This injunction sets such a dangerous precedent

Sep 30, 2014 Letters

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DEAR EDITOR,
The struggle for women’s and children’s rights began in the late 1940s in the then British Guiana. First amongst these rights was the right to have a voice, to be able to participate equally in the right to vote, regardless of gender and whether one owned property or not. This was achieved in 1952.
It was not until the late 1980s after years of calling for the end to sexual and domestic violence that several women’s organizations – the Women’s Progressive Organization, the Guyana Association of Women Lawyers and the Red Thread came together calling for the revisions of the antiquated sexual offences statutes and the introduction of statutes criminalizing domestic violence.
The legacy of the ninth Parliament, particularly 2009-2011, is the enactment of a compendium of five progressive laws to protect and promote children’s rights and protect victims of sexual violence in the new Sexual Offences Act. The latter statute was gender neutral, thereby giving for the first time, protection to males in general, and male children in particular, in cases of sexual offences.
These statutes came to fruition after long and consistent consultations stretching over years, involvement of grass roots organizations and communities, inputs from non–governmental organizations, and several parliamentary special select committees which received submissions and revised the original bills to incorporate expert advice and further strengthened the objective of protecting victims of sexual violence and protecting children, in particular.
The overriding understanding by all, was and still is, that children are powerless as victims of child abuse and sexual violence, and therefore the responsibility of all citizens and the executive, legislature and judiciary must be the “best interests of the child” in accordance with the constitution.
After these long and hard fought for gains, it is therefore with utter disbelief and alarm that l read that an injunction has been issued against a young man who alleges that when he was a child, he was sexually abused by an attorney–at–law who is also the Speaker of the National Assembly and a known politician in Guyana. I also note with even more alarm that the rights groups, or those who have held themselves out to be rights groups, have been deafeningly silent on the issuance of the injunction.

THE INJUNCTION
No allegation of sexual abuse, whether made by a male or female, and whether current or going back to their childhood, should be muzzled. One expects that the accusation will be subjected to the scrutiny of the justice system where the accuser and accused will be heard and a judgment made by a jury.
A young man has made an allegation of sexual abuse claiming that this was done when he was a child. His complaint should always be taken seriously and be heard and our facilities, institutions, services and environment must always be ones that promote and facilitate such a complaint being made.
This should never be an occasion or an opportunity to gag the accuser.
From reading the injunction it seems as though it was granted because there was a claim that the complainant was depressed and suffering from other mental health problems and because the accused, the politician, claims that the accusation was politically motivated. The accused claimed that it was causing him to lose his reputation and be embarrassed.
A complaint of sexual abuse by a child or an adult against another will always cause that other to lose his/her reputation, assuming there was one to lose. It will always be something embarrassing. It will always be harmful to the accused. It is after all a criminal offence to rape or sexually assault someone. In no other accusation of a criminal offence is the issue of the reputation of the accused put under the microscope.
Additionally, according to worldwide research, almost every person who is raped or abused will suffer some form of depression and other mental health issues.
The claim by the accused that it is a political set up is easily something that can be determined by the police and/or a jury. It would be a matter of fact that should not, according to our laws, be determined by a judge alone.
This injunction sets such a dangerous precedent. It opens a door where any and every person who is accused of rape can go to the court, claim that his/her reputation is being damaged, that the person making the allegations is sick, and that it was a plot or ploy by another person/persons and secure an injunction against the person who is making the claim!
Considering the abysmal state of our rate of prosecutions and convictions in sexual offences cases as exposed by the Guyana Human Rights Association and the Attorney General and Minister of Legal Affairs, we can ill afford as a country to have any more obstacles placed in the way of securing justice for our victims of rape and sex assault, where the victims are predominantly women and children.
A court ought to be aware of these dimensions of rape and sexual assault and the research on these issues should be what informs the court’s decision. Anything less would be to shortchange the people of Guyana.
In a long and countrywide campaign to “stamp out sexual violence” in 2007-2008 (prior to the enactment of the new Sexual Offences Act), the people of Guyana spoke on the issues that were affecting them relating to the reporting, investigation and prosecution of sexual offences.
They detailed how they thought men with power and/or money got away with rape and other sex crimes, they complained against the sloth of the system, they expressed frustration at the then laws being impractical in securing a conviction, particularly where children were the complainants.
The lawmakers listened, heard and drafted laws that saw Guyana passing revolutionary and new legislation to cater for those weaknesses in our system, including making provisions modern and real, such as removing the need for corroboration of a complainant’s account, allowing for special measures that remove the aura of heavy formality in the courtroom, allowing a witness to be shielded from an accused, etc.
This injunction now negates the work of the women’s rights movement over the last thirty years and the work of the Ninth Parliament which drafted the laws and more importantly the thousands of Guyanese who contributed to that process. All the work that has been expended to foster an environment to encourage victims of sexual violence to trust the system (police, social workers, prosecutors, and judges) and report these cases has been severely eroded.
This injunction sends a dangerous but clear message that accused persons can use their money and might to go to court and secure an injunction against a complainant from talking about or “publishing” the ordeal that the victim suffered. It places more burdens on an already traumatised and very confused, depressed person whose very dignity and sense of safety was snatched from them by the very person being protected by the court.
A victim could now legitimately form the impression that  a politician can rape and get away with it and that it makes little sense complaining as that person will use his/her power and money to get an injunction.
A victim can now easily decide not to complain against a lawyer for rape, because the accused will go to the court where they will reign amongst their friends and make the victim into the bad person and use the heavy hand of justice to gag them. Regrettably, the injunction validates once again public opinion of the judicial system. And can one blame people for that viewpoint??
After all, the case against CN Sharma, another politician, on charges of pedophilia is still not concluded after five years, and, now the accusation against another politician, the Speaker of the National Assembly. Can one blame onlookers coming to the conclusion that wealthier persons are more likely to have easier access to the court?
The injunction reverses the even-handed role and function of the court where victims expect to be protected and expect to get justice, to one of facilitating the accused. Justice no longer appears to be blind and even-handed.
This is why this injunction is so terribly dangerous; it has undermined the entire tenets of justice for victims of sexual violence. This terrible precedent victimises the accuser all over again. In my opinion, this injunction should never have been granted.
I am not judging whether the accused Trotman is guilty or not, that, l believe, is for the court and a jury, if it ever reaches there.
The point is that an injunction can now be issued against every single complainant from making or “publishing” such complaints to the police, a social worker, a family member, the church, etc. Surely this must cause profound concern for human rights and democracy in our nation.

RIGHTS GROUPS
This is why the deafening silence in response to this unprecedented injunction of the rights groups who have been known to comment and champion the cause of victims and children of rape and sexual assault deeply worries me. That, if nothing else, should have been noisily protested against. Nobody is asking rights groups at this point to determine the vexed issues as to whether the accused is innocent or guilty. That is not the point.
In the same way that these groups were justifiably adamant that the order should not have been made by the High Court in the Commissioner of Police Henry Greene  matter (he too was innocent until proven guilty ), so too, one would expect that they would now be out in full force condemning the grant of this injunction.
Recall Henry Greene had gone to the court to secure an order stopping the Director of Public Prosecutions from charging him, because he said the evidence was weak. The complaint at the time by many, including a Minister of the Cabinet, was that the order was setting a terrible precedent in that every person could so claim and a judge (without a jury) could decide on facts … which is usually supposed to be done by a jury…and that a judge could determine the matter.
The same applies here. Every person accused of rape/sexual assault can now go to a court and claim that their reputation is being damaged or that they are being set up (which incidentally is an overwhelming claim by accused persons) or that the complainant is sick (which incidentally, the complainant is likely to be if the complainant was forced to suffer the indignity and crime of being abused sexually) and on those grounds, the accused could now obtain an injunction preventing the victim from speaking out.
That the rights groups are silent in the face of this horrific development is very, very sad and worrying.
Surely their silence on this matter —unlike others—— cannot be based on who the accused is??!! If that is so, then this is a terrible indictment of our times.
In retrospect, l cannot remember any call for CN Sharma to submit to justice from some of these same groups when he was charged with rape of a little girl, and would check himself into hospital etc., causing then and even now untold delays in the hearing of the case.
So maybe the rights groups have their little affinities too? One has to wonder if they would have been so silent if it was a government or a “PPP-affiliated” person being accused or charged with rape and sexual assault?
It cannot go without notice that Nigel Hughes, leader of the AFC and recently proposed prime ministerial candidate, is the lawyer for the accused.

PLOTS AND CONSTITUTIONAL CRISIS
Expectedly the AFC has jumped to defend its founding leader; however, their defence appears to be one of “smoke and mirrors”.
The first thing they did was to counter the accusation of the young man by saying that it is politically motivated! Nothing substantial, but unmistakably a diversionary tactic! And to keep the illusion going they have tossed several PPP/C names into the fray from the Attorney General and mine to a young female lawyer.
More recent is the AFC’s announcement that this is all part of a plot to make the Speaker resign and create a constitutional crisis. This is utter poppycock!
Their objective is to create fear and confusion and intimidate the general population, especially investors and the business community…again another diversion!
To set the record straight, were a Speaker of the National Assembly to resign for whatever reasons, there is a Deputy Speaker who can act as Speaker until the Assembly votes for a new Speaker. The new Speaker can be nominated and elected from among the sitting Members of Parliament or from someone who would have been eligible to be a Member of Parliament as provided for in the Constitution, as was the case with former Speakers Derek Jagan and Ralph Ramkarran, and, present Speaker Raphael Trotman. When Speaker Derek Jagan died, the Deputy Speaker Mr. Martin Zephyr became the Speaker by election and a new Deputy Speaker from the PNC was also elected.
Has the AFC forgotten that APNU MP Basil Williams holds the Deputy Speakership?
There is no constitutional crisis in the making. Rather it appears that the AFC is afraid that were Trotman to resign ——as he has publicly said recently that he would if charged — then the AFC would lose control of the Speakership of the National Assembly.
All MPs know that many APNU MPs have been unhappy with giving this critical position to the smallest party in the National Assembly. The crisis would not be constitutional; rather, it would be one of a power struggle within the opposition forces for the speakership.  A struggle the AFC would most likely lose.
The crux of this matter is that a very serious accusation of a sexual offence of a minor has been made against the fourth highest ranking person in the hierarchy of Guyana. The AFC cannot wish this away and miniaturize the accusation by deflection and illusions of smoke and mirrors!
How Guyanese society treats with this issue will depend on how fair and even-handed the scale of justice is for the accuser and the accused. At this stage, the scale seems tilted in favour of the accused!
Gail Teixeira, M.P.,
Chief Whip

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