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Plans> The Status of Women> Section 5 |
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The Status
of Women 3. AWARENESS OF, AND COMMITMENT TO, INTERNATIONALLY AND NATIONALLY RECOGNIZED WOMEN'S RIGHTS In spite of impressive pronouncements of the virtues of equality of the sexes, many developing countries and indeed some developed ones, still have in place legal mechanisms which foster inequality of the sexes. When one wonders at the logic behind these inconsistent positions, one comes up with the possible answer that the particular aspects of this inequality are not specifically known, though known generally; or that there is an indifferent attitude towards this problem. In either case, remedial action is not being fully taken ... for in the BVI there can be found in the legal system scattered pieces of legislation which, it is submitted, discriminate against the woman. (Legal] 1988:1). In his comprehensive overview of 'Women, Discrimination and the Law in the British Virgin Islands', Oswell Legall, a former Senior Crown Counsel in the Attorney General's Chambers argues that the BVI's adoption of the UN Convention on the Elimination of All Forms of Discrimination Against Women in 1986, obligated the Government to conform to the Convention by taking remedial legislative action and by seeking to eradicate all forms of discrimination against women in the society. Legall uses his familiarity with BVI, British and other laws to locate the de jure and de facto instances of discrimination against BVI women in the context of traditional common law practices. He notes that:
Historically, inequalities have been prevalent in areas of contract, property ownership, tort (wrongful acts), voting rights and residence among others. Up to the beginning of the twentieth century a married woman's inability to own property .or make a simple contract, or to sue was compounded by the fact that women in general, were not even considered . persons' when it came to voting, and even those women who possessed freehold interest were barred from voting or holding political office. Added to this, a woman lost all property rights on her marriage, as everything she owned became the exclusive property of her husband. The basic assumption was that a woman was not capable of being able to represent or maintain herself and was not seen as a person distinct from her husband. Progressive legislation has rectified some of the common law discriminations against women, and today, the remaining discriminatory laws in the BVI are being reviewed. This has come largely from Legall's exposure of these laws and the education and awareness building programmes initiated by the Women's Desk and other groups like the Family Support Network. In recent times in its drive to effect changes in the legislation, the Women's Desk has drawn public attention to Legall's work and initiated the establishment of a legal Reform Committee in December 1993. This Committee is currently reviewing all the legislation applicable to women with a view to their reform which should bring the laws into closer conformity with the Convention. (O'Neal 1994). It was recommended that the Committee use Legall's review as a base. This section of the report also draws heavily on Legall's work. Changes in the legislation have seen women's acquisition of voting rights and the right to be elected to Council, but most of the amendments and remaining discriminatory aspects centre around women's role within the family. The Married Women's Property Act (1897) This Act made some significant changes to the status of married women. She gained the right to own property independent of her husband, make contracts and be held liable for her own actions. While the woman came to be viewed as a separate person distinct, from her husband, the legacy of the 'non-person' status of the married woman still influences her position under the common law and in the society at large. The Matrimonial Causes Act Chapter 48 This Act stipulates that the grounds for divorce are adultery, desertion, cruelty and insanity.
Legall points out, however, that under common law there are specific provisions which allow the man and not the woman to have the marriage dissolved. The Matrimonial Causes Amendment Act (1986) This Act gives a BVI married woman the right to establish residence independent of her husband's residence. The Act stipulates that 'the married woman's domicile shall not be deemed to be the domicile of her husband and that she may independently change her domicile'. (Legall 1988:59). Until this amendment in 1986, a married woman was not legally allowed to take up residence independent of her husband. The Maintenance of the Household Based on a number of common law decisions which have been handed down by influential judges indicating that it is the wife's duty to manage the household and do the housework, Legall recommends that the 'law in the BVI should take the initiative and make it quite clear that housework is the responsibility of both parties to the marriage'. He notes that this could be done by making an appropriate amendment to the Marriage Act or the Matrimonial Causes Act. (1988:37). Regulation 6 of the Pensions Amendment Regulation (1962) This provides for the early retirement upon retirement of a female government officer after five or more years of service. This Regulation, Legall notes, makes the assumption that a female public servant would wish to retire to take care of the home on marriage and encourages the woman to leave the service on getting married. This possibility of early retirement of married females could negatively affect their chances for job training and career advancement. Conjugal Rights It should be noted that while women have been granted the right of domicile, BVI common law gives the husband the right to apply to the court for restitution of conjugal rights in cases where the wife is guilty of not cohabiting. The law grants no corresponding right to the wife. Further, the husband has the right to maintain an action for damages against any third person whose wrongful act deprives him of his 'wife's consortium'. According to Legall, research has not produced any corresponding right of consortium for the wife. (1988:32). The Maintenance of Spouses Section 114 of the Magistrates Code of Procedure Act Chapter 45 of the laws of the BVI states that:
While this Act seems to indicate no gender discrimination, Legall points out that because the Act does not state who is under a duty 'to provide reasonable maintenance', the common law definition of such a person will have to be taken. At common law, he notes, it is the husband who has such a duty and riot the wife. This is probably why it is automatically assumed that it is the husband who must pay maintenance to the wife, and it is only when the court is satisfied of his insufficiency that the woman is ordered to pay maintenance. Legall argues that the notion that the husband has the legal duty to maintain his wife is a handdown from the historic common law view that the woman was not physically or mentally capable of taking care of herself. He suggests that the BVI replace this legislation with legislation similar to the United Kingdom's which leaves no room for ambiguity. The Legitimacy Act, Chapter 234 This Act makes provisions for the legitimation of persons born outside of wedlock. It further stipulates, however, that such legitimation can occur only 'if the father of the illegitimate person was or is at the date of the marriage domiciled in the BVI' This subsection does not give the right of legitimation to the mother, and as Legall points out, even the father who may establish residence outside the BVI after marriage, or who may die, has this power, while his wife who may be alive and well in the BVI has no such right. It should be pointed out here that the law of inheritance with respect to children born out of wedlock, is one that should also be given consideration under any legal reforms. Granting equal status to illegitimate children would take into reality the fact that more than half of children born in any given year in the BVI and the Caribbean are born out of wedlock. The Guardianship of Infants Act, Chapter 233 This Act grants the mother equal rights with the father in applying for custody. The legislation stipulates that in these cases it is the 'the welfare of the infant' which is given "paramount consideration". On the death of the father, the mother will be declared guardian and similar provisions prevail if the mother dies, and either father or mother (before death) may appoint a person to be guardian by deed or will. This equality is dispensed with within Section 5 of the Wills Act as it relates to the disposition of the custody of an infant during the father's life time. Only the father is given the power to dispose by will, the custody of a child. (Legall 1988:59-60; also quoted in Roett et al 1992:51). Income Tax Act Section 22 There are other instances of discrimination against the married woman and among these is the requirement of the Income Tax Act Section 22, to have a married woman's income charged in the name of her husband instead of her own name. While there is provision for the wife to pay her proportion of taxes separately, there is no requirement that a married man's income be deemed to be his wife's income. (Legall 1988:60). Common law Unions or De Facto Relationships Like in many other Caribbean countries, common law unions are prevalent in the BVI, but they are not recognized by law. The woman in a common law union in the territory does not have any legal right to the property which may be in the man's name; this, despite the fact that both of them may have contributed to the development or accumulation of the property. In addition, persons in a common law union, living together, but not legally married, cannot jointly adopt a child, even where one of the persons is the natural parent of the child. Further, under the Intestates Estate Act (Chapter 40) a woman in a common law union is not entitled to a share in the property of her common law partner when that partner dies. Given that common law unions were part of the historical developments of post-Columbian BVI and other Caribbean nations, serious consideration should be given to these unions and the negative effect that the laws have on women's rights to property within the relationship. The legislation is also reflective of the tendency to belittle women's contributions to the family and also of the practice of ignoring women's unwaged work, the work carried out in the maintenance of the family. Women in common law unions, even more than women in legal unions, must be aware of the importance of having property registered in their names and in securing documents which can support their ownership claims in the event of separation or in the event that their partners die intestate. Citizenship and Immigration Rights The question of equality with regards to citizenship is perhaps the issue which has received the most public attention. The BVI is a British colonial territory and there is therefore no local Citizenship Act. As in the other British colonies, it is the British Nationality Act 1981 which stipulates who is entitled to citizenship in the BVI. This Act, which some claim is "an instrument whereby the UK has decided to use the BVI as an outlet for some of its people" (Legall 1988), treats women and men equally as far as achieving citizenship is concerned. The inequalities, Legall points out, arise in the local application of the legislation, for it is only after citizenship is conferred on the woman that she faces inequality in respect to immigration and Council membership matters. Section A and Section B (1) of this report have highlighted how the Section 2 (2) (e) discriminates against the woman who, having obtained belongership through marriage or certification and then marries or remarries a non-belonger, has her citizenship revoked and her status reverted to that of a non-belonger. These provisions do not apply to the man. Section 2 (2) (f) also discriminates against women in that the BVI man can confer belongership status to his foreign-born spouse, but the BVI woman does not have this same right. In addition, according to Section 2 (2) (h), as long as a woman remains the widow of a BVI man, she maintains her belongership status. The same does not apply for the widower of a BVI woman. legall argues that these sections which are reflective of the BNA of 1948, are discriminatory in that they make the man and not the woman, the operating vehicle for the conferment of belonger status. Some of the legal restrictions which these inequalities place on women have been noted in the preceding chapters, but 27 the fact is that they also restrict the woman's choice of mate as she may be forced to choose citizenship or marriage. With the launching of the education awareness programmes, these discriminatory sections have been the subject of much discussion in women's groups and other fora and they were also raised in the interviews and national consultations leading up to the writing of this report. They have also been part of the recommendations for change submitted to the Constitutional Review Commission. (E.g. Submission by CADA and The Tortola Ladies Club). Immigration Under section 18 (1) of the Immigration and Passports Act 1977 any person has the right to apply for a certificate of residence. Section 18 (2), however, allows the man to have his certificate endorsed to include his "wife and any dependent child". The same right is not extended to the woman who has obtained a certificate of residence. This discrimination seems to have been extended to other immigration policies, in that male work permit holders have less difficulty including their mates on their work permits, while it is discouraged for the female holder of a work permit. The preference given to the man is also evident in the Passport Application Form 13, which requires female applicants to give particulars regarding her husband's birth, whether he is dead or alive, but not regarding her own birth. The man, however, is not required to give particulars regarding his wife. Legall notes that this may be an offshoot of the legislation in which a woman takes citizenship from the man and not vice versa. Women and Criminal Law There are no specific laws against either domestic violence or rape; these are covered under legislation like the Offenses Against the Person's Act and the Criminal Law Amendment Act. In the BVI rape is a felony which carries a maximum sentence of ten years imprisonment, with or without hard labour. Rape, which is defined in common law as having sexual intercourse with a woman without her consent by force, fear or fraud, is only considered to have taken place if actual penetration occurs. It is important to note here, that BVI common law renders a male under 14 years incapable of rape. This leaves a female who is raped by a male under 14 years without any legal recourse. The common practice of defence lawyers trying to put rape victims on trial by bringing the victim's sexual history into question violates the rights of the victim and, some women argue, should be prohibited by legislation. In addition, cross-examination techniques regarding the consent and the requirement of corroboration are all aspects of rape trials which cause humiliation for the victim and result in many women opting to suffer in silence. It has been recommended that the law be sensitive to this and create a balance between ensuring the victim's rights and guarding against false accusations. It is noteworthy that while a jury may convict someone accused of rape without corroboration or witnesses, although they are usually warned to be careful about doing so, a jury cannot convict without corroboration in cases which deal with 'procuring girls to have unlawful carnal knowledge'. This 1887 statute is archaic and should be repealed. The Criminal Law Amendment Act 1987 stipulates life imprisonment for the rape of a girl under 12. "Indecent assault" of a 13 year-old-female however, carries a maximum sentence of only two years but the law stipulates a four-year maximum penalty for indecent assault on her male counterpart. In addition, the legislation also stipulates that in these cases the defendant must be acquitted if it "appears" to the jury that the defendant reasonably thought that the girl was above the age of 14. This outrageous legislation is further compounded by prohibiting prosecution after three months have elapsed. Recommendations include amendments to the legislation to increase sentences and extend the period during which prosecution can take place. The Women's Desk has also recommended that statutory rape should apply to victims of sexual abuse who are 18 years and under, instead of those under 12. Incest by males or females is punishable under the Offences Against the Person Amendment Act 1988, and the Desk has argued that the law should make it easier for victims of child abuse to testify in court. This could be accomplished through written statements or the' use of closed circuit television. The Desk has also recommended revisions to make marital rape Illegal. Eugenia O'Neal of the Women's Desk has also argued for revisions to the laws relating to domestic violence. One change recommended by Legall was recently introduced, when Section 5 of the Evidence Act was repealed. This Act which restricted a wife from testifying against her husband was repealed in order to remedy the problem posed for married victims of domestic violence as was the case when a Magistrate dismissed a case of spouse abuse against the husband on the grounds of that Act. (Legall 1988:42,43). Prostitution In the BVI prostitution is a criminal offence which carries a six-month sentence. It is also an offence for any person to allow her/his premises to be used for prostitution. According to Section 29 (2), however, any female who is guilty of forcing others into prostitution faces imprisonment. Women's Reproductive Rights While it is the right of all individuals and couples to decide freely and responsibly the number and spacing of their children, (UNFPA 1994), in the BVI family planning policies seek to hold down the fertility rates through the distribution of contraceptives, information, education and the promotion of sexual health (ICPD Report 1994). The focus on family planning has been the choice of contraceptive rather than the choice about contraceptives. These are not rights which are normally debated in the BVI, but the question of abortion is one which gives rise to debate wherever and whenever It is discussed. Abortion is a criminal offence in the BVI. Under the Infant Life Preservation Act (Chapter 34) it is an offence to commit an abortion except for the purpose of preserving the life of the mother. Chapter 54, Section 53 of the Offences Against the stipulates, however, that abortion is a felony which carries a ten year sentence, and makes no exception for preserving the life of the mother. Whether or not abortion should be legalized is an issue which will, no doubt, be debated in the BVI, but some of those interviewed argue that it should be legalized because many of the females who wish to have abortions go to the US territories where it is legal. If abortion is to be legalized, however, the lobby would probably come from women's groups or groups concerned about the welfare of women. While this may take quite some time, the legislation should be amended to eliminate contradictions concerning abortions to preserve the life of the mother. Rights of the Child Issues relating to the rights of the child, including the girl child, have also been raised in the recommendations to the Constitutional Review Commission. These urge that the Constitution should be in keeping with the UN Convention on the Rights of the Child and provide protection for children from physical and sexual abuse or exploitation, discrimination based on parents' marital status, drug trafficking and drug use. Children should also be assured access to health care and education. In addition, there are calls for the children to be allowed to acquire a nationality, for as pointed out earlier in the report, children born out of wedlock to non-national mothers and national fathers cannot automatically claim citizenship (CADA, 1993 Submission to the Review Commission). The rights of the pregnant teenager to continue schooling in the face of social pressure is another area which is subject to much debate, and supporters point to the fact that there are no similar societal pressures on boys who father children. Labour Code Ordinance (1975) Section C 4 (1) of this Ordinance prohibits discrimination against a worker on the basis of sex. It states:
While the Ordinance appears to protect the rights of the woman, Legall argues that this section gives an employer the power to discriminate in certain circumstances. He points out that there is no need to have the proviso regarding the taking of personnel actions in the Ordinance because common law already gives the employer these powers and including it here may provide a vehicle to discriminate against a woman. Women are also entitled to three months maternity leave under this Ordinance. Sexual Harassment Sexual harassment is not specifically mentioned in the law. Instances of this nature on the job are reported to the labour Department and treated as labour disputes. The Chief labour Officer points cut that most of cases are not reported, however because women are afraid of losing their jobs. Even when complaints are made, women sometimes ask that no action be taken which would involve them. As most sexual harassment victims seem to be immigrant women, there is also the fear of being deported. The Labour Department keeps those companies against which complaints are made under observation and limits the number of work permits issued to them. This method of dealing with sexual harassment obviously has its limitations and points to the need for legislation to prohibit it. Women and immigrant women in particular, need to have confidence in a system which will take action against sexual exploiters and protect them from repercussions. This, of course, will require more than legislation, it will also require the raising of the consciousness of the society with regards to the issue. Human Rights The absence of fundamental rights provisions, such as freedom from discrimination based on sex, freedom of speech and freedom of movement, from the BVI Constitution should also be noted here. Any move to ensure the rights of women should include the entrenchment of these fundamental rights in the Constitution. Language The traditional use of the masculine gender when referring to persons of both sexes is an issue which is raised by many women and women's organizations. Feminine gender is only used when there is a reference to matters relating to women. This has been the case in legislation and in written documents in general. The exclusive use of the masculine gender to refer to both sexes tends to reinforce the myth of male superiority. Attempts should be made, to either use the alternative 'he or she I she or he' or have the equal use of both she and he interchangeably in the legislation. (cf. Legall 1988). Textbook review to ensure equal gender representation is another issue which warrants attention. CONCLUSIONS The preceding review of the legislation and other factors affecting the rights of women in the BVI is not exhaustive, but it does indicate the need for urgent changes and revisions to the legislation. As pointed out earlier in the report the move for change has been initiated by the Women's Desk. The Desk has undertaken various education and awareness building projects since its inception in October 1992. These have included the extensive use of the print and voice media. Government Information Bulletins and newspapers have been used to publicize issues. Pamphlets dealing with sexual abuse and domestic violence have been created and/or freely distributed in areas where they would- be read, like beauty salons and doctors' offices. A radio programme has also been introduced. The popular open phone line method increases public participation and also serves to create interest in and debate on the issues. The establishment of a Women's Studies Section in the Public Library in 1993 is also part of the Desk's programme. This Section contains both written and audio-visual material and has been intentionally made user friendly by its lounge setting. The Women's Desk has also facilitated networking between various community and government groups and encouraged NGO activities geared at promoting the advancement of women's welfare. The Desk's Head has made use of opportunities to speak at several women's and community service clubs' meetings to acquaint them with the issues. This has led to these groups undertaking further initiatives to ensure that their members and others are also made aware of the issues. Numerous discussions have been held by various organizations on the.discriminatory laws which affect women. The Desk has also been instrumental in setting up the Law Reform Committee which is presently reviewing the legislation affecting women with a view to making recommendations for changes to the Government. This is a very important step in realizing the legal implementation of the UN Convention on the Elimination of All Forms of Discrimination Against Women. In addition to the foregoing, the Desk has also made and encouraged submissions on related gender issues to the Constitutional Review Commission and the Health Reform Project currently being carried out by the Ministry of Health. The Women's Desk has also made a case for the creation of gender-based statistics which will serve as a data base for the formulation of gender-specific policies and programmes. This process has already been started by the Development Planning Unit. We would be remiss if we did not give credit to Oswell Legall's contributions to the education awareness process. His work preceded the establishment of the Women's Desk and was underway even before the establishment of the Women's Focal Point, the group which lobbied for the setting up of the Desk. Legall's work was obviously motivated by his commitment to the eradication of gender discrimination. ' His insights and understanding of the issues affecting women have been very useful in identifying the discrepancies and clarifying some of the legal jargon which is usually incomprehensible to the ordinary person. His work has made the education and awareness building process and the legal reform much more effective by concentrating most of the legal inequalities in a single readable document and providing a point of reference for the Women's Desk and the Legal Reform Committee. |
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