HANDBOOK TO THE CARIBBEAN
TREATY AGAINST SEX
CRIMES AND HUMAN TRAFFICKING
Written by Jonathan
Bhagan on behalf of the Caribbean Committee Against Sex Crimes
This draft handbook
is aimed at explaining and expounding upon the proposed policies
in the draft treaty.
Q: What
is a Treaty how does it work?
A Treaty is an agreement in international law that is entered into by Sovereign Nation States and International Organizations. Treaties bear some similarities to contracts and other forms of agreements between parties.
A treaty may also be called an (international) agreement, protocol, covenant, convention, pact, or exchange of letters, among other terms. Regardless of terminology, all of these forms of agreements are, under international law, equally considered treaties and the same rules apply to all.
A treaty can be used to establish an international organization such as the AGREEMENT ESTABLISHING THE CARIBBEAN COURT OF JUSTICE.
A Treaty is an agreement in international law that is entered into by Sovereign Nation States and International Organizations. Treaties bear some similarities to contracts and other forms of agreements between parties.
A treaty may also be called an (international) agreement, protocol, covenant, convention, pact, or exchange of letters, among other terms. Regardless of terminology, all of these forms of agreements are, under international law, equally considered treaties and the same rules apply to all.
A treaty can be used to establish an international organization such as the AGREEMENT ESTABLISHING THE CARIBBEAN COURT OF JUSTICE.
Treaties
can also be used to recognize fundamental human rights as seen in the International Convention on Civil and
Political Rights (ICCPR). Once these rights are recognized avenues of
redress can be created whereby citizens of a nation whose rights have been
infringed can bring their case before an international body.
Furthermore Treaties can be used to create
binding obligations for nations to change their domestic laws.
Q: Why is the Caribbean Treaty Against Sex Crimes
and Human Trafficking necessary?
i. To safeguard against
convicted offenders moving from one Jurisdiction to
another.
At present there are insufficient safeguards to deal
with individuals
previously convicted of sex crimes who move from one country to another.
This is illustrated by a report in
the Trinidad Express dated April 30th 2011 where a teacher
previously convicted of sexually assaulting
his pupils
in the United States of
America (USA) was
allowed to teach at an all-girl
school in Trinidad.
Under this treaty offenders like this
would be made to register in any country in
which they reside, and said offender
would be barred from
obtaining jobs
that could
facilitate future
sex crimes.
ii. To
improve the Victims Support policies throughout the Caribbean
Victim support
is crucial in both helping victims make a full recovery and in increasing the conviction rate of these crimes. Most victims of sex crimes never report them out of fear
or shame.
Furthermore, unless a victim is
properly counseled and coached they may be an ineffective witness at trial.
iii. Some Caribbean
Territories have no sex offender’s
registry.
Based on preliminary research, Trinidad and Tobago and Jamaica are the only
Caribbean countries which have sex offender registry policies. The rest of the Caribbean seems to
be
lagging behind.
iv. To promote regional cooperation to
fight human trafficking networks Human trafficking and the sex trade are a transnational
threat to the dignity of the
person. Organized criminal syndicates will require regional cooperation in order
to investigate and prosecute successfully.
v. To create an international organization called the
Caribbean Organization against Sex Crimes (COASC).
As chairman of the legal committee I decided that it was imperative that for the objectives of the Caribbean Committee Against Sex crimes to be fulfilled a specialized international organization needed to be formed.
This organization will be funded by a special trust fund in order to keep it separate from political interference.
The best method to create such an international organization is via a treaty.
Q: What are the objectives of the Treaty?
As chairman of the legal committee I decided that it was imperative that for the objectives of the Caribbean Committee Against Sex crimes to be fulfilled a specialized international organization needed to be formed.
This organization will be funded by a special trust fund in order to keep it separate from political interference.
The best method to create such an international organization is via a treaty.
Q: What are the objectives of the Treaty?
1. To establish an organisation that shall be
responsible for furthering regional cooperation in the fight against sex crimes
and human trafficking.
2. To establish a regional sex offenders’ registry and mandate that
signatories establish local sex offenders’ registries. The local registries
will be used to create and update the regional registry.
3. To establish regional
databases for persons charged with sex crimes and human trafficking, to
facilitate regional cooperation in tracking potential sex offenders’, and most
importantly to provide data for research that will inform future policies and
laws.
4. To create a system of notification to track whenever an offender
moves from one jurisdiction to another and to ensure that sex offenders
registered in non-signatory states are registered when they move into the
Caribbean region. This will work alongside the proposed US International
Megan's Law to Prevent Demand for Child Sex Trafficking (H.R. 4573).
5. To mandate that signatories bring their laws
and policies for supporting victims of human trafficking and sex crimes in line
with international best practice.
6. To mandate that signatories establish Victims Support Units in
their respective jurisdictions, to provide practical assistance to victims and
help them report the crimes perpetrated against them and
7. To mandate that a system
of treatment, rehabilitation and reintegration be established for former
offenders this will help prevent them from committing new crimes.
8. To ensure that convicted perpetrators of human trafficking or
sex crimes are never employed in situations that facilitate their inclinations.
In other words, we don’t want a paedophile working in a kindergarten.
9. To
implement measures that increase the conviction rate of perpetrators of human
trafficking and sex crimes and to deter future offenders
Q: Why create
an Obligation to establish local Sex Offender Registries?
A: Only a handful of countries
in
the Caribbean region
have a sex offender registry law
in place. Furthermore in the case of Trinidad and Tobago, the present day registry is
kept
highly confidential and parties that have legitimate interest in accessing the
information cannot do so easily e.g. Public
Schools and Universities.
Q: Why create a regional sex offender registry?
A: With the establishment of the Caribbean Single Market and Economy, freedom
of movement was
guaranteed by the Revised Treaty of Chaguaramas
for certain classes of individuals. With this freedom
of
movement comes
the risk
of
sex offenders crossing borders and committing crimes with impunity. A regional sex offender’s registry will
ensure
greater protection for
the
citizens of the Caribbean region.
Q: Will this registry be made available to
the
public?
A: More research needs to be done to see if the registry should be made available to
the
public at large like it is
in the USA. There is
a risk
that persons may hunt down these
registered offenders, victimize them or
target them for
criminal
behavior as well. The pros and cons of publishing the registry online must be weighed and analyzed.
But it
is essential to ensure that this information is made available to every
organization that has
a relevant interest e.g. schools, employers,
immigration authorities
etc.
At present this level of disclosure of information is
not available throughout most of
the
Caribbean.
Q: Why target
Human
Trafficking
issues along with sex crimes?
A: On January 6th of 2016 the Trinidad Express and Looptt reported
as
follows:
“Anthony Smith, 30 was
yesterday rearrested and slapped with 21 charges
involving human
trafficking, child prostitution and assault
Among the charges
is that of recruiting a child for the
purpose
of trafficking.
Smith is
also
charged with having sexual intercourse
with a child under
18 and causing
and
inciting a child to become a prostitute.
Police are alleging that Smith ran a very intricate and well organized network
organization with the use of his
business Erotica Caribbean Club online through
Facebook. “
Human trafficking and sex crimes can in some cases be intrinsically
linked to a single criminal
enterprise. As a result
it makes sense to target both crimes
simultaneously. Not
all
instances of human trafficking may involve sex crimes, but the ever flourishing sex trade is an evil that ought to be dealt with.
Q: Why target Gender Based
violence and domestic violence issues along with sex crimes?
A: The fully functional Victims Support unit that treats victims of sex crimes
has
the
same
facilities and staff necessary to provide basic assistance to victims
of
gender based violence and domestic violence.
Therefore economies of scale can be achieved by using the same staff and
facilities to deal
with sex crimes and serious cases
of
domestic violence.
Rape is sometimes an aspect of the abused victim’s experience in their relationship with their partner, hence there is
an
overlap at times
with
domestic violence and sex crimes in some cases.
Q: Why is it necessary to establish a Caribbean Organization against Sex Crimes
(COASC)?
A: It is necessary to establish an independent body to take on the responsibility of achieving
the
goals of the treaty and to fight against sex crimes and human trafficking in general.
An independent body is necessary to ensure that corruption does not taint the
functioning of the policies to be established by the treaty. Human trafficking is the
fastest growing international crime and one of the largest sources
of income for organized crime1.Consequently there is
a real risk that criminal organizations
would
seek to compromise any institution or policy that may hamper their operations.
As a result there
is the potential risk
of
the sex offender’s
registry being used as
a means of political gimmickry or
victimization at the local or
regional
level.
An independent monitoring body is
necessary to ensure that no politically motivated victimization occurs.
Perhaps the most important reason why an independent body is necessary; the
wealth of data that the policies under this treaty will create provides an opportunity to do research that will enhance the region’s understanding of the problems
at
hand. It is intended that the COASC form partnerships with universities and research institutions to
analyze the data collected.
Q: Why is external supervision necessary for the Caribbean Organization against
Sex Crimes (COASC)?
A: In order
to ensure the highest standards
of
professionalism and transparency,
external
organizations need to have the right to supervise and intervene in the affairs
of the COASC if necessary.
As seen in Trinidad and Tobago and Jamaica, international
criminal cartels have the ability to compromise or
assassinate high profile individuals (see murder
of
Dana Seetahal) who pose a threat to their organizations.
Thus organizations
like the International Criminal
Police Organization (INTERPOL), Caribbean Community and Common Market (CARICOM)
and
the United Nations (UN) ought to have a say in the affairs
of
the COASC to
ensure that it
is not
compromised by criminal
activities.
If political interference takes place within the COASC
the
Caribbean Court of
Justice (CCJ) is given the power
of Judicial
Review over
the
acts and omissions of the
COASC to rectify any unlawful, ultra vires
or irrational decisions.
Q: Is it
necessary to form partnerships with other organizations and
nation states to achieve the objective of
reducing sex crimes/ human
trafficking?
A: Partnerships with the United States of America (USA), United Kingdom
(UK)
and other nations that have implemented sex offender registries
are necessary for
the
success
of
this policy. Partnerships with INTERPOL and relevant agencies in the USA,
UK and other
nations would be forged through the COASC so that sex offender data is
shared where relevant.
The goal is for every registered offender entering or
leaving the Caribbean region to be monitored. Thus if a registered offender
who is a United States
(US) citizen goes
to the Caribbean region his
movements would be monitored, and vice versa if a Caribbean
person moved to the US or another nation. This data sharing may prove invaluable in
tracking the movements
of
habitual sex offenders and persons
involved in human trafficking.
Q: What other
laws provide the inspiration and/or
basis of this treaty?
The COASC
was in part
inspired by the United States’ International Megan's Law to Prevent Demand for
Child Sex Trafficking (H.R. 4573).The Caribbean Treaty against Sex Crimes and Human Trafficking is intended to work in concert
with this US law to
maximize the effectiveness of both. The International
Megan's Law to Prevent Demand
for Child Sex Trafficking (H.R. 4573) is a bill
that
would require the notification of foreign governments when an American registered as a child sex offender
The bill would require that notice be given to other countries
when registered American sex offenders travel to their countries.[2] The United States Secretary of State would also be allowed to limit or place restrictions on the travel
of
convicted sex criminals.[2] Finally, the bill would ask
the
President of the United States to attain
reciprocal deals with other
countries
so that the United States would be
informed when foreign sex criminals travel
to the United States.[2]
The COASC is therefore a vital
step
forward in international cooperation.
Q: Why create an Obligation
for offenders to register with local authorities and
declare their status as an
offender?
A: In order
to prevent sex offenders from slipping through the proverbial cracks in the bureaucratic
process, it is deemed necessary for
offenders
themselves to register with
local authorities of their own volition.
In the event a
person enters the region
from a jurisdiction that is not partnered
with the COASC, there would be no information immediately available to place
this person on a sex
offender’s registry. It is necessary to have some of these individuals
identify themselves as offenders.
Furthermore making it a criminal offence to enter
the
Caribbean region and stay for
more
than 28 days
without declaring ones’ status as a former
sex offender/human
trafficking offender
would provide a healthy deterrent to individuals involved in illegal sex tourism or human trafficking.
Q: Why Create
Sex
Offender Suspects
Databases and Human Trafficking
Suspects Databases (consisting of
lists of persons charged but
not necessarily convicted
of crime)?
A: It is arguable that if a database were
created of persons who have been charged with sex crimes or
human trafficking, but never convicted, this may be useful for
the following
reasons:
1. For research
purposes
It may be useful for research purposes to have a
database of all charges/indictments for these types
of
crimes. This may allow patterns and trends
to
be discovered that may aid
law enforcement. There is no telling the findings
skilled analysts and data scientists may acquire from this
data.
2. As similar fact evidence to help
convict serial offenders
Many nations in the Caribbean suffer from an abysmally low conviction rate due to
cases
being thrown out for
technical reasons before trial.
In
some cases the victim
refuses
to
testify or withdraws the case against the perpetrator out of fear or
intimidation.
If it can be shown that a particular person committed similar
crimes in multiple
jurisdictions via this suspect’s database, this may prove useful
as
evidence to convict someone who may be slipping through the legal
system.
For example someone who is charged with rape in Barbados,
St. Vincent and Antigua but has never
been convicted ought to be heavily investigated and this
database will aid
such
investigation.
This database is never
to be kept highly confidential and
never
to be made available to
the
public at large.
This policy will
raise valid objections
as
there may be fears as to the confidentiality of this
data. A defendant’s
right to be seen as innocent until proven guilty, and their ‘right
to be forgotten’ may
be
infringed by this
policy.
Some Potential objections to this policy are rebutted by the following argument: In our small Caribbean societies when a person is charged with a major offence the
media often reports it and the nation at large is
made aware of this fact. A permanent database arguably already exists in
the news archives
of
every island.
In conclusion
this policy while desirable is
not essential to the overall goal of the treaty.
As such it may be removed in the final draft of the treaty if it is too objectionable to the
state parties involved.
Q: Why place limitations on registered
offenders?
A: It is
essential that limitations be placed on registered sex offenders to
prevent situations
that may allow them to reoffend. It would be absurd for example, to allow a registered offender convicted of child molestation to work at a
kindergarten.
Q: Why is Victims Support necessary?
A: Victims support is essentially assisting
persons in dealing with the consequences
of a crime. It entails
providing the emotional and practical help needed to overcome the
trauma inflicted by criminal activity. Victims
support
is not just specialized psychological counseling. Sometimes it involves
being there to help a victim of rape, staunch profuse
bleeding and change out of torn and tattered clothing. It is usually an emotionally draining process for both victim and counselor.
Victims support is
essential
in aiding persons
in reporting crime and in bringing perpetrators
to
justice. Victims
of
sex crimes rarely report
crimes out of fear or shame. In the case of child sexual
abuse the problem is compounded by their dependence on
an
adult to take them to the police station to make a report. Victims support
is what bridges
the
gap between the trauma of the crime and making the report
to the police.
According to the US Justice Department, National
Crime Victimization Survey:
2008-2012 only 2% of rapists will ever
serve a day in prison. Furthermore 68% of sexual assaults are not reported to the police. Better
victims support is essential in aiding in increasing the number of successful convictions in our
region. While proper data seems to be lacking, one gets the impression that victims
support is severely lacking in the
Caribbean region.
Q: What is the Victims Advocacy Service Center (VASC)
A: This is policy created by the Organization for
Abused and Battered Individuals
based
on
similar models
in the US, UK and Europe. The VASC shall be a supplementary
agency which provides a safe space for
victims to acknowledge and address the crimes committed against them. It shall function as
a necessary bridge between victims, law
enforcement, medical professionals
and the judiciary, to facilitate the effective administration of justice.
The VASC shall also provide sensitivity training
to the family members of victims, civil society, medical
and legal professionals and law enforcement agencies, as well as the general public. This
is to ensure that the administration
of justice is victim-focused. It shall facilitate the empowerment of victims through lobbying for
the
provision of transitional
housing facilities, the promotion of education as an emancipative tool, counseling, job creation and financial support. This will serve as
a foundation to economic stability and self-sufficiency.
Alongside these goals, the VASC shall offer victim assistance services, including
the
provision of information on victimization, crime-prevention, legal rights and
protections, the criminal
justice process, safety planning and services offered through other agencies.
The VASC shall offer practical
assistance with emotional health and support,
compensation applications, dealing with creditors,
landlords and employers,
the acquisition of housing and transportation and notification on the investigation and
court processes, as
well as
the
release of offenders.
Q: Why is it necessary to establish Victims Advocacy Service Centers throughout
the
Caribbean?
A: A core goal
of
the treaty is to establish Victims
Advocacy Service Centers throughout the Caribbean by creating a legal obligation for
states signing the treaty to do so. This is essential
in order to help victims
of
sex crimes and human trafficking.
It is believed that Victims
Advocacy Service Centers will help increase the
conviction rate of sex crimes
and thus make the Sex Offenders Registry more effective. Once the conviction rate increases
there will be less
sex
offenders and human
traffickers
on
the streets, and the incidences of these crimes
ought to decrease as a result.
Q: Why should parties to the treaty provide more funding
to civil society organizations?
A: Civil Society organizations are
the main providers
of support
to
victims of gender
based violence worldwide. These organizations are more versatile than government
based institutions and fill the niches that state departments may be unable to reach.
It is essential
that they be provided financial
support
in order
to better
serve victims of
gender
based violence which includes sex crimes and human trafficking.
Q: Why provide treatment rehabilitation for
past or potential offenders?
A: A core goal
of
the criminal justice system is to rehabilitate offenders so that they
become productive members of society once more. It is in the best interest of society as
a whole that offenders be empowered to leave their antisocial and self-destructive
behaviors behind and recover from whatever psychological
disorder may be behind their crimes.
In a handful
of
instances
persons suffering from disorders such as pedophilia
voluntarily turn themselves in or
ask for help in overcoming their condition. Some mechanisms
ought to be put in place to allow these persons
to
get the help they need before they hurt innocent people.
Q: Why assist registered
offenders in finding employment?
A: It is always
difficult for
an ex-convict to find employment,
even more
so for someone
who may be placed on a public
sex
offender registry. Research has shown that persons
on
a public
sex offender’s registry in the US may be at a higher risk
of
recidivism (going back
to
their criminal ways) due to the pressures
involved. Furthermore
the
government
has an interest in ensuring that registered offenders are
not placed into jobs that may facilitate
their predilections
and tempt them
to reoffend e.g. pedophiles
should be kept
away from schools.
Notes from Consultation :
A Mr. Paul Daniel Nahous raised the point that the policy of having all charges for sex crimes on one database regionally could backfire. If someone conspired to bring false charges against an individual it would destroy that persons permanent record and make the data collected from this policy useless.
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