Domestic violence cases should be tried even when victims refuse to testify

– rights activists

On July 10, 29-year-old Selina Ramotar was brutally stabbed ten times and left to die by the father of her child with whom she had severed a relationship. She was nursed to back to health and months later, she stepped into the witness box in the magistrate’s court and gave sworn testimony indicating that she did not want to offer evidence against her attacker.

Minutes later, the charge against Uttanpad Sewnarine was withdrawn and he left the court with the knowledge that he no longer faced a prison sentence.

The story of Ramotar is an all too familiar one. Many women after years of abuse which often leaves them scarred for life, would decline to give testimony and their abusers would get off scot-free.

But it does not have to be that way. Human rights activists believe that the time has long come for police to proceed with matters, even when the main witness declines, using circumstantial evidence or other witnesses to the crime.

“I, as a lay person, see no reason for the DV [domestic violence] cases being withdrawn by the prosecution because the complainant/survivor… [refuses] to testify/give evidence against her accused,” rights activist Danuta Radzik told the Sunday Stabroek recently.

She said in that the case referenced above there seemed to be enough circumstantial evidence as well as eyewitnesses who could have testified “about this brutal murderous attack.”

Radzik said there have been many complainants that police do not investigate crimes, including DV crimes, thoroughly enough and tend to rely solely or mostly on victim statements or confessions “instead of building as far as possible iron-clad cases - ensuring other witness statements are collected, and crime scene forensic evidence is recovered and analyzed.”

She pointed out that under Canadian law, which is similar to Guyana’s as it also is based on English law, the state goes forward with cases even when the complainant/survivor withdraws.

“This must become a reality in Guyana, the message must be sent loud and clear DV is a crime, it is a serious crime. If left unchecked it can escalate and result in further violence and death, murder,” Radzik said.

In the United Kingdom, according to the Crown Prosecution Service (CPS), when deciding to charge an alleged abuser they think very carefully about the interests of the victim, but the decision is taken on behalf of the public at large and not just in the interest of any particular individual. If a victim decides not to testify that does not necessarily mean the case will be dropped. According to the CPS website, “we will first consider what other evidence is available. As a general rule we will prosecute all cases where there is sufficient evidence and there are no factors preventing us from doing so.”

The CPS stated that if the victim decided to withdraw support, “We have to find out why and this would involve delaying the court hearing to investigate the facts and decide the best course of action.” Importantly, it was stated that a prosecutor experienced in domestic violence would be appointed to the case.

Additionally if it is suspected that the victim has been pressured or frightened into withdrawing the complaint, “We will ask the police to investigate further. If necessary, we will ask the court to delay any hearing so that a thorough investigation can take place before we decide about the future of the case.” Danuta Radzik

Many times when a victim decides not to testify persons would label them and sometimes question how they could be so ‘stupid.’

But according to a counsellor at Help & Shelter, who has worked for some 20 years with victims of domestic violence and sexual crimes—14 of which were spent in victim support in court—many times the victims are fearful and for some the court experience offers no support. Rather it is as if they are re-victimized in the halls where justice should be offered.

The fear factor is even great for the counsellor, who declined to let her identify be made public as she has had colleagues who have been threatened in the past. While she will continue to give support to victims who need it she did not see the wisdom in unnecessarily exposing herself.

Giving an insight to her work, the counsellor said that while at times she has had victims who were bold and ready to testify, when they entered the courtroom “nervousness steps in. Even though they did not do anything wrong they still have some kind of fear. Some of them are afraid to be in court with their abuser…”

She said those who provide that critical service would encourage the victims to attend court, wait for them outside and keep reassuring them. There have been many heartbreaking cases where women refused to testify against their alleged abusers. In one case, this happened more than once, with the wife being beaten within an inch of her life by her husband but later declining to offer evidence.

The counsellor believes that the key witness—the victim—is important, but it was pointed out that there are cases where the victim dies and witnesses to the crime would testify.

On this point, Kissoon said he has heard persons say time and time again, ‘What if she dead? Den how dey gun get victim fuh testify?’ He noted that the prosecution has to be build a case against the perpetrator using all of the evidence available. “The victim’s statement is no doubt a key piece of evidence. However, there [should be] witnesses, photographs of injuries, statements, and other evidence, to build the case. There are also supposed to be concerns about the public interest,” Kissoon pointed out.

He said it was a myth that a survivor can drop charges because actually it is the magistrate who has to withdraw the matter and the prosecutors who have to decide on the other evidence available. “This requires serious commitment. It requires training and accountability for those who are tasked with dealing with these matters,” Kissoon said.

And even though many days have been difficult, the Help & Shelter counsellor with whom this newspaper spoke said that there are some rewards, “especially when victims get the justice they deserve and you were there to support them. It is hard for the victims because the people who would start with them at the beginning are unable to go to court with them because of work commitment and the trial would drag out,” she said.

This newspaper approached Ramotar for an interview but she declined. According to sources, she is no longer afraid of the man but wanted to “give him a second chance.” This newspaper was also told that Ramotar was not afforded counselling, which may have strengthened her resolve to pursue justice.

Human rights activist Sherlina Nageer underscored the importance of counselling since it is clear that the justice system is weak and accessing same is not enough. “… Victims need psychological support as well but most do not get that, unfortunately, and fall back into abusive relationships,” she told this newspaper in an invited comment.

The issue of counselling was endorsed by the Help & Shelter counsellor who said many times victims are referred to them from the Georgetown Public Hospital.

Describing the issue as a “tough one” Nageer pointed out that it is important to respect the victims of violence and “not further their disempowerment.”

While in her opinion magistrates should be compelled to pursue cases against abusers, especially if there are witnesses and previous reports of abuse, “in order for the cycle of violence to be broken, all the factors that contribute to violence must be addressed—emotional, sociocultural, economic, etcetera. As a society we need to fund and promote mental wellness programmes/activities— not just for victims of violence but overall—as a positive, preventative measure.”

For Kissoon, emotional strength is required and from stories he has heard counselling helps in building that strength.

“It would be nice if in Guyana, there are protocols at the health centres, hospitals and police stations which ensure that counselling is offered (not when people are asleep or confused) and that even if people refuse the first time, they are given flyers and cards so that they call when they are ready,” Kissoon said.

And he said it was unfair to keep saying that a perpetrator gets away when a survivor decides not to testify or participate in a trial, as in Guyana there has never been any serious commitment to dealing with domestic violence. “If there was, we would be building up the skills, capacities and the competence of the justice system to respond appropriately,” he noted.

Radzik pointed out that the Guyana Police Force has divisional domestic and sexual violence units but they need to let the public know how these units are staffed and what role they play in prevention, protection and prosecution of domestic and sexual violence crimes.

“As withdrawal of cases are frequent there must be a legal response which will allow these cases to go forward even when the complainant/victim/survivor withdraws,” she posited.

It should be clear, she said, that such cases are not petty crimes, but crimes which if left unchecked can result in murder, maiming and femicide. According to Radzik, the justice system is flawed and fails to recognize and take into account the dynamics, effects and consequences of DV on victim/survivors, families and society.

“The failure to prosecute and convict these genderbased crimes often result in the same woman or other women becoming subjected to similar types of brutal physical, psychological and sexual intimate partner domestic violence by these same perpetrators,” she said.

And when the justice system fails to convict offenders, a dangerous message is sent to persons who will continue to engage in domestic violence crimes, since all the evidence and research shows that without some kind of professional intervention this kind of behaviour will continue unchecked and more than likely will escalate.