HANDBOOK TO THE CARIBBEAN
TREATY AGAINST SEX
CRIMES
Written by Jonathan Bhagan LLB. L.E.C. for the Caribbean Committee Against Sex Crimes
This draft handbook
seeks to explain and expound 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 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. All these terms are synonymous in international law and are thus treated equally, regardless of the terminology employed.
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 for
citizens of signatory nations, whose rights have been infringed upon, 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 necessary?
(i). To safeguard against
convicted offenders moving from one Jurisdiction to
another.
At present, methods
used to deal with individuals
who have previously been convicted
of
sex crimes and move from one country to another are insufficient. This
was 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 a girls’
school in Trinidad.
Under this treaty, such offenders would be made to register in any country
which they reside, and would also
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 types of crimes. Most victims
of
sex crimes never report, due
to fear or shame.
Further, unless victims are
properly counseled and coached, they may be
ineffective
as witnesses at trials.
(iii). Some Caribbean Territories have no
sex offender’s registry.
Based on preliminary research, Trinidad and Tobago and Jamaica are
the only Caribbean countries with sex offender registry policies. The remainder of the
Caribbean does not seem to have such polices
employed.
(iv). To create an international organization called the Caribbean
Organisation against Sex Crimes (COASC).
As chairman of the legal committee, I concluded that it was imperative that a specialized international organisation be formed, in order to fulfill the objectives of the Caribbean Committee Against Sex crimes. This organisation is to be funded by a special trust fund, so as to keep it politically neutral. The most effective way to create such an international organisation is via a treaty.
Q: What are the objectives of the Treaty?
As chairman of the legal committee, I concluded that it was imperative that a specialized international organisation be formed, in order to fulfill the objectives of the Caribbean Committee Against Sex crimes. This organisation is to be funded by a special trust fund, so as to keep it politically neutral. The most effective way to create such an international organisation 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.
2.
To establish a regional sex offenders’ registry and mandate that signatory
states establish local sex offenders’ registries. The local registries would
then be used to create and update the regional registry.
3.
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).
4.
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.
5.
To mandate that a system of treatment, rehabilitation and reintegration
be established for former offenders. This will help reduce the chances of them
committing new crimes.
6.
To ensure that convicted perpetrators of sex crimes are never employed
in situations that facilitate their inclinations. In other words, we don’t want
a paedophile working in a kindergarten.
7.
To implement measures that increase the conviction rate of perpetrators of
sex crimes and to deter persons from becoming future offenders
8.
To mandate that signatories to
the treaty synchronize their legislation and policies with respect to sex
crimes and victims support and bring them in line with international best
practice.
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 (e.g. Public Schools and Universities) cannot do so easily.
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. This freedom of movement
increases 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 whether there
is net benefit or disadvantage to a public registry, such as the one in the USA. There is
a risk
that persons may stalk, victimize or target these
registered offenders with criminal intent. As such,
the pros and cons of publishing the registry online must be thoroughly weighed and analyzed.
On the other hand, it is essential 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 Gender Based
violence and domestic violence issues along with sex crimes?
A: The fully functional Victims Support Unit, which
assists victims
of
sex crimes,
has
the
same
facilities and staff necessary to provide basic assistance to victims
of
gender based violence and domestic violence.
Capitalizing on the availability of same staff and
facilities, to deal
with serious
cases of domestic and gender based violence alongside sex crimes, maximizes benefits for output
and makes the Victims Support Unit more effective. Victims of domestic abuse are often also victims
of rape. Thus, sex crimes and
domestic violence sometimes
interrelate.
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 in general. Sovereignty of COASC minimizes the
possibility of corruption, which would undermine the efforts to achieve the
objectives of the treaty.
There is the potential risk of the sex
offender’s registry being used for political gain or for blackmail or
victimization at the local and regional levels. An independent monitoring body
is necessary to ensure that no politically motivated victimization occurs.
The
most cogent reason for the COASC’s independence lies in the wealth of data that
the policies implemented under the treaty shall create. These shall provide several
research opportunities, which shall enhance the region’s understanding of the
problems being addressed. It is intended
that the COASC forms partnerships with universities and research institutions,
to analyze collected data.
.
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.
Various cases in both
Trinidad and Tobago and Jamaica
suggest that international
criminal cartels can
compromise or even assassinate high profile individuals, who pose a threat to their
organizations (see murder
of
Dana Seetahal).
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 occurs within the COASC, the Caribbean Court of
Justice (CCJ) is given the power of Judicial Review over its acts and omissions, in order to correct any unlawful, invalid, unreasonable or prejudiced decision.
Q: Is it
necessary to form partnerships with other organizations and
nation states to achieve the objective of
reducing sex crimes?
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 comes to
any country within the Caribbean region, his
movements would be monitored, and vice versa. This sharing of information could prove invaluable in
tracking the movements
of
habitual sex offenders.
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 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.
Further, making it a criminal offence to enter
the
Caribbean region for a stay
longer than 28 days, without declaring ones’ status as a former sex offender,
would provide a healthy deterrent to individuals involved in illegal sex tourism.
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 become repeat offenders. It would be absurd for example, to allow a
registered offender convicted of child molestation to work at a
kindergarten.
Q: How does this Treaty deal with the issue of the differences between the laws dealing with Sex Crimes in each Nation State?
One obstacle to a regional Sex Offenders registry is that each nation state has different laws dealing with Sex Crimes. An act that may be considered aggravated sexual assault under one nation’s legislation may be considered rape in another nation.
To deal with this issue a special clause was drafted that provides for the Treaty to deal with sex crimes regardless of what terminology each nation state uses to categorize them. The clause provides for the COASC to deal with any offences that have the same constituent elements as those listed in the Treaty e.g. the act of Grabbing someone’s genitals would used to categorize the crime in question regardless of what any nation may call said crime.
Essentially a sex crimes equivalency schedule would be created for each nation state. Each sex crime would be categorized according to the acts that constitute the crime and the relevant legislation criminalizing said act in every nation state. Then these acts and their local legislation would be matched up with the terminology used by the schedule of sex crimes provided for in the Treaty.
This is necessary in order to bring ever nation’s sex offenders registry onto one regional database without conflicts.
This
work around will enable the COASC to begin operations without each signatory
state enacting new legislation in their respective parliaments. This will also help
preserve the sovereign right of each state to determine its own local
legislation to some extent ; if a signatory to the treaty makes a reservation
against enacting newer legislation dealing with sex crimes they can still be
part of the COASC and the regional sex
offender registry.
Furthermore sex crimes equivalency schedules can be created for every nation who may partner with the COASC outside of the Caribbean region e.g. the United States, Canada, the United Kingdom, nations in Latin America and the European Union.
If however a country has no criminal offence for a particular act that is criminalized on the Treaty e.g. grooming an child for the purposes of trafficking , it would be necessary for that country to bring its laws in line with what is dealt with in the Treaty. However there would still be freedom for said country to enact its own penalties and policies in dealing with said sex crimes.
Furthermore sex crimes equivalency schedules can be created for every nation who may partner with the COASC outside of the Caribbean region e.g. the United States, Canada, the United Kingdom, nations in Latin America and the European Union.
If however a country has no criminal offence for a particular act that is criminalized on the Treaty e.g. grooming an child for the purposes of trafficking , it would be necessary for that country to bring its laws in line with what is dealt with in the Treaty. However there would still be freedom for said country to enact its own penalties and policies in dealing with said sex crimes.
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 they endure, as a result of criminal activity. Victims support is not only specialized psychological
counseling. It sometimes involves being there to help a victim of rape, with profuse
bleeding, to 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, to aid in
increasing the number of successful convictions in our
region. Although proper data is lacking, one can infer that there is a dearth of victims
support in the
Caribbean region.
Q: What is the Victims Advocacy Service Center (VASC)
A: This is a 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.
It is believed that Victims
Advocacy Service Centers will help increase the
conviction rate of sex crimes,
thus making the Sex Offenders Registry more effective. Once the conviction rate increases
there will be less
sex
offenders on the streets. 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 and
sex
crimes.
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 that offenders be empowered to eschew their antisocial and self-destructive
behaviors 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
reoffending, 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.
e.g. pedophiles
should be kept
away from schools.
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