This month, the High Court of Barbados ruled that the outdated “wandering” legislation in Barbados, long-used as a way to house and punish youth in juvenile detention, is both unconstitutional and discriminatory. The judgment comes after decades of advocacy and failed political promises that the law would be taken off the books – and represents a long-overdue step forward for the protection of youth in the country.
ICAAD supported survivor-led civil society organization Operation Safe Space and the attorney on the case by providing international human rights law and comparative law research with the assistance of pro bono counsel at Clifford Chance LLP.
About the Case
The case brought to the Court centred around two teenage claimants who were housed in the Government Industrial School (GIS) – a state institution for children in need of care or in conflict with the law, which operates as a detention centre. Both girls were detained at the GIS on charges of “wandering”, which can include running away from home or vagrancy, and is treated as a criminal act.
In 2022, the girls, working with OSS, filed an application through their attorney alleging that their fundamental rights and freedoms were violated while at the GIS.
As part of his judgment, the Judge ruled that section 14 of the Reformatory and Industrial Schools Act, which deals with wandering, was “unconstitutionally vague and offends the rule of law”, as well as “discriminatory on the grounds of age and sex and violates the right to protection of the law”. Combined, the claimants were awarded more than BBD $200,000 in damages.
What Comes Next
The acknowledgement of wandering as unconstitutional is a major step forward and long overdue It is now critical that it is met with legislative change.
A new Child Protection Bill is currently in Parliament and is expected to be debated shortly, which includes removing the wandering offence. Wandering currently falls under the category of status offences, which are charges that criminalise acts of minors that would otherwise not be unlawful, including running away from home, sex with another minor or truancy. More children in Barbados are charged with wandering than with drug possession, burglary, bodily harm, robbery or theft.
Wandering also disproportionately impacts young girls for not adhering to specific norms and behaviors. For example, girls are often charged with wandering for having underage sex with their boyfriends, while boys are not.
About the GIS
Along with removing archaic legislation, the GIS itself is in need of urgent reform due to its abhorrent conditions and total lack of accountability. Conditions at the GIS are poor, with children barely getting any education nor proper nutrition. Despite a recent panel of inquiry condemning the current state of affairs and recommending a “major overhaul” of the GIS, there has been little progress to improve the conditions.
The criminalisation of minors and poor juvenile detention facilities is not unique to Barbados. The origin of wandering legislation comes from colonial times, and similar patterns can be seen in Jamaica and other former colonies in the Caribbean.
This month, ICAAD’s Erin Thomas presented the results of the innovative family-tree mapping gender-based violence (GBV) study in Niue. This project comes from over 4 years of collaboration with key partners in Niue working to study and advocate against GBV. The research was the first of its kind in Niue and the first time the family-tree mapping methodology was used anywhere in the world.
GBV is a difficult topic to research for a variety of reasons. Many countries have conducted quantitative household surveys to get a better understanding of local dynamics and to support policy change and development. In Niue, an island country with a population of 1,600 people, this conventional approach presented a number of practical and ethical challenges. In partnership with the Department of Community Affairs, we developed a creative approach to uncover the information that would support institutional and policy change for victims/ survivors of GBV.
ICAAD’s 2017 Report, Assessing Gender-based Violence in Niue, pointed to the family being the primary space in which GBV is disclosed and dealt with. Supported by 27 informant interviews with 32 total participants, the family-tree mapping approach was piloted in 14 interviews with one older woman from each village. Each interview began with mapping the participant’s family tree within two generations and followed with questions about disclosure, accountability, education, and gossip in relation to GBV. Read more about the methodology as published in the Pacific Health Dialog.
The project has evolved to include the connection between GBV and the realities of the climate crisis. The climate crisis impacts GBV by adding contributing factors such as financial pressure on livelihoods and traumatic experiences with disasters. Working with the Makefu Village Women’s Council, we have been able to connect the dots and support local advocacy around climate and gender justice.
The family-tree mapping research was presented to key stakeholders in Niue in November, fuelling conversations around the draft Family Relationships Bill which will now include domestic violence provisions in line with international best practices. In addition to supporting policy change and awareness programming in Niue, this research piloted a methodology that can be used to uncover dynamics around GBV that are critical to policy change in other small, close-knit communities around the world.
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In Suva, Fiji, ICAAD’s Erin Thomas led a Continuing Legal Education (CLE) workshop with the Fiji Women’s Law Association (FWLA) going into depth on the data from the 913 Fiji cases from 2000 to 2021. Over 40 lawyers participated and learned about how to use the TrackGBV Dashboard. In 2021, ICAAD shared the preliminary data for Fiji on a panel at a prior CLE workshop with FWLA. This workshop offered more in-depth analysis and interactive activities to train lawyers on how to identify and analyze contentious factors in their own cases.
For lawyers, the Dashboard offers perspective on the legality of relying on arguments rooted in bias. While certain contentious factors are common, the workshop raised concerns about the legality of their application. The cohort worked through four case examples from 2019-2022 which brought up conversations about “Other Contentious Factors,” and the misapplication of first time offender status to reduce the sentences of perpetrators. In these recent cases, there were multiple examples of “Other Contentious Factors”, or what we describe in the TrackGBV methodology as factors that unjustly privilege the interests of the perpetrator over those of the victim/ survivor.
In the discussion, we explored the need for a system-wide approach to improving access to justice, so that judges do not accept contentious factors raised by defence attorneys, there is collection and use of medical evidence, and anonymity is protected for victims/ survivors. Participants identified ways in which the Dashboard can support their work as advocates for their clients as well as legal professionals in the broader system striving towards improved access to justice for women and girls.
Explore the latest data in the TrackGBV Dashboard here.
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ICAAD recently traveled to Jamaica and Barbados to build partnerships, hear from local, regional, and international stakeholders, and co-create programs seeking to combat gender-based violence (GBV) in the Caribbean region. Rates of GBV are high and heavily underreported, and systems are in dire need of resources and reform.
In over 30 meetings in two weeks, we learned of the immense challenges women and girls face in their journey to access justice, and the gaps that exist at every level. Some of the gaps identified rise from laws that are the vestiges of colonial British rule and have not been updated, while others stem from a lack of resources to combat GBV and from traditional mindsets rooted in patriarchy.
For example, healthcare providers do not regularly document signs of abuse, and are not required to do so unless dealing with children. Furthermore, there are few, if any, nurses or doctors properly trained in forensics dealing with sexual assault, which is a major gap in the prosecution of rape cases. Basic processes like seeking a protection order after facing domestic violence can also be incredibly challenging, with unnecessary barriers sometimes placed in the process by court clerks themselves.
Additionally, girls in Barbados and Jamaica, who are sometimes victims of abuse at home themselves and are trying to escape that abuse, are still being put into juvenile facilities for “wandering” or being “uncontrollable.” The facilities they are placed in have deplorable conditions, have standards of discipline and care that would violate international human rights norms while receiving inadequate education and nutrition.
In addition to other partnerships we are continuing to build, in Jamaica, we are partnering with both government and civil society in building capacity for the dissemination of newly passed sexual harassment legislation, working to build stronger data analytics around GBV, and assisting in ground breaking litigation challenging rulings that threaten women and girls when it comes to protective orders and arbitrary arrests.
In addition to women’s rights organizations, legal bar associations, and international bodies like UN Women, we met with members of the judiciary, police, departments of prosecution, and health ministries. Stay tuned for more updates as TrackGBV Caribbean gains momentum.
Over the last few months, we have been building on our completed virtual TrackGBV Train-the-Trainers intensive program with participants from the Ombudsman’s Office and Ministry of Justice in Samoa. The training featured the latest TrackGBV data from Samoa which can be explored in our recently launched TrackGBV Dashboard.
The case law analysis shows that in Samoa between 2014 and 2020, contentious factors like gender stereotypes, customary practices, or other contentious factors were used to reduce perpetrators’ sentences in 54.8% of GBV sentencing decisions.
Check out what one of our participants, the Director of Human Rights at Samoa’s Office of the Ombudsman/National Human Rights Institutions, Loukinikini Vili, had to say about TrackGBV and the Train-the-Trainers program:
"The training not only showed us information about the trends in sentencing decisions, but it definitely got us thinking about a lot of things. Some of them include, what was the judge thinking when they gave the decision or what type of information was provided to the judge that influenced their decision?”
“When we were analyzing some of Samoa’s gender-based violence sentencing decisions, we were also able to identify and discuss different gender biases and discrimination and how patriarchy and toxic masculinity in Samoa drive gender-based violence.”
Another participant, Faagutu Vaalotu, from the Ministry of Justice shared that, “this training has refreshed my thinking about ways to improve the way we work. I think there’s a lot of areas we need to look closely at.”
Vaalotu explained that TrackGBV fills some of the gaps they have from not having an integrated electronic case management system. She adds, “We have the challenge of not having an integrated electronic case management system. With the case analysis from TrackGBV, that really puts the alarming picture of what’s happening out there. That sort of approach is very effective in driving this message, especially if it’s the judiciary that’s handing down the decisions.”
We have been working with the cohort to plan this year’s advocacy strategy for judicial policy reform as well as more trainings for other stakeholders. Stay tuned for more updates as we continue sharing the TrackGBV Dashboard with stakeholders around the Pacific region.
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