by Rawlston Pompey
When world renowned social commentator, Slinger Francisco, ‘Mighty Sparrow’ paid tribute in song to the newly independent nation, ‘Trinidad and Tobago,’ he was proud that the umbilical cord of ‘Colonialism’ was severed. This was what he sang, ‘…Trinidad and Tobago will always live on; …Colonialism gone, our nation is born; …We want to achieve; …We going to aspire; …We bound to be a success’ [Model Nation: August 31, 1962]. The same sentiments may have been said of ‘Antigua and Barbuda.’ When the nation attained political independence from Britain, it also gained its membership within the community of nations as a ‘sovereign and democratic nation’ [November 1, 1981].
VESTIGES OF COLONIALISM
History will show, and posterity will know of this nation’s aborted attempt at removing one of the lingering ‘Vestiges of Colonialism.’ The annals will also be shown that more recently there was a failed attempt to dispense with the appellate services of the London ‘Judicial Committee Privy Council (JCPC).’ Even so, what remains and keeps surfacing within the ‘Criminal Justice System,’ are said to be some very troubling ‘judicial practices and trends.’ The inherited judicial practice, derived from the British jurisprudence, speaks to its ‘structure, operations and staffing of the Judiciary. In certain particularized manner of adjudication, citizens may have been given good reasons to believe, and do believe, that the ‘Criminal Justice System’ shows evidence of ‘Jurisprudential Malpractice.’
This commentary looks at a specific Case in which a female minor, at the time, not yet ventured over the border of ‘Pre-teen.’ She was allegedly ravished by a ‘then 19 year-old male’ [January 2019]. Both have now attained the respective ages of ’21 and 14 years.’ The self-convicted ‘sex offender’ had not only violated the dignity of the ‘then 12 year-old female,’ but also provisions contained in the ‘Sexual Offences Act (SOA).’ Enacted as a ‘Strict Liability offence,’ it is solely intended for the ‘…protection of girls’ [Section 5: No. 9 of 1995: Laws of Antigua & Barbuda]. The commentary further looks at two ‘Peculiar Sentences.’ These have not only provoked victims, parents and guardians and social activists to anger, but also drove peace-loving and law-abiding citizen into anguish and despair.
CRIMINAL JUSTICE SYSTEM
In a Law enforcement career that had; (a) …Spanned over three decades; (b) …With involvement in criminal investigations; (c) …Appearing as before Judges and Juries as witness for the Prosecution; (d) and …Engagement in the conduct of Preliminary and Committal Proceedings’ on behalf of the ‘Director of Public Prosecutions (DPP),’ it was not to the professional knowledge or experience that convicted ‘sex offenders’ have ever been; (a) …Slapped with the imposition of a Fine; or (b) …Being placed on probation’ by any adjudicator for any sex-related offence.
This is avoidable, but only to the extent that adjudicators learn lessons from the ‘Adjudication Attitude’ of Vincentian adjudicator, ‘His Lordship Justice Brian Cottle.’ When convicted ‘Child-rapist Pastor Delroy Fraser’ found himself on the opposite side of the law, he had failed to heed the scriptural teaching to ‘Suffer the little children to come onto me’ [KJV: Matthew 19: 14]. Under watch of the devil, he allegedly had ‘sexual intercourse with a child of tender years. Showing the Court’s, displeasure, if not abhorrence to such despicable criminal act, the Justice Cottle was in no mood to be fooled by sentimentality and slapped a ‘…30-year jail sentence’ upon the devilish Pastor [IWN: July 14, 2020]. In judicial language, such is considered a ‘Life Sentence.’
Consequent upon such sentences, it has been the view of many citizens that the ‘non-deterrent effect’ of these sentences has the potential to cultivate and saturate the society with more ‘Social Miscreants.’ That which might be discerned, is that a judicial practice and a developed trend, continue to provoke angst in victims and consternation in members of the wider society. Many victims have seen ‘felons’ walked away smiling gleefully over that which is capable of being described as ‘…scandalous; …grossly insensitive; …disgusted; …annoying and meaningless sentences. Those enacting laws for the protection of society, aimed with specific mischief, must now see the futility of their ‘…legislative agenda; …efforts and intention.’
SEPARATION OF POWERS
The law-abiding citizens are outraged over developments within the ‘Criminal Justice System,’ and the inequitable dispensation of justice. In spite of the principle of ‘Separation of Powers,’ these may be no reasons for regional leaders to be seen as oblivious to certain adjudicating trends that could now be seen to be breeding contempt for the Judiciary. If by chance, any leader had been unaware, he/she may now know that there are ‘practices and trends’ that have made ‘…Trial by Jury’ seemed obsolete, while ‘Guilty Pleas’ and ‘Pleas in Mitigation’ have become the new jurisprudential practice. Given these developments, few among the citizenry would acknowledge that the ‘…law and workings of the judicial institutions’ see the law as ‘Symbolizes the public conscience.’
PLEASURES OF THE FLESH
It is to the knowledge that irrespective of ‘social or criminal consequences,’ it is man’s nature to seek ‘pleasures of the flesh.’ Some have sought and members of the fairer-sex primarily to satisfy their sexual fantasies and desires. Some have done so by making discrete arrangements, while others were known to have pursued it with ‘reckless abandon.’ Added to the discomfiture of the citizenry, have been ‘Sentences’ imposed upon ‘Self-convicted felons’ that begs for appellate intervention. Adjudicators know that when ‘Public Prosecutors’ are given reasons to feel that sentences void of reasonableness or showed no conformity with existing law, they are give good reasons to cause their ‘reasoning and professional judgement’ to be visited by the ‘Appellate Court.’
Framers of the ‘Constitution’ anticipated that ‘things’ would happen. They also knew that citizens would be displeased when State institutions or machinery for social control and/or the administration and timely and equitable dispensation of justice, be it ‘social or criminal.’ They also knew that ‘Court Decisions’ that beg for rationality or sensitivity or starved for justification may provoke the ire of the citizenry. It may have been among these reasons that the ‘Constitution was prefaced by those ‘Founding Principles.’
Parliamentarians, without a shadow of doubt, anticipated that some female minors might exhibit behavior that; (a) …Begs for parental control; (b) …Begs for spiritual and societal guidance; and most importantly, (c) …Begs for protection of law.’ They also knew that some living at the edge of poverty would be lured into acts associated with lewdness. As such, they would be at risk to the unscrupulous and/or deceptive ‘sex predators, willing to invade their dignity. Thus, some would opportunistically induce them to engage in illicit sexual acts. These, as society knows, always have the potential to cause ‘…unimaginable harm, pain and misery.’
LOVE COMPASSION LENIENCY
Sex-offenders appearing before the ‘Criminal Assizes’ with a ‘Guilty Plea’ and encounter adjudicators as ‘culturally polite, affable, gracious and as merciful as ‘His Lordship Justice Iain Morley,’ such accused persons are most likely to find such a virtuous adjudicator with a heart filled with ‘Love, Compassion and Leniency.’ To understand these sentiments, is to have an understanding and an appreciation of the contents of the ‘Sexual offences Act’ [SOA: No. 9 of 1995]. When ‘self-convicted ‘Child Rapist’ Theodore Horsford 21,’ appeared before ‘His Lordship Justice Iain Morley,’ he knew that he was not going to be tried by a ‘Jury of his peers.’
TIME SERVED – GUILTY PLEAS
The accused, reportedly, guided by ‘professional legal advice,’ saw the prospect of being favored with a light sentence. This would have been contingent upon considerations to the recently adopted ‘Sentencing Guidelines.’ Compounded by this would have been the computation and consideration of ‘Time Served.’ This is a misnomer and accused-favored for ‘Guilty Pleas.’ These are further supported by ‘Pleas in Mitigation,’ in which the nicest of compliments are persuasively expressed. Likened to other convicted felons, ‘sex-offenders’ could easily cause ‘Jury Trial’ to be opportunistically aborted, thereby leaving his fate in the hands of adjudicators.
FACTS OF CASE
Without such trial, victims of crime are often suspicious of the sentences that fell woefully short of their expectations, or failed to reflect society’s revulsion to certain criminal acts. Though not necessarily on par, intellectually, for the purposes of a criminal trial, the composition of the members of the Jury, considered them his peers. He knew that as a mere judicial formality, only the ‘Facts of the Case’ would have been given by a Crown Prosecutor. Having pleaded guilty to the sex-related indictment, to all intents and purposes, His Lordship, in lenient mood, placed the ‘…self- convicted Child Rapist’ on ‘Two years probation’ [June 23, 2020]. In a ‘closed Court setting,’ the only thing that did not occur on that day is that ‘Hell did not break loose.’ And which ‘sex-offender or child rapist’ may not have been exceedingly happy, escaping a ‘Life Sentence’ for the crime, ‘…Unlawfully having sexual intercourse with a twelve year-old female minor?
Even as law abiding citizens may have been sent into revulsion, when ‘His Lordship’ misguidedly imposed a ‘Fine of EC$1,000’ for the dastardly criminal act, not only that law enforcement, public prosecutors and law-abiding citizens expressed abhorrence, but may also have been convinced that the adjudicator, had been running riot with ‘Judicial Recklessness.’ [July 23, 2020]. Many citizens may have been convinced that the ‘Criminal Justice System’ had not only failed the victim, but also plunged it into turpitude,’ while bringing the ‘Judiciary’ into disrepute. It was obvious that his Lordship had factored everything into his discretion, be it; (a) …Mitigating; and (b) …Aggravating.’ From professional experience, the learned Justice may have seen more that may have been mitigating, than that which may have been aggravating.
In the instant case, the law states; ‘…Where a male person has sexual intercourse with a female person who is under the age of fourteen years, he is guilty of an offence whether or not the female person consented to the intercourse.’ In such circumstances, and irrespective of ‘consent,’ the law precludes such female from doing so.’ Thus, a male person so engaged in such activity would have been liable to be prosecuted. Anticipating that male perpetrators may come up with a defence of knowledge and belief of the age of the victim, the law provides further peril. It states; ‘…Whether or not at the time of the intercourse, he believed her to be fourteen years of age or more, he is liable on conviction to imprisonment for life’ [SOA: Section 5].
The law was made sufficiently clear that ‘pleasure seeking sexual predators,’ run the risk of being incarcerated in the ‘lone penal institution for life.’ Even as legislators were mindful of the vulnerability and susceptibility of minors to the depraved influences of ‘adult sex- predators,’ the stringency of the protective provisions contained in the ‘Sexual Offences Act,’ and the attitude of some adjudicators, it shows scant regard to the ‘Mischief Aimed by Parliament.’ The legislators were not only mindful of the resultant social consequences, but also the impact on the lives of victims. More specifically, they were mindful of the risks of; (i) ‘…Unwanted teen-pregnancy; (ii) …Possibility of contracting sexually transmitted diseases; (iii) …Teen truancy; and (iv) …Disruption of their education.’ Then there were issues of the psychological and mental health of female minors.’
More troubling will have been the deleterious effect ‘some ‘Non-Punitive Sentences’ have on the minds of the criminally victimized and the citizenry, as to inject and/or harbor fears, since such sentences had failed to meet the citizen’s expectations or had the desired effects on convicted criminals. These are not only destructive to the ‘Criminal Justice System,’ but also the social fabric of society, with serious implications for the ‘Rule of Law.’ Pertinent to these discussions, one only needs to review the founding constitutional principle that states; (i) ‘…Whereas the people of Antigua and Barbuda recognize that the law symbolizes the public conscience; (ii) …That every citizen owes to it and undivided allegiance not to be limited by any private views of justice or expediency; and (iii) …The State is subject to the law’ [CO: 1981: Principle D].
It shall not be said that it was not for want of understanding that some administrators of justice have fallen short of public expectations. It may have been for this very reason that some legal luminaries have privately expressed dissent over two particular sentences that have done nothing but to outrage the public conscience. There is no doubt that the ‘Sentencing Guidelines’ rolled out by the ‘Eastern Caribbean Supreme Court (ECSC),’ have caused anguish in victims of crime, and by extension, the general population. Adjudicators who failed to appreciate the ‘Mischief aimed by Parliament’ may need to be more informed of the law.
AUTHORS OF THE GUIDELINES
Ironically, authors of the ‘ Sentencing Guidelines’ are; (i) …Chief Justice, Her Ladyship, Dame Janice Pereira; (ii) …Appellate Justice, Her Ladyship, Justice Gertel Thom; and (iii) …Sitting Judge, Justice Iain Morley.’ The Chief Justice had made it sufficiently clear that the ‘Guidelines’ were not intended to strip adjudicators of their ‘inherent discretionary powers.’ What might be seen as instructive is that the ‘Guidelines’ are designed for administrative application. In judicial language, they are ‘Practice Directions,’ to ‘Judges and Magistrates’ at a lower level in the Judiciary. Interestingly, when the ‘Guidelines’ were rolled out, the authors in their collective wisdom states; ‘The ‘Rule of Law’ can only be maintained and strengthened by ensuring public confidence in the transparency and consistency of judicial approach’ [ECSC Website].
RULE OF LAW
Given the sentences imposed upon the ‘Child Rapist,’ it may have been for any number of reasons, most notably; (a) …Perverse Justice; and (b) …Implications for public confidence in the Judiciary,’ that the citizenry took umbrage with the leniency extended by His Lordship. From the perspective of law enforcers, the sentences may have serious implications for the ‘Rule of Law.’ Sentences like these often placed ‘Directors of Public Prosecutions (DPP) to take and show their dissent over the way adjudicators administrate and dispense justice. While none may suggest his personal displeasure, he had been jolted into a position to cause the ‘Eastern Caribbean Supreme Court (ECSC)’ to visit two sentences that appeared pregnant with leniency. While none may envy ‘Director of Public Prosecutions,’ Anthony Armstrong, consequent upon citizen’s disquiet, his prosecutorial functions as well public interest, demands that he vigorously pursue certain courses of action.
VIBRANT AND VOCAL
There are those with insatiable appetite for sexual pleasures and/or gratification.’ Organizationally, a concerned group comprised of female professionals, including attorney-at-law ‘Samantha Marshall and Nurse Alexandrina Wong.’ They have grouped themselves in heightening public awareness to the growing social problem of rape and incest within the society. Even as there is a ‘Gender Affairs’ department within the ‘Ministry of Social Transformation,’ as well as a women’s group called ‘Women Against Rape (WAR).’ The group, once ‘Vibrant and Vocal,’ had been seen as a ‘Beacon of Hope’ for victims and potential victims. Even with its advocacy for the protection of women and girls, the magnitude of the problem appeared to have been far beyond its resources and capacity. Sexual predators, steep in exploitation of the innocence and vulnerability of ‘Child Rapists’ and sexual predators, other known social activists that have been playing an advocacy role, seemed starved of official support.
In recent times, however, the group appeared to have lost its vibrancy and candidness in speaking out on the plight and ‘Ravishing Difficulties’ being experienced by ‘women and girls and children of tender years.’ The attorney, now holds a ‘ministerial position in Government,’ and appears far removed from the responsibility of ‘Gender Affairs.’ Aware of the growing incidence of ‘rape and child molestation,’ founding member ‘Attorney-at-law Samantha Marshall’ had shown keen interest in seeking to arrest the situation. Today, seemingly constrained by time, the organization appeared to have fallen into dormancy. Though a time constraint of some validity, there are those that have expressed the view that she might still be heard when victims suffered the indignity and trauma caused by rapists and/or predators on the hunt for victims.
When ‘Women Against Rape (WAR) emerged on the scene , the very acronym suggests that ‘war’ would be declared upon ‘Adults Rapists and Child Predators.’ This would have included offenders engaging in incestuous sexual acts, whether or not committed upon minors or adult females within the household. Such organization, no doubt, may have given ‘…Hope to victims;’ (a) …Adult females; (b) …Teens; (c) …Pre-teens; …Children of tender years; and (d) …The mentally abnormal person.’ It is evident from provisions contained in the ‘Sexual Offences Act,’ that policy-makers had caused such provisions that offer protection to the vulnerable and at-risk female persons’ [No 9 of 1995]. Thus, it was for such reasons the legislation was approved, with a penalty of ‘Imprisonment for Life’ [Sections: 3: 4 &5]. Yet, it may have been for reasons of ‘…judicial ideology and non-application’ of the provisions of the law that the citizenry had let their dissenting voices heard and the apparent insensitive and callous and reckless way, the issues of ‘rape and child molestation’ are ‘judicially adjudicated,’ and the clearly unreasonable sentences being imposed upon sexual predators.