the National Women’s Law Center, said the use of material witness warrants only furthers this abuse.
“Being jailed to be forced to participate in a prosecution is extremely traumatic and has economic consequences on the survivor as well,” Raghu told The Independent. “It’s punishing victims of violence for reporting the violence against them.”
Both women said they fear this policy would dissuade victims from reporting crimes in the first place.
When a person is accused of rape or another type of sexual assault, prosecutors rely on evidence from as many sources as are available to prove the case beyond a reasonable doubt.
That would include physical and forensic evidence, such as scratches and bruises on the victim, torn clothing and, of course, DNA.
But, very often, the most compelling evidence comes from the testimony of the victims, who sit at the witness stand in a courtroom filled with strangers and describe the horrors they endured — sometimes in excruciating detail.
Greg Hill & Associates, a legal firm in the U.S. highlights on its discussion page that when there is no corroborating evidence, the ability to prosecute is difficult though not impossible.
For example, if the victim does not wish to testify and there is no independent witness to the crime, i.e. a bystander or even a second victim, there would be a challenge.
But, if these exist, the absence of the victim to testify may not be relevant to the prosecution.
Also, in countries where preliminary inquiries are done, if the complainant previously testified at the preliminary hearing or in a prior hearing, and the prosecution and defence had an opportunity to question the alleged victim, his/her unavailability later may not be significant.
However, Antigua and Barbuda abandoned PI’s several years ago.

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