HANDBOOK TO THE CARICOM TREATY FOR THE ESTABLISHMENT OF PUBLIC SEX OFFENDER REGISTRIES

 

HANDBOOK TO THE CARICOM TREATY FOR THE ESTABLISHMENT OF PUBLIC SEX OFFENDER REGISTRIES

Written by Jonathan Bhagan LLB. L.E.C. for 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.  

          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 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.

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Q: What are the objectives of the Treaty?

1. To establish a regional sex offenders registry and mandate that signatories establish local sex offenders registries;

2.        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).

3.        To mandate that signatories bring their laws and policies dealing with sex crimes in accordance with international law and international best practice.

4.       To mandate that signatories establish victims’ support units in their respective jurisdictions to provide practical assistance to victims of sex crimes;

5. To mandate that a system of treatment, rehabilitation and reintegration be established for former offenders in ensuring that their rate of recidivism is reduced and are able to integrate into society;   

6.        To ensure that a convicted perpetrator of a sex crime is never employed in a situation that facilitates their predilections; and

7.        To introduce measures that increase the conviction rate of perpetrators of sex crimes, deter future offenders and also in accordance with human rights law, protect these offenders from discrimination.

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 laws 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: 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.

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.

Q: What other laws provide the inspiration and/or basis of this treaty?

The treaty 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

is going to be traveling to their country.[1][2]

The bill passed the  United States House of Representatives during the  113th United

States Congress.

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]

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.

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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 Treaty to deal with any offences that have the same constituent elements as those listed in the Schedule to the Treaty e.g. the act of Grabbing someone’s genitals would be 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 every nation’s sex offenders registry onto one regional database without conflicts.

This work around will enable the regional registry to begin operation without each signatory state amending their sexual offences 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 regional sex offender registry. Furthermore sex crimes equivalency schedules can be created for every nation who may partner with the sexual offences registry 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/sexual activity , 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 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.

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.

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.