By Roberta Clarke
On December 17th, 2017, Samantha Isaac was murdered by her former partner in Trinidad and Tobago, taken away from her three-year-old son. Her mother, Tot Lampkin, was devastated and outraged. She considered that Samatha had been betrayed, failed by state authorities who should have protected her. This outrage was harnessed and motivated her to seek justice for this personal tragedy and the egregious public wrong.
It is a story too familiar across the Caribbean. Samantha, with courage to break the silence, reported domestic violence to the police on several occasions and she sought a protection order. Samantha had been verbally abused persistently; was physically assaulted, her life threatened with a knife to her neck in front of her child; was stalked at her workplace; had her belongings trashed; was continuously harassed by telephone; and her intimate photographs were circulated without her consent.
In the face of these reported assaults and threats of murder, her killer was never arrested nor charged with the criminal offences that he had committed. The magistrate, who denied an interim protection order, did not take Samatha seriously when she described what she was experiencing. Eventually, Samatha’s application for a protection order was dismissed.
Unfortunately, so much domestic violence, the most prevalent of violent crimes, is characterised by this impunity, by this lack of justice. People who perpetrate domestic violence, mainly men, face no legal consequences. They are not held accountable for the injurious consequences of their violence. This impunity is the norm despite all the work of women’s organisations in Trinidad and Tobago and elsewhere across the Caribbean over the last forty years to advocate for dedicated domestic violence laws, for police training, for timely hearings of protection orders and for calls for coordinated and effective state action to protect women and children.
Most of the legislation addressing domestic violence in the Caribbean promise a speedy hearing and determination of action. They set out police duties. These duties may include the duty to record reports and the actions taken linked to the complaints and the duty to assist victims. Police have powers to seize firearms and to arrest. The Courts also have expansive powers to issue a range of protection orders as appropriate to the circumstances and risks. Yet the legal system is bedevilled by delay. And too many police, despite training, continue to under-estimate the risks of harm.
The case brought by Tot Lampkin answers the question: what is the liability of the state when there are failures of implementation of the law and harm is caused?
We now have some answers from the landmark judgment in Tot Lampkin v the AG of Trinidad and Tobago (2024), delivered by Justice Robin Mohammed.
As a matter of fact, the Judge found that the Trinidad and Tobago Police Service failed to exercise due diligence to take any measures to prevent violations of Samantha’s right to life or reduce her risk of death.
Whether or not the domestic violence legislation explicitly sets out a duty of the police to investigate domestic violence, this case confirms that the duty to investigate domestic violence is included under the normal police powers to arrest, charge and prosecute any person who is found committing or is reasonably suspected to have committed an arrestable offence.
The judgment acknowledges that many domestic violence crimes are unreported because of fears of retaliation. And so, when victims “do summon the courage to report, they expect, at the very least, acknowledgment, response, and thorough investigation of their complaints.”
In words that echo the long-standing utter frustration of gender equality advocates, Justice Mohammed lamented:
“Almost everyone by now, in this jurisdiction, knows and understands this cycle of domestic violence because it is so prevalent in this country and in the wider Caribbean. Why then, does the police not know that every report or complaint of domestic violence must be taken very seriously and investigated thoroughly?”
The judge also found that the Magistrate demonstrated a “lack of sensitivity to the nuanced complexities inherent in cases of domestic violence.” The application for an interim protection order was not granted. This, the judge found, was the result of the magistrate’s suspicion 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.”
The judge, while not commenting on the legitimacy of fast-tracking maintenance applications in the context of domestic violence, thought that this scepticism was evidence of the failure to consider whether ‘restraint on financial support’ was among the ‘abusive tools’ used by the perpetrator to control Samantha.
In addition to the impact of the violence on Samatha, the judge also reflected on the failure to conduct a risk assessment to determine the impact of Samantha’s complaints of threats and physical abuse on her child. The magistrate therefore acted arbitrarily and irrationally in not providing a prompt remedy despite numerous complaints of death threats that Samantha brought to the Magistrate’s attention.
These systemic failures violated the constitutional rights of Samatha Issac – her right to life, her right to equality before the law and the protection of the law. Also, the Court found that the rights of Samantha’s child and mother to respect for family life were also infringed.
This judgment is the authority for the proposition that the state has positive obligations 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 reminded 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”.
It is a judgment that should be mandatory reading for all police officers and magistrates. Repeatedly, those who work in this area are calling on the consistent monitoring of the implementation of domestic violence acts. So much energy has gone into the reform of these laws. Yet too many women are frustrated and live in fear, feeling disregarded, even disrespected by a legal system that should provide relief.
There can be no doubt that these deficits are in part informed by gender stereotypes that express persistent gender inequality. Whose lives matter? Who should be believed? What are the duties to act impartially and effectively to protect the health and lives of women?
We are increasingly getting the answers from Caribbean courts addressing these issues through the prism of human rights. In a CCJ case from Barbados, OO v BK (2023), the Court reminded judicial officers that they should not allow their gaze to stray away from the “legitimate concern over the safety, dignity and human rights of the complainant; away from deterring violent conduct.” The Court process should not re-traumatize through judicial insensitivity and unconscionable delays.
Ending gender-based violence against women and girls and the impunity that characterises that violence requires not only state action. All of us have the moral obligation to reject tolerance and indifference for this harm that not only constrains the lives of those experiencing it, but also contributes to the deterioration of empathy, kindness and peace in society.
This reflection was captured in another case from Trinidad and Tobago – The State v Lorette Charles (2023), where the Judge reminded that intimate partner violence is preventable with better coordination of the social services and as well with the actions of bystanders such as neighbours who at the very least can alert police to family violence.
These legal developments in the Caribbean are consistent with the interpretation of state obligations outlined in the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, (known as the Convention of Belém do Pará Convention), a Convention that has been signed by all Caribbean states. Violence against women and girls is an expression of discrimination, as is what amounts to condoning of such violence through ineffective judicial action.
In the merit report of Maria de Penha v Brazil (2001), the Inter-American Commission on Human Rights expressed the view that general and discriminatory judicial ineffectiveness creates a climate that is conducive to domestic violence, “since society sees no evidence of willingness by the State, as the representative of the society, to take effective action to sanction such acts.”
We have all the guidance that we need on how to prevent and respond effectively to domestic violence. And through the courage of Tot Lambkin and determination of her lawyers, those whose demands for state protection are ignored now also have clear pathways for redress.
