A Judgment For All Victims of Gender-Based Violence

Introduction

The landmark Trinidad & Tobago case of Tot Lampkin vs. Attorney General CV2021-03178 tells a story that is all too familiar – the tragic murder of a young woman, Samantha, at the hands of her romantic partner. Over the course of 4 years, Samantha endured and courageously reported to the police episodes of persistent verbal abuse, physical assaults, death threats, stalking, harassment, and non-consensual distribution of intimate photographs by her partner. She also applied for a protection order from the Magistrates’ Court. Regrettably, her killer was neither arrested nor charged with the criminal offences he committed, and Samantha’s application for an interim protection order was not granted as the Magistrate apparently suspected that “Samantha’s approach to the Court was not a bona fide intent to secure a Protection Order but instead it was to assist her in obtaining maintenance.”

On 17 December 2017, Samantha was murdered by her former partner. Her devastated mother brought an action seeking redress from the State, raising the controversial issue of whether the State has an enforceable obligation to investigate and provide protection against gender-based violence.

Issues to be determined

The Court was asked to determine whether: –

the fundamental rights to life, the protection of the law, and respect for private and family life, enshrined in Section 4 (a), (b) and (c) of the Constitution of the Republic of Trinidad & Tobago, imposes a positive obligation on the State to ensure the protection of an individual from violence perpetrated by a non-State actor (i.e. a partner/ former partner).
If the answer to 1. above is affirmative, then the questions that must be answered are, whether the State’s failure to exercise due diligence and to provide Samantha with adequate and/or effective protection from her partner’s violent, criminal conduct:-
infringed her right to life and the right not to be deprived thereof except by due process of law as guaranteed by section 4(a) of the Constitution;
infringed her right to the protection of the law as guaranteed by section 4(b) of the Constitution; and/or
infringed the rights of her surviving mother and son to respect for their private and family life as guaranteed by section 4(c) of the Constitution.

Interpretation of the Constitution

The Constitution is a living instrument capable of adaptation and growth, and requires a more nuanced approach to interpretation, suitable to its unique character rather than the ordinary rules and presumptions of statutory interpretation. Accordingly, in the Court’s application of its provisions, it must adopt “a generous interpretation, avoiding what has been called ‘the austerity of tabulated legalism’ suitable to give individuals the full measure of the fundamental rights and freedoms”.

The most comprehensive guidance on how this exercise is to be conducted is found in the judgment of Lord Bingham in Reyes v The Queen [2002] 2 AC 235 in a passage which bears repetition in full (at para 26):

“…As in the case of any other instrument, the court must begin its task of constitutional interpretation by carefully considering the language used in the Constitution. But it does not treat the language of the Constitution as if it were found in a will or a deed or a charterparty. A generous and purposive interpretation is to be given to constitutional provisions protecting human rights. The court has no licence to read its own predilections and moral values into the Constitution, but it is required to consider the substance of the fundamental right at issue and ensure contemporary protection of that right in the light of evolving standards of decency that mark the progress of a maturing society. In carrying out its task of constitutional Interpretation the court is not concerned to evaluate and give effect to public opinion.”

The Judge’s Findings

The Honourable Mr. Justice R. Mohammed held (among other things) that: –

The police failed to exercise due diligence to take any measures to prevent violations of the victim’s right to life or reduce her risk of death.
The Magistrate who heard the victim’s application for a protection order demonstrated a “lack of sensitivity to the nuanced complexities inherent in cases of domestic violence.”
These systemic failures violated the constitutional rights of the victim, namely, her rights to life, equality before the law, and (the protection of the law.
The rights of Samantha’s child and mother to respect for family life were also infringed.
The State had a positive obligation to act with due diligence to protect an individual’s enjoyment of their fundamental rights from being violated by the actions of a non-State actor, such as a partner or former partner.
In response to the arguments that this duty would be burdensome on the State, the Court reiterated that in the context of domestic violence, this positive duty is triggered when there is “an immediate and real risk to life and where the State authorities, such as police and the courts as in this case, were aware or ought to have been aware of the risk but did not do all that could be reasonably expected of them to avoid the real and immediate risk to life”.

The Court relied on international conventions and instruments to underscore the State’s obligation to protect domestic violence victims. Such instruments included: –

The General Recommendation No. 19, the Committee on the Elimination of Discrimination against Women (“CEDAW”);

Article 4(c) of the UN General Assembly Declaration on the Elimination of Violence against Women, 1994; and
Article 7 of the Organisation of American States Convention on the Prevention of Violence against Women, 1993 (“Convention of Belém Do Pará”).
Decisions of the Inter American Court of Human Rights, the European Court of Justice, the UK Supreme Court, the Eastern Caribbean Supreme Court, and the Caribbean Court of Justice were also relied on, as they referred to this positive duty on States to display due diligence in the prevention of violence against women.

Conclusion

This decision aligns with global trends regarding the application of international standards to address domestic violence and gender-based violence.

The Ruling represents a significant step forward in preventing and responding effectively to domestic violence. It integrates international conventions into domestic jurisprudence even in the absence of full legislative incorporation, signals the judiciary’s recognition of domestic violence as a pressing human rights issue requiring a multifaceted approach including stronger protective measures and law enforcement accountability, and provides clear pathways to redress for victims of gender-based violence.

AUTHOR

Kimberleigh Peterson-Turnquest

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