Rape and Sexual Assault

Q: Could you explain rape and the laws regarding it in Trinidad and Tobago?

A: Firstly, many people wrongly use the terms "rape" and "sexual assault" interchangeably. I've seen the Trinidad Express reporters do this on numerous occasions...

In a nutshell, rape is always sexual assault but sexual assault is not always rape.

RAPE

In Trinidad and Tobago, the definition of Rape is found in Section 4 of the Sexual Offences Act (as amended).
4. (1) Subject to subsection (2), a person (“the accused”) commits the offence of rape when he has sexual intercourse with another person (“the complainant”)—

• (a) without the consent of the complainant where he knows that the complainant does not consent to the intercourse or he is reckless as to whether the complainant consents; or 

• (b) with the consent of the complainant where the consent—
  • (i) is extorted by threat or fear of bodily harm to the complainant or to another;
  • (ii) is obtained by personating someone else;
  • (iii) is obtained by false or fraudulent representations as to the nature of the intercourse; or
  • (iv) is obtained by unlawfully detaining the complainant.

SEXUAL ASSAULT
Sexual Assault is defined in Section 4A of the Sexual Offences Act (as amended).
4A. (1) Subject to subsection (2), a person (“the accused”) commits the offence of grievous sexual assault when he commits the act on another person (“the complainant”)—

• (a) without the consent of the complainant where he knows that the complainant does not consent to the act or he is reckless as to whether the complainant consents; or 

• (b) with the consent of the complainant where the consent—
  • (i) is extorted by threat or fear of bodily harm to the complainant or to another;
  • (ii) is obtained by personating someone else;
  • (iii) is obtained by false or fraudulent representations as to the nature of the intercourse; or
  • (iv) is obtained by unlawfully detaining the complainant.

WHAT'S THE DIFFERENCE?
The difference between the two is that rape generally involves penetration, whether it is of the vagina, anus or mouth; whereas, sexual assault will include any kind of unwanted sexual activity (I used "activity" instead of "contact" because some definitions include words as a form of assault).



MARITAL RAPE
Up until 1991, marital rape was rejected as an impossibility by English courts because they believed that a wife gave her consent to sex by getting married. The law in Trinidad & Tobago states that it is possible for a husband to sexually assault a wife, but in regards to rape, I am inclined to believe that should a case of "marital rape" arise, the English law will be effective.

Brocards

A brocard is a legal principle/term, expressed in Latin. 

When I attended law school in England, the Lecturers stressed the importance of using brocards in exams. The reason was that its correct usage illustrated a thorough understanding of the subject matter and therefore resulted in better grades.
Now that I am a Law Lecturer, I want to also ensure that my students are very familiar with the terms, hence this list:


Ab Initio
From the beginning

Inadimplenti non est adimplendum 

"One has no need to respect his obligation if the counter-party has not respected his own." This is used in civil law to briefly indicate a principle (adopted in some systems) referred to as the synallagmatic contract

Dura lex, sed lex 

"The law [is] harsh, but [it is] the law".

Ignorantia legis non excusat 

"Ignorance of the law is no excuse." 

In claris non fit interpretatio 

When a rule is clearly, there is no need to interpret. (i.e., self-explanatory)

Iura novit curia 

The judge knows the law (technically, there is no need to "explain the law" or the legal system to a judge/justice in any given petition).

Nemo dat quod non habet

You cannot give what you do not have. This is a principle widely cited when considering the transfer of property rights, and is most commonly understood as referring to those situations where title to certain property held by the transferee may be void if the transferor never had title to that property in the first place.

Nullum crimen, nulla poena sine praevia lege poenali 

No crime, no punishment without a previous penal law

Pacta sunt servanda

Agreements must be kept

Res inter alios acta vel iudicata, aliis nec nocet nec prodocet 

What has been agreed/decided between people (a specific group) can neither benefit nor harm a third party (meaning: two or more people cannot agree amongst each other to establish an obligation for a third party who was not involved in the negotiation; furthermore, any benefit that may be established will have to be accepted by the third party before it can be implemented). This is called "Privity of Contract" in Contract Law.

Restitutio in integrum - Restoration to original condition. Generally used in the Law of Tort.

Ubi lex voluit, dixit; ubi noluit, tacuit 

When the law wanted to regulate the matter in further detail, it did regulate the matter; when it did not want to regulate the matter in further detail, it remained silent (in the interpretation of a law, an excessively expansive interpretation might perhaps go beyond the intention of the legislator, thus we must adhere to what is in the text of the law and draw no material consequences from the law's silence)

Here is a list of many more brocards!

The Courts of Law

What are the different types of Courts in Trinidad and Tobago?

ÒPrivy Council (Although we may see a move to the Caribbean Court of Justice in the near future, for criminal matters )

ÉDeals with appeals from the Court of Appeal

ÒSupreme Court {Court of Appeal & High Court}

ÒHigh Court

ÉIndictable criminal matters  (require jury)

ÉCivil matters over TT$15,000

ÉFamily matters for married couples only

ÉAppeals go to the Court of Appeal

ÒMagistrates Court - Court of first instance for

ÉSummary criminal offences

ÉCivil matters

ÒFamily Court

Paternity Test Order

Q: I am an outside child and my father is denying me, how can I get him to have a paternity test done?

A: According to Section 10 of the Status of Children Act 1983, as amended, you can apply to the court to order the paternity test.

Hail Chelsea!

 CONGRATULATIONS CHELSEA! 

"WE" ARE THE CHAMPIONS!

What a match! WOW! Please indulge me as I take time out to congratulate my favourite football team. When it comes to club football, Chelsea was, and still is my "home team" because I lived right across the Thames river from Stamford Bridge. I have supported Chelsea for many years, and I will continue to do so for many more.

ALL HAIL DROGBA!

T&T's First Time Home Purchase Programme

The issue of home-ownership being a privilege and not a right came up in a casual conversation; sooooo... this blog entry is not as a result of a question from one of the 50,000+ visitors to this website since 2010, but I thought it would be useful information for many who I'm sure do not know.

Taken directly from the government's website:
 
What is the First Home Purchase Subsidy?

The programme is designed for persons who would like to acquire their first house, but would not qualify for the mortgage because of limited finances.

Who can apply for this Programme?

Any citizen of Trinidad and Tobago who has identified a home for purchase and requires assistance to buy a home.


What are the necessary criteria?

• The applicant must not own any property for dwelling purposes
• Total household income must fall within one of the two income brackets listed below:

Annual income	Maximum Home value	Subsidy amount
$ 24,000.00- $40,000.00	$215,000.00	$50,000.00
$ 40,001.00- $65,000.00	$215,000.00	$35,000.00

(Please note the higher your annual income the lower the subsidy)



What are the documents to be submitted?

a.    Birth Certificate.
b.    ID or Passport.
c.     Evidence of citizenship (if applicable)
d.    Marriage Certificate. (if applicable)
e.    Certificate of title/ Deed.
f.      Recent pay slip and job letter, where people are self employed an affidavit attesting to their income would be accepted.
g.    Quotation for construction
h.    Affidavit stating that they do not own any property for dwelling purposes.

Do I have to repay this subsidy?

Yes.

Swords: Offensive Weapons?

Q: Good day, is it legal for someone to carry a sword on their person in public?


A: Firstly, I must say that this is the strangest question I have ever been asked.

To answer your question:

The Restriction of Offensive Weapons Act 1960 prohibits "the importation, manufacture, sale or other disposition of certain offensive weapons". There is no definition of an "offensive weapon".

The Prevention of Crime (Offensive Weapons) Act 1953 prohibits "the carrying of offensive weapons in public places without lawful authority or reasonable excuse".

The Act seeks to add clarity by including the following definitions:

• “public place” includes any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise.
• “offensive weapon” means any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him.
  

This law is flawed because of the definition of an offensive weapon. "Adapted for use for causing injury" is subjective. Which is capable of causing more harm: a well sharpened pencil or a blunt sword?

The Act basically implies that a weapon is only offensive if the person in possession of the weapon has the intention of using it to injure. So technically, one can walk in public with a sword just for show and still fall within the remit of the law.

Regardless of this archaic, poorly written legislation, I would not advise you to walk around with a sword, or similar object, unless, maybe, it's sheathed and definitely not intended to be used as a weapon. However, the Police do the arresting, and I'm sure that you will be arrested for such an act.

Attorney complaints in Trinidad and Tobago

Q: I paid an Attorney for a service since September 2011 and he has not done anything. He has refused to give me a full refund, instead offering to return half of what I gave him. 

A: Every client has a right to file a complaint or grievance against an Attorney who has acted in an unethical, incompetent, or criminal manner.

Unfortunately, there are a lot of quacks in Trinidad and Tobago calling themselves Lawyers, who fall into one, or all of the aforementioned categories.

Here are the steps to follow if you are not satisfied with your Attorney's performance:

1. Raise your concern with your Attorney in writing.

2. Consult with another Attorney. If you can't afford it, contact the Disciplinary Committee at the Hall of Justice.

3. At the offices of the Disciplinary Committee you will be given two forms:
Form 1 is the formal application to the Disciplinary Committee.
Form 2 is an affidavit which must be sworn by you before a Justice of the Peace/Commissioner of Affidavits/Notary Public.

I STRONGLY suggest that you consult an Attorney because these forms may be too complicated for non-legal minds.

Unfair Competition

Q: Can an employee leave my company and start a similar company next door?



A: So you hired someone, trained him/her in every aspect of your business and the industry, then one day, that person quits...  and then one week later, that person opens a similar business next door.

It seems unfair, but generally, nothing can be done about it because competition is seen as an imperative part of a democratic society.

An employer cannot sue the employee unless the new business acts in a manner that is contrary to the
Protection Against Unfair Competition Act 1996, as amended.

The Act states that the competition must not:
#1 - Confuse customers with the existing company; similar name, logo, appearance or presentation.

#2 - Damage the reputation of the existing company

#3 - Mislead the public about the existing company's products or services

#4 - Discredit the existing company's products or services, usually through advertising

#5 - Use of secret information, such as the copying of client details to take to the new company.



To avoid this from happening, employers can include a non-Solicitation/non-Compete clause in the employment contract, so that they can have some legal recourse.

Drug Trafficking law in Trinidad and Tobago

Q: What is the sentence for drug trafficking in Trinidad and Tobago?

A: According to Section 5(5) of the Dangerous Drugs Act 1991:

"...a person who commits the offence of trafficking in a dangerous drug or of being in possession of a dangerous drug for the purpose of trafficking is liable upon conviction on indictment to a fine of one hundred thousand dollars or, where there is evidence of the street value of the dangerous drug, three times the street value of the dangerous drug, whichever is greater, and to imprisonment for a term of twenty-five years to life."

Employment Rights: Constructive Dismissal

Q: Can I be fired with immediate effect?


A: Part 4

When an employee is forced to quit because of intolerable behaviour by an employer, it is called Constructive Dismissal. In order to prove this, the employee must show that:

1. The employer committed a serious breach of contract
2. He/She felt forced to leave because of that breach
3. He/She did not do anything to suggest acceptance of the breach, or change in employment conditions


Examples of Constructive Dismissal:

1. Not supporting managers in difficult work situations.

2. Harassing or humiliating staff, particularly in front of other less senior staff.

3. Victimising or targeting particular members of staff.

4. Changing the employee's job content or terms without consultation.

5. Making a significant change in the employee's job location at short notice.

6. Falsely accusing an employee of misconduct; e.g. theft or being incompetent

7. Excessive demotion or disciplining of employees

8. Failing to provide a safe place of work

9. Cutting - or trying to cut - an employee's wages or salary or other contractual benefits without their agreement

Employment Rights: Unfair Dismissal

Q: Can I be fired with immediate effect?


A: Part 3

Unfair dismissal occurs when an employee can prove that the reason for the dismissal, or the process used to dismiss them was "unfair". So obviously, the question you're asking at this point is...


What constitutes Unfair Dismissal?
A - The employer dismisses the employee without a fair reason as listed below:
    1. Gross Misconduct
    2. A reason related to the employee's capability or lack of qualifications
    3. Retirement of the employee
    4. Redundancy
    5. A legal requirement prevents the employment continuing (e.g., the employee is employed as a driver but no longer holds a driving license)

B - The employer fails to follow the correct dismissal process
    1. Sending a letter
    2. Arranging a meeting
    3. Telling you their decision
    4. Allowing an appeal


C - The employer dismisses the employee for an automatically unfair reason.

Automatically Unfair Dismissal
There is NO defence to an automatically unfair dismissal, which can include:
1.) Dismissal for asserting a statutory employment right

2.) Unfair dismissal before, during or after business transfers

3.) Discrimination

4.) Unfair retirement

5.) Dismissal in violation of pregnancy/maternity rights

6.) Dismissal following a failure to comply with statutory disciplinary or grievance procedures

7.) Unfair dismissal related to working patterns & time

8.) Unfair dismissal for an issue related to trade unions

9.) Unfair dismissal during an industrial dispute

10.) Dismissal for a reason connected to the National Minimum Wage

11.) Dismissal relating to activities as an occupational pension scheme trustee

12.) Dismissal for taking legitimate steps to ensure the observance of health and safety work place requirements

13.) Dismissal for carrying out the functions of an elected employee representative or candidate for election or taking part in an election

Employment Rights: Wrongful Dismissal

Q: Can I be fired with immediate effect?


A: Part 2

An employer can terminate an employee's contract at any time for any legitimate reason, provided that they give the employee reasonable notice or compensation in lieu of reasonable notice. This means that the employee must be given minimum notice equivalent to the pay period; i.e., a weekly paid worker would require 1-2 weeks* and a monthly paid employee would require 3-4 or more* depending on the length of service. The employer also has the option of firing this employee on the spot and paying them for the notice period.

Wrongful Dismissal involves a breach of contract or the law regarding the contract as stated above. In other words, the "wrongful" is only associated with the WAY in which the employee was terminated, not the REASON for the termination.

Wrongful dismissal occurs when an employee is dismissed without notice; too short notice; contrary to the terms in the employment contract; or when "a worker has been dismissed in circumstances that are harsh and oppressive or not in accordance with the principles of good industrial relations practice", according to Section 10(5) of the Industrial Relations Act 1972, as amended.


*N.B. - A shorter notice period may be used if it can be justified.

There is NO QUALIFYING PERIOD for Wrongful Dismissal, so an employee can bring a claim for this at anytime during employment. 

Employment Rights: Summary Dismissal

Q: Can I be fired with immediate effect?


A: Part 1

A summary dismissal is legal, but ONLY when an employee is fired with immediate effect for gross misconduct. Gross misconduct is behaviour that makes it immediately and definitively impossible to maintain an employment relationship. Examples of this are:

• Criminal damage to work property
• Being under the influence of drugs or alcohol during work hours
• Theft or fraud
• Discrimination or harassment of others in the workplace
• Negligence
• Breach of company policy (improper use of internet, phone, etc.)
• Insubordination
• Falsifying experience and qualifications or general incompetence
• Leaking confidential information

A summary dismissal still requires proper procedure, i.e., the employee must receive a letter notifying him/her of the dismissal, which must explicitly detail the misconduct of which the employee is being accused. If this is not the case, the dismissal is unfair.

N.B. The employer does not need proof of the misconduct; suspicion is enough.

Joint Child Custody or Contact

Q: My wife does not want me to see my son, what can I do?




A: In my opinion, Joint Custody is best for the child to know both parents, so the following information is tailored towards that opinion.

The law governing applications for custody of children under the age of 18 years, in the Magistrates’ Court, can be found in the Family Law (Guardianship of Minors, Domicile and Maintenance) Act 1981.

By making an application for custody of a child, a person is applying for the right to possession and care of the minor, including:

the right of physical control over the child;

the right to discipline the child;

the right to control the education of the child;

the right to protect the child; and

the right to make medical decisions affecting the child.

According to Section 4, both father and mother have EQUAL rights, so here's the process.


Who can make an application?

A father or mother of a child can apply for custody, regardless of whether the parents are married to each other.

Any other person, not being a parent of the child who the court thinks has a sufficient interest in the child, for example, relatives such as grandparents, aunts, or older siblings, can also apply.


How to make the application?

(1) Make a plea before a Justice of the Peace or a Clerk of the Peace at the Magistrates’ Court in your district.

A plea concerning the reasons why you should be granted legal custody is done in an interview between you and the Justice of the Peace.

In the interview, you need to show that you are the child’s parent, if this is the case, and you must take with you proof of this. The child’s birth certificate can prove this. If you are not a parent, you must establish that you have a sufficient interest in the child.

On the basis of your plea, and the interview, the Justice of the Peace has to determine if you have sufficient grounds to make the application.

If the Justice or Clerk of the Peace finds that you have grounds to make the application, you are then directed to do so.

The application is made by completing a standard form for both married and unmarried people, which is given to you at the Magistrates’ court. You then take the completed form to the process or counter clerks to pay an application fee, and have the application processed.

If the child's parents are married, the fee is a standard three dollars (TTD$300), irrespective of how many children the application is being made for.

If the child's parents are not married, the fee is three dollars (TTD$300) for each child being applied for.

After the application is made, a court date and a summons is made out in the name of the parent or person to be excluded from custody.

You must take the summons to the summons officer in the police station nearest to which this person lives. It is your responsibility to ensure that the summons is served on the person.

You should provide the summons officer with the person’s proper address, and also make periodic checks with the officer to see that the summons has been served.

Once the summons has been served, the officer who delivered the summons signs a return of service form which is included in the court’s file for your matter.

If on the date that the matter has been assigned, the matter is called, and the summons has not yet been served (which will appear from the absence of the return of service form), then the matter will be adjourned until the person is served with the summons.


What happens when the matter is called?

When the matter is called, and you and all the other persons concerned are present, the court will ask whether the application is contested by the other parent (does the other parent agree or disagree to custody application). If it is uncontested, the court will proceed to deal with the matter immediately.

The court will grant custody of a child, if it thinks it fit, having regard to the welfare and the best interests of the child. The welfare of the child is the first and most important consideration above all others

On granting custody to the applicant, the court will usually grant a right of access to the child to the other parent or person(s), and may then go on to make an order requiring that the parent or person(s) excluded from custody pay to the parent granted custody, periodic payments for the maintenance of the child.

Where the application for custody is contested, the court usually makes a temporary order for custody of the child, until the final determination of the matter.

Trinidad and Tobago Pepper-Spray Law

Q: Is it illegal to carry pepper-spray in Trinidad and Tobago?



A: Yes it is. According to Section 2 of the Firearms Act 1970, a "prohibited weapon" includes "any weapon of whatever description or design which is adapted for the discharge of any noxious liquid, gas or other thing."

While myself and others think legalising pepper-spray (to be used ONLY for SELF-DEFENCE) is an excellent idea -especially for the protection of women- Trinidad and Tobago along with many other countries in the world continue to keep it illegal.

Despite the illegality of the product, many women still carry it, with the Indonesian capital, Jakarta, endorsing its use by women for their protection against rapists.


N.B: Mace is not an alternative to Pepper-Spray; instead, it is the name of the company that invented it and remains the market leader.