Legislative Assessment Update: People

Living with HIV and Women and Girls in

Trinidad and Tobago

Gaietry Pargass
September 2012
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ACRONYMS

AIDS

Acquired Immune Deficiency Syndrome

HIV

Human Immunodeficiency Virus

NACC

National AIDS Coordinating Committee

NSP

National Strategic Plan

MSM

Men Who Have Sex with Men

PANCAP

Pan Caribbean Partnership Against HIV and AIDS

PLHIV

People Living With HIV/AIDS

UNAIDS

The Joint United Nations Programme on HIV/AIDS

UNDP

United Nations Development Programme

1.0 Background
Trinidad and Tobagos National Strategic Plan for HIV/AIDS for the period 2004 to 2008 (NSP
2004-2008), extended to 2011, represented the countrys expanded response to HIV/ AIDS. The
NSP 2004-2008 identified HIV related stigma and discrimination as an important factor
influencing the HIV /AIDS situation in Trinidad and Tobago and noted therefore that
safeguarding the human rights of people living with HIV (PLHIV) and HIV- vulnerable
populations was critical to an effective national HIV response. Vulnerable populations included
sex workers,men who have sex with men, women, children/ adolescents, substance abusers and
prisoners. In this context, the NSP 2004-2008identified Advocacy and Human Rightsas one
ofits five priority areaswith the statedgoal ofupholding thehuman rightsofPLHIV and
The reduction of stigma and discriminationagainst PLHIV and safeguarding the human rights of
vulnerable populations was also identified as a key strategic objective for achieving the two
overarching goals of the NSP 2004-2008, namely, to reduce the incidence of HIV infections in
Trinidad and Tobago and to mitigate the negative impact of HIV and AIDs on persons infected
and affected in Trinidad and Tobago.
The NSP 2004-2008 further recognised that an adequate legal framework was necessary for
safeguarding the rights PLHIV and vulnerable populations. Hence, the creation of a legal
frameworkfor protecting the rights of PLHIV and those affected by HIV/ AIDS was identified as
a key strategic activity andtheenactment of legislation to prevent discrimination and other human
rights abusesagainst PLHIV andvulnerable populations was identified as a key outcome.
The NSP 2004-2008 thusunderscored the importance of laws in defining, respecting and
fulfilling the human rights of these populations while underlining thatthe disproportionate impact
of HIV and AIDS on people living with HIV and populationsvulnerable to HIV made
theimprovement of their legal status and realization of their human rights critical if an effective
response to the epidemic was to be achieved.

TheNational AIDS Coordinating Committee (NACC), the body established to coordinate and
monitor the activities of the NSP 2004-2008, in carrying out its mandate under the specific
priority area of Advocacy and Human Rights, commissioned an assessment of the laws of
Trinidad and Tobago to determine the adequacy of theexisting legal frameworkfor addressing
violations of the human rights of PLHIV and populations vulnerable to HIV and to make
recommendations forlegal reforms. The overall objective of the assessment was the creation of
an enabling environment for the prevention and management of HIV/AIDS.The assessment was
completed in 2009 (2009 Legislative Assessment) by the author of the present review.
Thepurpose of thecurrent review is to update the2009 LegislativeAssessment,
focussingspecifically on the rights of PLHIV and Women and Girlsand further, to carry out a
review of the laws of Trinidad and Tobago to identify key issues pertinent to HIV in the
Uniformed Services that prevent comprehensive management of HIV in accordance with the
National HIV Policy which has delayed the acceptance and adoption of a workplace policy for
the Uniformed Services.

1.1 Methodology

The methodology comprised the following:

(1) A detailed review of the 2009 Legislative Assessmentto ascertain the extent to which
thelegislative framework for safeguarding the human rights of the PLHIV and Women
and Girls had been strengthened since its completion. The process that led to the 2009
Assessment was a consultative one and incorporated many of the recommendations
emanating from three stakeholders consultations heldin Tobago, San Fernando and Port
of Spain. It was therefore necessary to summarise the issues, findings and
recommendations of the 2009 Legislative Assessment as it pertained to PLHIV and
Women and Girlsto enable a comparative analysis.
(2) Key informant interviews todetermine whether the human rights issuesfaced by these two
populations- as identified in the 2009 Legislative Assessment-were still relevant and
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thereforewhether the need forstrengthening the legal framework to protect against

violations of their human rights remained.
(3) A review of the laws governing the Uniformed services, meetings with relevant personnel
from the Ministry of National Security and a review of the literature relevant to HIV in
the Uniformed Services.

2.0 People Living with HIV (PLHIV)

2.1 Findings of the 2009 Legislative Assessment
(1)Factors underlying HIV-related discrimination
The 2009 Legislative Assessment -which was based on a review of the literature, a review of the
laws of Trinidad and Tobago, interviews with key informants and stakeholder consultationsfound that HIV related stigma and discrimination was a major issue for the PLHIV community
and prevented the effective management of HIV/AIDS. Evidence from interviews with key
informants as well as the available literature suggested that the major factors fuelling HIV-related
stigma and discrimination werefear ofthe disease, lack of knowledge of HIV transmission and
deeply ingrained prejudices against men who have sex with men and sex workers. These two
populations were still primarily associated with the disease. Fear of the disease had
neverthelessdiminished in importance as adriver of HIV related stigma and discrimination
owing to the advent of anti-retroviraldrugs: HIV was no longer viewed as a death sentence. .
It was further noted that notwithstanding that pre-existing stigma and discrimination against
men who have sex with men and sex workers was primarily fuelling HIV-related stigma and
discrimination, these linkages were not reflected in the NSP 2004-2008. The NSP 2004-2008
nevertheless identified these two groups as key vulnerable populations. Further, national
campaigns to address HIV-related stigma and discrimination also consistently omitted to
acknowledge these linkages, probably due to the continued criminalisation of homosexual
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conduct and sex work in Trinidad and Tobago. In addition, the Equal Opportunity Act, 2000
expressly denies remedies to persons whose rights have been violated based on their sexual
orientation.
The 2009 Assessment noted that homophobia ran deepin Trinidad and Tobago, as it didin many
other Caribbean societies. Indeed, homophobia continued to be a major barrier to ending the
global HIV epidemic since it prevented gay men as well as other males who feared being
labelled gayfrom accessing prevention and care services. The 2009 Assessment pointed out that
cultural and social norms were intolerant of what were perceived to be deviant sexual
behaviours. Moreover, powerful socializing agents in the society - including the family, the
community, education, religion, popular culture, the media and the law - reproduced and
reinforcedthese norms which centred on gendered notions about male and female sexual conduct
while also conflating sex and sexuality with ideas of morality. Religion, in particular, playeda
key role in regulating sexual behaviour and managing sexuality through norms of morality. In
this regard, the CARICOM Caribbean Regional Strategic Framework (2008-2012)1 notes that the
prevailing social and cultural norms [in the Caribbean] are intolerant of behaviours which are
perceived as threatening to strong religious customs.
The 2009 Assessment also noted that sex work wasalso viewedas immoral and was highly
stigmatised. Women deemed promiscuous were also viewed along this spectrum of morality.
The fear therefore of being labelledgay or a sex worker acted as a powerful deterrent to HIV
testingand to accessing treatment and care services. The 2009 Legislative Assessment contended
therefore that it was imperative to address the pre-existing stigma and discrimination associated
with these two groups in order to effectively address HIV-related stigma and discrimination. This
emerged as a major gap in the national response.

(2) Extent and manifestations of HIV-related discrimination

1http://www.pancap.org/docs/Working%20Document%20-%2010th%20AGM%20of
%20PANCAP.pdf.

The actual extent of HIV-related stigma and discrimination at the time of the conduct of the 2009
Assessment was not known since noquantitative studies had been carried out to measure these
phenomena.A qualitative assessment of HIV- related stigma and discrimination commissioned
by United Nations Development Programme in collaboration with the National AIDS
Coordinating Committee(UNDP/NACC National Assessment)2found thatHIV-related
discrimination occurred in a range of settings including the workplace, health care institutions,
the community and in the provision of goods and services, withprofound economic and social
consequences.Loss of employment, work-related benefits and employment
opportunitiesweresome of the manifestations of discrimination in the workplace.Screening for
employment was reportedly practised both in the private and public sectors and wascarried out
as a matter of policy in the protective services. Screening was also reported to be a frequent
practice in the hospitality and services sectors. Public service employees were also reportedly
screened for HIV as part of the standard medical examination required for promotion - although
it appeared thatemployees could have refused to submit to an HIV test.
The UNDP/NACC National Assessment also identified public health care institutions as a major
areafor stigma and discrimination. Experiences of discrimination included lack of access to
treatment, the withholding of different kinds of treatment options for illnesses (e.g. dialysis) and
breaches of privacy. Problems sourcing HIV/AIDS friendly dentists to address the many dental
problems associated with AIDS were also reported. Discrimination was also experienced in
private healthcare settings. Thus, for example, persons with HIV reportedly were routinely
referred to public health facilities notwithstanding their ability to afford private health care.3
Breaches of confidentiality in health care settings were also reportedly an on-going practice.
Complaints included HIV written in red on a patients medical file4 and discussions of the
patients HIV statusin the presence of other non medical persons.5 Lack of HIV-related

2 United Nations Development Programme/National AIDS Coordinating Committee

(2005). National Assessment: HIV-AIDS Law, Ethics and Human Rights.
3Ibid. pp.32-33.
4Ibid. p.15.

information, misinformation about treatment and its impact as well as limited treatment options
also emerged as critical issues.
Persons living with HIV also reported denial of insurance coverage.6For example, some
insurance companies expressly excluded liability for death due to AIDS, an AIDS- related
condition, or an HIV-related condition thus denying HIV positive individuals to protect their
families and their assets through purchase of individual life insurance. Health coverage was also
reportedly denied. It appeared that insurance companiesweretreating HIV/AIDS differently from
analogous medical conditions.
.

(3)Adequacy of the Existing Law: the 2009 Legislative Assessment

The 2009 Assessment found that the existing legal framework did not adequately protectpeople
living with HIV againstthe various forms of discrimination they experienced in the society. The
Constitution as well as the Judicial Review Act Chap. 7:08 offered some protection but this
waslimitedby the state action doctrine and the general elusiveness of High Court remedies.
PLHIVwere fearful of the public exposure that High Court action entailed.
Protection against workplace discrimination under the Industrial Relations Act Chap.88:01 was
also limited since it only addressed dismissal if this could be construed as harsh and oppressive
or not in accordance with good industrial relations practice. The Act did not explicitly prohibit
dismissal on the basis of HIV status or suspected HIV status although dismissal on this basis
could be construed as harsh and oppressive. Denial of promotional and other opportunities was
not prohibited and remedies had to be sought, for example, under the Judicial Review Act which
did not apply to the private sector. A remedy for constructive dismissal was also available under
the common law but had to be pursued in the High Court.

5Ibid. pp.32-33.
6Ibid.p.32.

Notably, general anti-discrimination legislation, the Equal Opportunity Act, had been enacted
since 2000. The Act prohibited discrimination in employment, education, the provision of
accommodation and in the provision of goods and services. However, while it made provision
for redress structures which avoided the courts and therefore more appropriate for addressing
HIV-related discrimination, it did not cover HIV status or suspected HIV status.The Equal
Opportunity Commission, established under the Act, began receiving complaints in about April/
May 2008,but could not consider complaints made by aggrieved PLHIV. Several complaints by
PLHIV had nevertheless been lodged with the Commission.
The 2009 Assessment also found that the privacy and confidentiality protection in the law was
weak. A Data Protection Bill existed at the time.
As regards other issues such as social security and workplace benefits, the 2009 Assessment
noted thatHIV status did not operate as a bar.People living with HIVwereequally entitled under
the National Insurance Act Chap. 32:01, the Minimum Wages Act Chap. 88:04 and the
Workmens Compensation Act Chap.88:05.Workplace safetywas guaranteed under the
Occupational Safety and Health Act 2004 (which came into force in February 2006).
Recommendations of the 2009 Legislative Assessment
The 2009 legislative assessment recommended that theEqual Opportunity Act 2000 be amended
to reflect the following:
*(i) The definition of status should be expanded to include HIV status or suspected HIV status
*(ii) The definition of disability should be widened using a formula that includes but not
limited to include HIV infection.
(iii)Section 17 which deals with the provision of goods and services should expressly mention
health care services and services provided by the government, a government authority or a local
government body.

2. Legislation should be enacted to expressly prohibit HIV screening for the purposes of
employment, promotion, training or benefits or for any other purpose.Alternatively, such
provisions may be included in the Equal Opportunity Act 2000.
3.Provision should be made to guarantee confidentiality of medical information irrespective of
the format in which the information is collected or stored.The Data Protection Bill 2009 is
intended to protect the confidentiality of personal information, including medical information,
stored in electronic format only. [See also recommendations under Public Health issues].
*5. The Constitution should be amended to widen the grounds of non-discrimination in keeping
with modern human rights principle.
* These recommendations were in keeping with recommendations made by Stakeholders.

3.0 Current Assessment

3.1 Summary of Issues
Extent and manifestations of HIV-related discrimination
According to keystakeholders interviewed for the current assessment, HIV- related stigma and
discrimination continuedalmost unabated inthe workplace, in the health care settingand in the
provision of goods and services.There was a strong perceptionamong stakeholdersthatstigma and
discriminationtowards PLHIV had either remained unchangedor had increased since the 2009
Assessment. Many felt that the NACC/UNDP Assessment, conducted in 2005, and which found
that HIV-related stigma and discrimination occurred in a range of settings was still very relevant.
Stakeholders interviewed noted as follows:
There is still a lot of stigma and discrimination in government institutions and in the private sector
(Professional working in the area of HIV).
We are doingeducational programmes with workers, including those on construction sites.There is still
a lot of ignoranceabout the spread of HIV. (Professional working in the area of HIV).

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Stigma and discrimination are still on the rise.Youcannot stop it. (NGO representative #1)
A client was diagnosed three weeks ago...that person is in a mess. A co-worker uses wet wipes before
using the phone. (NGO representative #2)
There is a heightened fear of stigma and discrimination on the part of PLHIV (NGOrepresentative
#3)

Stakeholders again highlightedthe practice of HIV testing in the public sector for the purposes of
promotion and noted that it was contrary to the 2009 National HIV Testing and Counselling
Policywhichrejects screening for employment or mandatory testing for public health purposes.
They also noted that the uniformed servicescontinued to implement a policy of HIVscreening,
with HIV-positive potential recruitsbeingdenied recruitment. The NACC/UNDP Assessment
(2005) found that HIV screening in thehospitality and services sectors was a common practice
but it is not clear, based on the interviews for this update, whether this isa continuing practice.
Having regard to the provision ofgoods and services, stakeholders noted that
insurancecompanieswere still not makinginsurance products available to PLHIV. One
stakeholderalso asserted that some private schools continued to exclude HIV- positive children.
The evidence gathered for this update was based on interviews with a small sample of key
informants and therefore notconclusive as to whether the levels ofHIV-related stigma and
discrimination have increased or decreased since the 2009 Legislative Assessment. It would
appear, however, that HIV-related stigma and discrimination continues to be a problem and, as
such, may still have a significant impact on HIV prevention efforts. Stakeholders consistently
noted the diminished focus on HIV-related stigma and discrimination in recent years and the
lengthy delay in enacting legislative reforms, particularly the proposed amendmentto the Equal
Opportunity Act, 2000 to include HIV status asa prohibited groundof discrimination.
Stakeholderswere further of the view that despite the importanceascribedto HIV-related stigma
and discrimination in the NSP 2004-2008and at high- levelnational and regional meetings, this
did not translate into action at the ground level. Some stakeholders also expressed the view that
the draft NSP 2011-2016 was inadequate in that little focus was placed on the PLHIV
community.

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Factors underlying HIV-related discrimination

Stakeholders interviewedforthe presentassessment weregenerally of the view that pre-existing
stigma associatedwithhomosexuals andsex workerswastheprimary factorfuelling HIV-related
stigma and discrimination in Trinidad and Tobago.The view was also expressed that such
prejudices remained entrenched, andfurthermore, werereinforcedin the law. It was also noted
thatlittle attempt had been made to bring about public awareness of the linkages between HIVrelated stigma and discrimination and the stigma associated with these twopopulation groupsin
an effort to transform societal attitudes. One stakeholder asserted that unless this issue is
confronted and dealt with in the public domain, HIV related stigmaand discriminationwill not
go away.
According to stakeholders, fear of the disease appeared to have diminished in importance due
perhaps to an increasing acceptance ofthe chronic nature of the disease, that is, HIV was no
longer a death sentence. There is clearly a need for research to ascertain the role that these
factors play in fuelling HIV-related stigma and discrimination in order to develop evidence-based
policies.

3.2 Current status of the law

Discrimination
As noted in the 2009 Assessment, PLHIVare unable to access the remedies under the Equal
Opportunity Act, 2000, due to the fact that HIV/AIDS status/ perceived HIV status is not a
prohibited ground of discrimination. Moreover, the ground of disability which could
conceivably offer an alternative route for protection is defined in a manner that operates to
exclude a person living with HIV or AIDS.
A Bill to amend the Act the Equal Opportunity (Amendment) Bill 2011proposes to close this
gap by expanding the prohibited grounds of discrimination to include HIV/AIDS Status. The
Bill was introduced in the Parliament in 2011 but has not been debated. Importantly, the Bill
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defines HIV/AIDS status to includeactual or perceived presence in a persons body of the

Human Immunodeficiency Virus (HIV) or symptoms of Acquired Immune Deficiency Syndrome
(AIDS), as well as adverse assumptions based on such presence and symptoms in keeping
withinternational best practice. Once enacted, the amending legislation will enable the Equal
Opportunity Commission -which began hearing complaints in 2008- to deal with complaints
lodged by aggrieved PLHIV.
Reportedly, ten HIV-related complaints for the period 2009-2010 have been lodged with the
Commission, notwithstanding its inability to deal with these complaints. The Bill makes
provision for alleged acts of discrimination which occurred during the period 31 January 200121 April 2008 to be lodged with the Commission within a year after the date of the
commencement of the amending legislation and it appears therefore that complaints made after
that time will not be considered. Hopefully, this will be rectified at the time of the passage of the
Bill. The Bill also seeks to expand the categories of persons who will be able to lodge complaints
on behalf of aggrieved persons. This is particularly important for PLHIV, many of whom are
reluctant to initiate legal action
The Equal Opportunity Commission has a duty to investigate all complaints received and attempt
conciliation with respect to matters which, in its opinion, can be so resolved. The Commission is
required to refer matters to the Equal Opportunity Tribunal, with the consent of the complainant,
where conciliation has failed or where the Commission is of the opinion that the subject matter
of the complaint cannot be resolved by conciliation. However, no referral to the Tribunal can be
made unless the Commission takes the following steps as mandated under section
39:
(a) prepare a report relating to the investigation with its recommendations;
(b) send a copy of the report to the parties to the complaint;
(c) publish the report; and
(d) make the report available for inspection by the public.
The privacy afforded by the Equal Opportunity Act, 2000 and the ease of access to the
Commission perhaps explains why PLHIV appear to be more willing to make complaints under
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the Act as opposed to pursuing court remedies, where these are available. However, should the
Bill become law, the steps outlined at (c) and (d) above are likely to prevent aggrieved PLHIV
from consenting to their matter being referred to the Tribunal in those instances where the
Commission is authorised to do so.
It may be noted that the proposed amendments, as reflected in the Bill, do not prohibit screening
for employment. It is hoped therefore that discrimination in employment on the basis of HIV
status or perceived HIV status will be interpreted to include screening for employment or for
promotional, training and other opportunities that may arise in the course of employment.
In addition, the Bill does not include sexual orientation as a prohibited ground of discrimination
notwithstanding the advocacy efforts of non-governmental organisations such as the Coalition
Advocating for Inclusion of Sexual Orientation (CAISO).
The Equal Opportunity Tribunal has been established and is hearing complaints referred to it by
the Commission. The PLHIV community, nevertheless, continues to be deprived of the remedies
under the Act because of the delay continues to be when operational, will be able to grant a range
of remedies including damages, compensation and fines.

Confidentiality /Privacy

At the time of the conduct of the 2009 Legislative Assessment, a Bill to make provision for the
protection of data, including personal data, had been introduced inthe Parliament but not yet
enacted. The Bill, with modifications, has since been passed in both Houses of Parliament the
relevant enactment is the Data Protection Act, 2011. The Act was assented to in June 2011 and is
awaiting proclamation.It addresses several of the gaps identified in the 2009 Legislative
Assessment.
The object of the 2011 Act is to ensure that an individuals right to privacy and the right to
maintain sensitive personal information as private and personal is protected. The Act defines
personal information as information about an identifiable individual that is recorded in any
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form including, inter alia, information relating to the education or the medical, criminal or
employment history of the individual." Sensitive personal information is further defined to mean,
inter alia,information on a persons physical or mental health or conditionand sexual orientation
or sexual life.The Act thereforeacknowledges thatan individual may have an alternative sexual
orientation -the fact of whichrequires protection in the lawbecause of the likelihood of violations
of that persons rights should that information not be treatedas sensitive information.
Thisconstitutesan important legislative advance in the context ofHIV related stigma and
discrimination which, as noted earlier, islargely fuelled by the stigma and discrimination
associated with MSM (and sex workers)and is in stark contrast with the Equal Opportunity Act,
2000whichexpressly deniespersons with an alternative sexual orientation the right to protection.
It is perhaps also useful to note the approach to confidentiality/ privacy taken by the CARICOM
Model Anti-Discrimination Law(2011).The CARICOM Model sets out the following provision
on privacy and medical confidentiality:
A health practitioner, worker, an employer, a recruitment agency, an insurance company, a data
recorder and other custodian of any medical records, files, data or test results shall observe
confidentiality in the handling of all medical information and documents, particularly the identity
and status of a person who is HIV-infected. Confidentiality shall not be considered breached where
a person referred to in subsection (- ) complies with reportorial requirements in conjunction with
the monitoring and evaluation programmes pursuant to a law and the person is responding to an
order of the Court over legal proceedings where the main issue is the HIV status of a person.

Essentially, the Model establishes a default rule with two specified exceptions, both in
accordance with law. The CARICOM Model also covers a wide range of persons and institutions
that handle medical information. The list is not exhaustive and, as such, other custodians of
medical information not expressly mentioned can be added. The CARICOM Model, however,
does not cover situations where a worker does not handle medical information but who, because
of proximity, becomes aware of a persons HIV status or other medical information and discloses
without authorization to community members, relatives and others.
The Data Protection Act, 2011 also does not expressly deal with violations of privacy by workers
who do not handle medical data. It nevertheless spells out general principles which are

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applicable to all persons who handle, store or process personal information belongingto another
person andisframed in a manner that could conceivably apply to workers.
Theguiding principles articulated in the PANCAP Regional Policy on HIV-Related Stigma and
Discrimination (2010) are more or less reflected in theData Protection Act, 2011.Theprinciples
set out in the PANCAP Regional Policy document extend to thefollowing:

Specifically declare medical information as private or confidential information or

personal/medical data subject to protection which will require the expressed consent in
writing of the Patient or client as the circumstances require for its release to a third party.
This would require that insurance companies secure the written consent of patients to
receive medical information. In relation to employment practices, the implication would
be that doctors must gain the consent of employees before passing on medical reports to

the employer.
Create a duty to maintain confidentiality in relation to all medical information including
the results of tests and information received on all forms from the clients or potential

clients of insurance companies.

Provide that labelling of medical files should not be discriminatory (for example, colour

coding or any other distinguishing mark on the files of persons living with HIV).
HIV and AIDS information should be included within the definition of personal/medical
data subject to protection and there should be a clear prohibition of the unauthorized use
and/or publication of HIV-related information on individuals, particularly in the media.
This prohibition must specifically include protection against the unauthorized disclosure
of ones status or perceived status by media or media personnel. The sanction for breach

in these circumstances should be criminal.

The legislation should also provide the patient with civil sanctions against the health care

provider and their staff where there is a breach of confidentiality.

The legislation should allow an individual to gain access to his or her medical records
and to request amendments to ensure that such information is accurate, relevant,
complete, and up-to-date.

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4.0 Discussion

As noted in the 2009 Assessment, the elimination of arbitrary discrimination based on a persons
HIV status (actual or presumed) is an imperative for the management and prevention of the
disease. The absence of an adequate legislative and policy framework to address HIV-related
discrimination has serious negative consequences for the management of HIV: fear of or actual
discrimination discourages HIV testing and access to care and treatment, reinforces HIV-related
stigma and prevents disclosure, thereby jeopardizing public health interests. In addition, HIVrelated stigma drives HIV-related discrimination which further reinforces stigma towards this
community.
Many of the reforms recommended in the 2009 Legislative Assessment for increasing the
protection of the PLHIV community againstviolations of their rights have not yet been
introduced and where reforms have been introduced, such as the Data Protection Act, 2011, these
have not been implemented. Among other factors, interviewees attributed this to the lack of
advocacy on the part of PLHIV, noting further that members generally lacked the capacity to
advocate on their own behalf and/or were fearful of stigma and discrimination. One interviewee
noted as follows:
Who should carry the mantle of human rights? Who must challenge the governments to act?
There are pockets of members who have the capacity but the majority of the community do not
have the capacity There should be a strong partnership between all civil society
organisations The absence of the NACC has not helped.

Enacting the Equal Opportunity (Amendment) Bill, 2011 with the further amendments as
identified in this assessment must therefore be viewed with some degree of urgency.
It must be reiterated, and as interviewees for the current study have underscored, the layering of
HIV-related stigma and discrimination of pre-existing stigma and \d discrimination can no longer
be ignored in official policies and programmes. The fear of being labelled gay or a sex worker
is intense because of the moral condemnation of the sexual conduct associated with these
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populations continue to fuel HIV-related stigma and discrimination and poses a major obstacle
to prevention and treatment strategies. Strategies to address HIV-related stigma and
discrimination must therefore necessarily address the pre-existing stigma associated with these
two populations.
As noted earlier, the Equal Opportunity Act, 2000 does not include sexual orientation as a
prohibited ground of discrimination. The Act expressly states that the term sex (a prohibited
ground of discrimination) excludes sexual orientation or sexual preference thus denying its
remedies to the homosexual population. The Equal Opportunity (Amendment) (No.2) Bill 2011
leaves this untouched. This is not only contrary to the interpretation of sex in core United
Nations Conventions which Trinidad and Tobago has ratified but further setsup the contradiction
whereby, on the one hand, the Billis seeking to protect PLHIV against discriminatory conduct
whileon the other hand the Act denies the homosexual population the same right to protection in
a context where discrimination against PLHIV is primarily driven by the stigma associated with
homosexuals (and sex workers).
It is nevertheless recognised that dealing with antipathy towards homosexuals is difficult in the
Caribbean, much of which has had a long history of intense homophobia. Denial of the human
rights of this population is supported by many Caribbean governments.7 National HIV policies
and programmes have more or less ignored the linkages between HIV-related stigma and
discrimination and pre-existing stigma and discrimination. On the other hand, the linkages
between HIV related stigma and discrimination and pre-existing stigma were readily made by
stakeholders interviewed for the present assessment. As noted in the 2009 Legislative

7 PANCAP, in its Round 9 funding proposal to GFATM stated as follows: Sexuality and repression are recurrent
themes in Caribbean culture. Practices exist that are taboo and thus hidden, none moreso than men having sex with
men. Traditional small town and island societies, highly religious and prone to gossip, tend to strongly stigmatize
those openly involved in male-to-male sex and sex work. As a result, men hidethese activities, often migrating
temporarily or permanently to gain anonymity. Discrimination can be extreme: violence is all too frequent in some
places. Many who need testing and treatment services avoid them, sincecondentiality is poorly guaranteed.
Legaland regulatory systems reflect these barriers,as do the attitudes of some health serviceproviders (as when AIDS
patients are refusedentry to public hospitals). Information onvulnerable populations is difcult to obtain due to their
fears about lack of condentiality.PANCAP. 2009. Global Fund Round 9 Proposal. Available at
www.globalniyfond.org/grantdocuments/9MACH_1885_0_full.pdf ].

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Assessment, it is not possible to deal with HIV-related stigma and discrimination without
addressing the stigma and discrimination upon which this is layered.
Consideration needs to be given to decriminalising homosexual conduct between consenting
adults in private and ensuring that the Equal Opportunity Act, 2000 does not discriminate against
persons based on their sexual orientation. There was almost unanimous support for this position
at the three stakeholders consultations conducted for the 2009 Legislative Assessment and
interviewees for the current assessment also supported this position both from the human rights
and public health perspectives. There is also need for informed public debate on the issue.
Significantly, the Draft Gender Policy which has undergone several revisions since 2005 and
which is currently before the Cabinet8urges public discussions on these issues.
It may be noted that stakeholders consulted for the 2009 Assessment also recommended the
decriminalisation of prostitution but this issue did not emerge during the interviews conducted
for the current assessment.
Lack of confidentiality of medical information emerged as a major issue during the conduct of
the 2009 Assessment - the health care setting was identified as the primary site of such violations
and again emerged as an issue in the present review. Guaranteeing the confidentiality of a
patients medical information and security of his or her medical records is crucial for preventing
HIV-related stigma and discrimination. It constitutes not only a violation of the human rights of
PLHIV but leads to further violations, as discussed.

5.0 Conclusion
The enactment of legal reforms to safeguard against violations of the rights of PLHIV has been
slow. Several factors may account for this including the general lack of capacity of PLHIV to
advocate on their own behalf, a relatively weak civil society advocacy platform coupled with a
lack of resources to engage in advocacy campaigns, a lack of research data to inform advocacy
initiatives and an apparent lack of priority accorded to HIV-related stigma and discrimination in
the official HIV discourse. Building the capacity of PLHIV and strengthening civil society

8 The Draft Gender Policy was resubmitted to the Cabinet in August 2012 and is
awaiting Cabinets approval.

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organisations to advocate for the necessary legal reforms ought to be given some degree of
priority.
There is also need for a deeper exploration of the linkages between the pre-existing stigma
attachedto the homosexual community and sex workers and HIV-related stigma and
discrimination in order to inform national policies and programmes.

6.0 Recommendations
1. Enact the Equality Opportunity (Amendment ) (No.2) Bill, 2011 and incorporate an
amendment to Section 39 of the Act to ensure that reports mandated by the section
are not published or open to public inspection except with the consent of the
complainant . Include sexual orientation as a prohibited ground of discrimination
in the Bill.
2. Ensure that the linkages between HIV-related stigma and discrimination and the
pre-existing stigma associated with MSM and sex workers are reflected in the Draft
National Strategic Plan on HIV/AIDS 2012-2016 and its Action Plan.
3. Proclaim the Data Protection Act, 2011.

6.0 Women and Girls

6.1 Findings of the 2009 Legislative Assessment
Summary of Issues
A 2001 Situational Analysis 9 that informed the NSP 2004-2008identified women and young
persons, including girls, as HIV-vulnerable populations in Trinidad and Tobago. Accelerating
9Health and Economic Unit, University of the West Indies, St Augustine.

20

rates of infection among females, particularly females in the younger age groups, supported this
finding. Furthermore, the NSP 2004-2008, based on the findings of the 2001 Situational
Analysis, identified increased incidence of violence among males and between men and
women and gender inequalities among poorer groups as two of the factors influencing the
HIV/AIDS situation in Trinidad and powerlessness among women to change cultural norms
around multiple partners and child rearing as a factor in respect of Tobago.
The 2009 Legislative Assessmentcontendedthatwomensand girls vulnerability to HIV
stemmedlargely from existing gender inequality in the society and gender norms aroundmale and
female sexuality. Manifestations ofgender inequality included gender-based violence, sexual
harassment and other forms ofworkplace discrimination, womens lack of access totheir sexual
and reproductive rights and differential experiences of poverty, primarily due
towomensdisproportionate responsibility for childcare. These factors were either directly or
indirectly linked to womens increased risk of infection.Sexual abuse, lack of access to their
sexual and reproductive rights, gendernorms aroundmale and female sexuality and economic
statusappeared tobe the primary factorslinked tothe vulnerability of girls.
It was further noted that the rights of womento economic opportunity, to non-discrimination, to
be free from violence and to sexual and reproductive health were organically linked and
consequently the erosion of one group of rights negatively impacted on other rights and had the
effect of increasing womens vulnerability to HIV. Thus, forexample, women in situations of
domestic violence usually had diminished access to their sexual and reproductive rights and their
economic rights. Lack of access to economic rights, in turn, rendered women less capable of
leaving a situation ofdomestic violence. UN Womensummed up the linkages between gender
inequality and womens increased risk of HIV infection asfollows:
Gender inequality is manifested in ways which directly or indirectly increase womens risk
of HIV infection. Unequal gender relations are both the root causes and consequences of
HIV/AIDS infections among women and men, with gender relations shaping sexual
behaviour, social attitudes, economic position, and degrees of empowerment and
vulnerability, and also being mediated by ethnicity and socio-economic class. Because
women and men are not homogeneous groups, wide variations in sexual culture and practice
are observable. Young women are the most vulnerable group across the region, and although mens

21

risk behaviour is greater than that of women, gender relations of power position women as the least
able to negotiate safety or security. Gender-based violence limits womens ability to demand safe
sexual practices and disclosing HIV status to partners and /or third parties may increase risk of
violence. Womens vulnerabilities are compounded across the region by a number of factors such as
age, class and ethnicity.10

6.1.1Domestic Violence
As highlighted in the 2009 Legislative Assessment, the intersection between domestic violence
and womens lack of access to their sexual and reproductive rights and hence increased risk of
HIV infection was well documented in the international body of gender and HIV
literature:women who fearedor experiencedviolence in the domestic setting also lackedthe power
to ask their partners to use condoms or to refuse unprotected sex. Fear of violence also prevented
women from testing and/or sharing their HIV status and accessing treatment. Domestic violence
further underminedwomens health, economic and other rights and rape and other forms of
forced penetrative sexual conduct in the domestic setting also put women and girls at direct risk
of HIV infection.
The 2009 Legislative Assessment further highlighted theunacceptably high levels of domestic
violence in Trinidad and Tobago. Thus, for example, the number of applications for protection
orders under the domestic violence legislation increased from 5042 in a 12-month reporting
period in 1998/1999 to 11,213 in an equivalent period in 2007 /2008.

11

However, whether the

increase was due to a greater willingness on the part of victims to use the courts as a site of
contestation or to actual increases in the levels of domestic violence was not clear. Police
statistics also revealedunacceptably high levels of domestic violence (See Table 1).The
overwhelming majority ofvictimscomprisedwomen and girls womentended to be the primary
10UN Women (2008).Building Responsive Policy: Gender, Sexual Culture, and
HIV/AIDS in the Caribbean.Project proposal. In collaboration with the Institute for
Gender and Development Studies, UWI, St Augustine, Stichting, UWIHARP, York
University and IDRC.
11 Annual Reports of the Judiciary of Trinidad and Tobago for the years given.

22

victims of physical abuse and threats of physical abusewhile girls were primarily victims
ofsexual abuse.It was also noted that the complexity of the issues around domestic violence
made it difficult to collect data establishing a clear link with HIV infection. However, given the
relatively highreported levels of this form of abuse in the society, it possibly constitutes a hidden
route to HIV transmission.

Adequacy of legislation addressing Domestic Violence: 2009 Legislative Assessment

It was the contention of the 2009 Legislative Assessmentthat despite the enactment of fairly
progressive domestic violence legislation in 1999, victims access to justice remained elusive.
Research studies on the first domestic violence statute which was enacted in 1991 revealed that
the majority of applications resulted in dismissals. For example, an early study of court records
for the period September 1991 (when the 1991 statute became operational) to June 1993 revealed
that of the 8,297 applications filed over that period, just 3,258 or 39 per cent resulted in
protection orders (Creque, 1995).
Lazarus-Blacks analysis of court records for the years 1997 -1998 of two Magistrates Courts in
Trinidad, namely, Pelau (a fictitious name given to one of the courts) and the Port of Spain
Magistrates Court revealed that close to 57 per cent and 71 per cent of the applications for
protection orders under the then 1991 Domestic Violence Act (repealed and replaced by the 1999
Act) were dismissed in Pelau and the Port of Spain Magistrates Court respectively. The
primary reason for dismissal was non-appearance, attributed both to factors related to the justice
system as well as factors extrinsic to the justice system. 12 No study has been carried out to
determine whether the pattern has continued under the 1999 statute.
The2009 Assessment also highlighted thefindings of a Committee appointed in 2003 by the then
Attorney General to prepare a domestic violence investigative and procedural manual for police
officers in Trinidad and Tobago (the Committee).13 The Committee examined the institutional

12Mindie Lazarus-Black, Everyday Harm: Domestic Violence, Court Rites, and

Cultures of Reconciliation (Urbano and Chicago: University of Illinois Press, 2007),
35-64.

23

factors that impacted on the implementation of the 1999 legislation and highlighted several
weaknesses as follows:

Lack of privacy and dignity in making applications.

Lack of information about the legal procedures pertaining to domestic violence.
Settling of the terms of the applicationby Clerks of the Peace who are e neither
legally trained nor operate in an environment suitable for obtaining all relevant
information. They also exercise the jurisdiction to grant an interim order contrary to

the Act.
Heavy reliance is placed on the police to serve the notice of proceedings with the

result that applications are adjourned regularly for lack of service.

Courts are not dedicated solely to hearing domestic violence applications with the

result that little priority is given to the hearing of these matters.

Attempts by magistrates to hear as many applicants as possible in the short time

available can compromise the proceedings.

The lack of social services in the court or its environs prevents immediate referrals by
magistrates.

The Committee made several recommendations to address these shortcomings as follows:

A Domestic Violence Unit, staffed by police officers trained in community policing

philosophy, should be established in each Police Division.

Training of police officers should be coordinated and intensified through the
establishment of a national/international conference on police training to be held once

annually and through ongoing training of police officers.

Medical evidence through a review of the present medical form and photographic

recording of injuries of the victim should be improved.

A coordinated approach to the management of shelters should be ensured.
Restrictions facing victims and their families should be removed and all staff should
be trained and protocols for the management of shelters grounded in an understanding

13Ad Hoc Committee Appointed by the Honourable Attorney General of Trinidad and
Tobago to Prepare a Domestic Violence Investigative and Procedural Manual for
Police Officers in Trinidad and Tobago.

24

of the cycle of violence, victim safety and confidentiality and respect for victims

should be developed.
Applications should be made in private through the designation of a special room

where interviews and the taking of the application should be conducted.

Brochures on procedures should be made widely available to members of the public.
This should include the application procedure, the powers of the magistrate and the

procedure to be followed upon breach of the order.

A specially trained person should assist the person making the application to avoid

dismissals on technicalities.
A magistrate should be available at all times to grant interim orders for emergency

situations.
Police officers from the Court and Process Department of the Police service should be
made available on a 24-hour basis to serve notice of proceedings and orders made by

the Court.
The magistrate should be notified of proof of service prior to the date of hearing.
Magistrates should receive training on the intent and content of the law, their powers

under the Act as well as the psychology of offender and victim.

In the absence of special courts in each magisterial district devoted to hearing
domestic violence applications, an administrative solution must be found to ensure
speedy and proper hearings and to avoid parties having to wait long periods to have

their cases called.

A person with legal training should be made available to provide legal assistance to
parties before the court. These officers should function under the Legal Aid and

Advisory Authority.
Adequate witness rooms and facilities for parties to confer with attorneys, police

officers and probation officers should be made available.

The Act should be reviewed regarding the reforms recommended for adoption by the

Committee.
Coordinating mechanisms, with particular reference to data collection, analysis and

dissemination should be established.

All major actors in the domestic violence response and intervention should be
sensitized to the Caribbean Association for Feminist Research and Action (CAFRA)
Training Manual on Domestic Violence.

25

The major gap between enactment of the Domestic Violence Act, 1999 and implementation was
identified by stakeholdersat the three consultations as a major weakness.

6.1.2 Sexual offences

The 2009 Legislative Assessment also noted that it was not possible to ascertain the actual
incidence and prevalence ofsexual offences since under-reporting was also a feature associated
with this form of abuse. There was also a dearth of research data on sexual violence in Trinidad
and Tobago. However, reported cases were still unacceptably high (Tables 2 and 3). Of major
concern was the fact that girls were the victims in the majority of reported cases. Again, while
data were not available to validate the linkages between sexual violence against girls and their
vulnerability to HIV, it was also likely to be a hidden route of transmission.Child sexual abuse
was also frequently a precursor to adolescent prostitution with its attendant HIV risk.
The issue of child marriages and the conflict with the age of consent to sexual activity (age 16)
was also highlighted. The ages of marriage for boys and girls are regulated under four different
statutes which permit, in some instances, marriage at ages below the age of consent to sexual
activity.

14

It was noted that an analysis of child marriages in Trinidad and Tobago needed to take

into account issues of capacity to consent, health risks, the power dynamics within such
marriages and the lack of protection normally accorded to an unmarried child.

Adequacy of legislation addressing sexual offences: 2009 Legislative Assessment

14 Under the Marriage Act, girls are permitted to marry at age 12 while boys can
marry at age 14. The Marriage Act applies to both Christian and civil marriages.
The Muslim Marriage and Divorce Act permits girls to marry at age 12 and boys at
age 16. The respective ages under the Hindu Marriage Act are 14 for girls and 18 for
boys. Under the Orisa Marriage Act, girls are permitted to marry at age 16 while
boys may marry at age 18

26

The 2009 Assessment noted that not only was the substantive criminal law the Sexual Offences
Act, 1986 deficient in many respects but that its implementation needed to be strengthened.
Conviction rates for sexual offences usually a measure of whether victims are accessing justice
-were appallingly low. It was not, however, possible to determine whether such low conviction
rates weredue to factors internal or external to the criminal justice system or both. Stakeholders
highlighted the need to strengthen the sexual offences legislation and to ensure its effective
implementation to more adequately protect women and girls against sexual abuse and
exploitation. Trafficking of women and children was singled out by stakeholders as a particularly
important issue in this regard.At the time of writing (of the 2009 Legislative Assessment), the
Children Bill 2009 was intended to fill some of the gaps pertaining to the protection of children
against sexual abuse and exploitation.

6.1.3 Access to sexual and reproductive rights

The 2009 Legislative Assessment highlighted the crucial connection between womens and girls
lack of autonomy over their sexual and reproductive health and vulnerability to HIV. The
intersection between violence against women and girls and access to their sexual and
reproductive rights, as noted earlier, was also discussed. Lack of access to economic resources
also frequently placed women and girls in a position where they could not enjoy these rights.
Women with meagre economic resources who were also in in situations of domestic violence
were perhaps even more vulnerable in that they were less able to leave situations of domestic
violence. Womens and girls economic vulnerability increased their dependence on male
partners as a source of income and limited their ability to make decisions regarding their sexual
and reproductive health. Women and girls also engaged in sex work in order to earn a livelihood
or entered into serial relationships as a means of economic support for their children increasing
their risk for HIV infection.
That young girls entered into relationships with older men for financial and other material
support was another area of concern and was viewed as a major risk factor for HIV infection. A

27

national KAPB study15found that a significant percentage of females in the 15-19 and the 20-24
age categories engaged in sex with male partners at least 10 or more years older in the 12 months
prior to the capture of the data and noted that this was an important factoraccounting for
thevulnerability of girls and young women. Sexual norms also prevented many women and girls
from negotiating safe sexwhether the sexual encounters were casual, boyfriend /girlfriend or
morelasting relationships. Such norms conferredsexual power and sexual decision making
onmen which weredifficult to displace. Girls in relationships with older men, particularly where
this was seen as a means of economic support, were particularly vulnerable.

The 2009 assessment also noted that work-family conflict contributed significantly to unequal
labour market opportunities for women. Although men were increasingly accepting caring
responsibilities, women were still seen as the primary carers of the family and the household and
their presence in the labour force had not diminished to any great extent their caring and
nurturing roles. Work and family remained gendered concepts and gave rise to workfamily
conflicts which had implications for gender equality and womens poverty. Women in the lower
income brackets were particularly vulnerable.

Adequacy of legislation on sexual and reproductive rights

The 2009 Assessment noted that while it was not possible for the law to change cultural norms, it
nevertheless created the enabling environment for the desired shifts to occur. The adequacy of the

legislative framework to address domestic violence in the context of womens access to sexual
and reproductive rights was extensively discussed in the 2009 Legislative Assessment and
summarised earlier in this report.
Having regard to womens poverty, while policy and structural measures were clearly needed to
deal with this issue there were nevertheless areas where the law was pivotal. For example, the
15 University of the West Indies, St Augustine ((2007). Baseline Survey of
Knowledge, Attitudes, Practices and Beliefs (KAPB) on HIV/AIDS of the National
Population 15-49 years old residing in Trinidad and Tobago.

28

gendered dimensions of female poverty were seen in applications for child support in the
Magistrates Courts. A study carried out in Trinidad which explored the linkages between child
support, poverty and gender equality found that the vast majority of child support applications
were made by single mothers who were either unemployed or earned low incomes. The study
made several recommendations for strengthening the child support legislation. 16Moreover, the
2009 Legislative Assessment noted that the Public Assistance programme administered under the
Public Assistance Act, Chap. 32:03 was seen by many women who had little access to economic
resources as offering an alternative pathway for child support and therefore some measure of
economic stability. Under the programme, a parent was entitled to receive financial assistance on
behalf of a child where the other parent had abandoned or deserted the child.Applicants,
primarily unemployed or in the low income bracket, were nevertheless first required to pursue
court ordered child support before qualifying for public assistance, a requirement that was
onerous and confined to applicants in that category only.
The 2009 Legislative Assessment also highlighted the provisions under the Offences Against the
Person Act Chap. 11:08 (sections 56 and57) that criminalised abortion and noted the reluctance
of past and present governments to liberalise the abortion laws largely because of perceived
conflicts with dominant religious ideology. In contrast, Barbados, Guyana, St Lucia, St Vincent
and the Grenadines and Belize had liberalised their abortion laws.
.

6.1.4 Non discrimination

Anecdotal evidence from stakeholders suggested that women were discriminated against in the
workplaceand thatsexual harassment was also serious issue.However, no
informationwasavailable to analysethe precise situation of women as regards discrimination on
the basis of sex.
Adequacy of the legislation: 2009 Legislative Assessment

16 UNIFEM: Child Support, Poverty and Gender Equality in Trinidad and Tobago:
Trinidad and Tobago Country Report. (UNIFEM Caribbean, 2008).

29

The 2009 Legislative Assessment noted that the Constitution prohibited discrimination on the
basis of sex, but such protection was limited by the state action doctrine. Constitutional remedies
also tended to be elusive because of the complexity and cost of these actions, and not
unsurprisingly, very few women turned to the Constitution for protection. Remedies were also
available under the Judicial Review Act Chap.7:08 but again these were limited. Remedies under
the Industrial Relations Act Chap. 88:01were limited to harsh or oppressive dismissal or
dismissal not in accordance with good industrial relations principles.
It was noted, however, that the Equal Opportunity Act, 2000, prohibited discrimination on the
basis of sex and significantly strengthened the legal framework for addressing discrimination in
the public and private sectors. In 2008, it became possible to lodge complaints with the Equal
Opportunity Commission for the first time. At the time, the Equal Opportunity Tribunal had not
yet been established.
The 2009 Legislative Assessment highlighted the absence of legislation to deal with sexual
harassment. This was also seen as a major gap by the Committee on the Elimination of
Discrimination Against Women which, in its concluding observations following consideration of
the Combined Initial, Second and Third Report of the Republic of Trinidad and Tobago
recommended that sexual harassment in the workplace, including in the private sector, should be
penalized. The Equal Opportunity Act does not expressly prohibit sexual harassment but it is
well recognised that discrimination of the basis of sex included sexual harassment and hopefully
the Equal Opportunity Commission will accept complaints of sexual harassment as constituting
acts of discrimination on the ground of sex. It was also noted that criminal or civil remedies were
also available where the sexual harassment constituted an assault but these were again not easily
accessible or even appropriate.
There was also no legislation guaranteeing equal pay for work of equal value. The principle of
equal pay for work of equal value is reflected in the ILO Equal Remuneration Convention ,1951
( No. 100) as well as other ILO Conventions and Recommendations, the International Covenant
on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of
Discrimination against Women. It is also enshrined in the Universal Declaration on Human
Rights. However, the debate on this issue appeared to have fallen off the radar screen altogether.
30

Recommendations (2009 Legislative Assessment)

1. The Draft National Gender Policy should be implemented. The policy proposes a range of
legislative and other reforms for the elimination of gender discrimination and for achieving
gender equality and equity. Priorities should include the following:
(i) The Equal Opportunity Act 2000 should be amended to include provisions expressly
prohibiting sexual harassment.
(ii) Legislation guaranteeing equal pay for work of equal value should be enacted.
*(iii) The Sexual Offences Act Chap.11:28 should be reviewed with a view to (i) enacting
more comprehensive provisions to deal with trafficking of women (ii) abolishing the rule
requiring corroboration (iii) redefining the offence of incest to apply to relatives or other
persons living in a household.
*(iv) Measures should be put in place for monitoring the implementation of the domestic
violence and sexual offences legislation. Adequate victim support services such as
psycho-social support and alternative accommodation should also be provided. Safe
spaces (with adequate support) at police stations should be established for taking reports
of victims of sexual offences.
(v) The Public Assistance Act Chap. 32:03 should be reviewed with a view to abolishing
the requirement that financial assistance for a child be conditional upon a maintenance
application in cases where a parent has abandoned or deserted the child.
(vi) TheMaternity Protection Act 45:57 should be reviewed with a view to removing the
restriction on paid maternity leave. A national policy on work-family conflict should also
be developed and implemented.
2.The common law position regarding the minimum age for marriage should be abolished and
replaced by a single minimum age of marriage.
31

*These recommendations are in keeping with the recommendations made at the Stakeholders
Consultations.

7.1 Current Assessment

7.2 Summary of issues
While the epidemiological data suggest that the rate ofincrease of HIV infection among females
as a whole has slowed as evidenced by the decreasing male to female ratio - 1:2between 2000
and 2005to 1:1 in 2006 and 1:1.1 in 2008 and 2009,17 the incidence of HIV infection among
females still surpasses that for males. Stakeholders interviewed for the current study felt
thatwomen and girls remained vulnerable to HIV infection due to the persistence of gender
inequality and social constructs ofmale and female sexuality which placed women and girls in
situations of vulnerability. As to the larger proportion of female cases, the Draft National
Strategic Plan (2012-2016)contendsthat this is most likely due to greater HIV testing among
females compared to males and that it is likely that significantly more men than the recorded
number are infected but are unaware of their status and are not accessing services.18
As noted in the 2009 Legislative Assessment, gender inequality and gender roles increase the
vulnerability of women and girls to HIV infection.Indeed, theCaribbean Regional Strategic
Framework on HIV/AIDS ( CRSF 2008-2012) notesthat one of the lessons learned following the
implementation of the first CRSF (2004- 2008) was the need for HIV programmes to take
account of the factors that contribute to HIV vulnerability across the Caribbean, particularly
those related to gender andpoverty. Moreover, one of the strategic objectives of the CRSF 200817 Cited in the Draft Five-Tear National HIV and AIDS Strategic Plan, October2011September 2016: Office of the Prime Minister, Republic of Trinidad and Tobago, at
pages 22-23.
18 At page 22.

32

2012 is the development of policies, programmes, and legislation that promote human rights,
including gender equality, and the reduction of socio-cultural barriers in order to achieve
universal access. 19PANCAPs Regional Policy on HIV Related Stigma and Discrimination
(2011)also notes as follows:
The Caribbean has a mixture of generalized and concentrated epidemics. Women account
for approximately half of all infections in the Caribbean. HIV prevalence is especially
elevated among adolescent and young women, who tend to have infection rates significantly higher
than males their own age.20

Key stakeholders interviewed for the current update were of the view that, notwithstanding the
recognition of the importance of gender to HIV spread, the response did not sufficiently
incorporate a gender perspective. The NSP 2004-2008 identified gender inequality and gender
norms as factors influencing the spread of theHIV but programmatic action to address the gender
issuesthat rendered women and girls vulnerable was not included. Similarly, theDraft NSP 20122016, while acknowledging that gender inequity is a factor underlying the epidemic in Trinidad
and Tobago, does not reflect the structural and policyresponses that are crucial for addressing
gender inequality and inequity. the national response mustnevertheless reflect quite clearly
theimportance of gender equalityand gender norms to the spread of HIV and identify the
mechanismsand key agencies for addressing these issues. Gender relations shape sexual
behaviour, social attitudes, economic position, and degrees of empowerment and
vulnerabilityand this understanding must be reflected in a comprehensive, expanded national
response.Stakeholders interviewed were also of the view that the many gender issues identified
in the 2009Legislative Assessmentthat contributed to the vulnerability of women and girls to
HIV remainrelevant. These include gender-based violence, lack of access to economic resources,
19Op. cit. Fn.18.
20Available at : http://docs.google.com/viewer?a=v&q=cache:0Md4MK1hSkJ:www.pancap.org/docs/Final%2520Policy%2520on%2520Stigma%2520and
%2520Discrimination.pdf+REGIONAL+POLICY+ON+HIV+RELATED+STIGMA+AND+
DISCRIMINATION&hl=en&pid=bl&srcid=ADGEESjI7uJ3i4m_cbw2gM6fDpmSpVmrhed
FQIlMqVIEvQCi0LDpibZkIMq3HQNU-fFgKXUDP0ePK8sgZ9C8BNG7O6oAC8YccgO9krq4LewEmTTbwhEv9uKxfnXTmplCSn08j8aaVH&sig=AHIEtbTqkdHqTQsSMZXWLei9VgNsFkyg3

33

lack of access to their sexual and reproductive rights and a disproportionate responsibility for
child care.

7.2.1 Domestic Violence

Quantitative studies to ascertain theincidence and prevalence of domestic violence in Trinidad
and Tobagostill have notbeen carried out. Stakeholders interviewed for the present assessment
were of the view, however,that the levels of this form of abuse remainedunacceptably high
andcontinued to be a hidden route of HIVtransmission, both directly and indirectly.The statistics
presented in Table 1 reveal high levels of reports for assault by beating and threats, offences
typically associated with assault at the hands of an intimate partner. The statistics, however, may
not represent the true picture given the high degree of under-reporting typically associated with
domestic abuse.The linkages between domestic violence and womens access to their sexual and
reproductive rights and economic rights and hence their vulnerability to HIV havebeen noted
previously.

Table 1
Domestic violence reports to the police for the years 2000 -2002 and 2004 to 2009: Trinidad and
Tobago
OFFENCES

Murder/Homicid

+2000

+2001

+2002

*200

*200

*2006

*200

*200

*200

24

17

17

18

26

33

18

37

23

Sexual Abuse

92

37

24

25

53

43

42

67

64

Wounding

48

42

37

29

12

34

61

38

Assault by

775

904

560

470

491

421

545

859

568

es

beating

34

Malicious

10

18

24

26

Threats

214

217

133

245

379

498

437

422

405

Verbal Abuse

94

60

91

60

18

15

Emotional/

59

61

55

49

33

25

Financial Abuse

12

Child Abuse and

25

28

31

16

28

30

26

19

13

72

83

127

1330

1394

957

972

1058

1066

1171

1556

1256

Damage

Psychological
Abuse

Abandonment
Breach of
Protection Order
TOTAL

Source: *Crime and Problem Analysis Branch of the Trinidad and Tobago Police Service (Provisional data).
+Modus Operandi Records Bureau of the Trinidad and Tobago Police Service (Provisional Data), now the Crime
and Problem Analysis Branch, as published in the Annual Report (2001-2002) of the Judiciary of the Republic of
Trinidad and Tobago.

7.2.2 Sexual Violence

There continues to be a dearth of research on sexual abuse against women and girls in Trinidad
and Tobago. Police statistics, nevertheless, reveal a relatively high level of reported cases, with
the vast majority of victims being girls under 18 years. This is cause for concern sinceunderreporting, like domestic violence abuse, is a feature of sexual abuse (Tables 2 and 3).Again, as
noted, while empirical evidence is not available, sexual violence against women and girls is
likely to represent a hidden route of HIV transmission.

35

Table 2
Sexual Offences committed against persons 18 years and under for the period 2002- 2011:
Trinidad and Tobago

Age Range
Years

18 and Under

13 - 16

under 13

Female

Male

Female

Male

Female

Male

2002

370

281

57

2003

310

221

56

2004

227

173

58

2005

395

284

68

2006

650

497

100

2007

568

13

420

90

2008
2009

434

309

77

503

13

631

10

74

500

11

365

81

458
4415

23
90

344
3525

13
43

80
741

8
42

2010

2011
Total

Source: Crime and Problem Analysis of the Trinidad and Tobago Police Service.

36

Note: The figures reflect the number of offences committed and not persons. Since there will be offences involving
the same individual.

Table 3
Reports of sexual offences to the police and cases solved for the years 2003-2009: Trinidad
and Tobago.

SI
Yea

Rape

r
R/S

Per

Ince

cen

st

t
R/S

Grievo
us

Solv

Sexual

ed

Assault

SI

with
%
Sol
ve
d

femal

SI

with
%

femal

Seriou

with
%t

Adopt

s
%

Sol

Solv

ed

Solv

under

ved

betwe

ed

Minor

ed

en

etc

R/S

14-16

R/S

ed

ncy
R/S

R/S
Sol

Solv
Indece

e
14

ved
R/S
200

317/1

77

200

305/1

71

200

334/1

58

200

259/1

10

200

301/1

28

200

236/1

00

200

231/1

71

56

55/5

100

80/74

94

76/67

67

107/8

81

6/6

100

50/39

78

56

10/9

90

60/46

77

87/68

78

97/81

84

3/3

100

41/22

54

47

53/4

92

65/41

63

157/1

83

76/65

86

6/6

100

25/20

80

85

180/1

86

6/5

83

43/32

74

74

0/0

37/26

70

71

5/4

80

28/18

64

60

3/3

100

17/10

59

9
42

43/3

31
86

7
43

42/3

145/11

77

1
79

112/83

26
74

3
42

60/5

265/2

139/1

54
79

151/1

10
88

130/93

72

94/83

11
88

3
74

64/5

111/7
9

81

98/47

48

84/54

64

159/9

37

Source: Crime and Problem Analysis Branch of the Trinidad and Tobago Police Service. (Provisional data).
Key: R/S Reported/Solved
Note: Solved refers to cases where charges have been laid.

7.2.3 Trafficking
Stakeholders at the consultations held for the preparationof the 2009 Legislative Assessmentfelt
that trafficking of women and girls was an important issue that needed to be urgently addressed
and there continues to be a general perception that this is a serious problem in this jurisdiction.
At the time of the2009 study, no empirical evidence tosupport this contention was available and
this remains the case. Specific trafficking legislation was nevertheless enacted in 2011.

7.2.4 Reproductive and sexual rights

According to stakeholders interviewed for the present assessment, lack of autonomy over sexual
and reproductive decision making continues to be an important factor contributing to womens
and girls vulnerability to HIV. Several factors prevent womens and girls access to their sexual
and reproductive rights. Cultural constructs that determine that sexual decision-making should
reside with the male act as a powerful deterrent to safe-sex demands on the part of
females.Women and girls generally do not feel empowered to insist on safe sex practices even
with the knowledge that they may be at a real risk of HIV- and this may be further complicated
by factors of trust. Women may also risk violence if they insist on safe-sex practices. Their
access to sexual and reproductive rights is further compromised in situations of domestic
violence and, as previously noted, women with little or no access to economic resources have
fewer options of leaving a violent relationship. Women living in poverty may also expose
themselves to greater risks of infection by entering into serial relationships or engaging in sex
work in order to support their families.
It needs to be stressed, however, that education, by itself, is not an effective tool of
empowerment since structural changes are also needed in order to allow women and girls to
38

enjoy their sexual and reproductive rights. The law, as noted, also cannot bring about the
necessary cultural shifts but can create the enabling environment for such shifts to occur. In this
regard, the law can provide remedies for domestic and sexual violence and sex discrimination in
the workplace, including sexual harassment. The law can also ensure that alternative economic
pathways such as child support and public assistance are adequate and accessible. Moreover,
notwithstanding the illegality of prostitution the law can also safeguard the rights of sex
workers against violent abuse. The law can also ensure that young people can independently
access HIV testing.

7.3 Existing / Proposed Legislation

Legislative progress with respect to increasing the protection of women and girls against human
rights violations that render these populations vulnerable to HIV has been slow. Many of the
recommendations of the 2009 Legislative Assessment pertaining to women and girls have not
been given effect. Effective implementationof existing legislation,a major gap identified in the
2009Legislative Assessment,continues to be a challengeand research and adequate data
collectionforguiding effective implementationare still lacking. The Draft Gender Policywhich
highlights the crucial linkages between gender and HIV has been receiving renewed attention
with a view to its acceptance. It will, hopefully, act as a catalyst for thelegislative and policy
changes that are necessary to ensure that women and girls are adequately protected in the law
against discrimination and other forms of human rights violations.Gender also needs to be fully
integrated in theNational HIV response and the necessary linkages forged between the agencies
with responsibility for gender and those responsible for the National HIV response.However,
thus far, the national response does not appear to have addressed the issue of domestic violence
and its impact on womens vulnerability as part of its comprehensive and expanded response.

Gender- Based Violence

Domestic Violence Act, 1999
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A large gap remains between the enactment of this statute and its implementation. Although
applications for the injunctive remedy (protection order) granted under the Act have steadily
increased over the years, relatively few are granted. Recommendations for bridging this gap,
made by the Committee appointed in 2003 by the then Attorney General to prepare a domestic
violence investigative and procedural manual for police officers in Trinidad and Tobago, outlined
earlier, have not been implemented. Research to monitor womens access to justice under the Act
is still lacking and the official statistics are woefully inadequate.
Offences Against the Person Act, Chap.11:08 and the Summary Offences Act, Chap. 11:02
These statutes make provision for criminal offences involving physical violence orthreats of such
violence.While Table 1 reveals that a significant number of police reports of wounding, assault
by beating, malicious damage and threats which constitute offences under one or the other of
these two statutes, there is no information onthe proportion of such cases that reach the courts
nor is there information on conviction rates. Thus, it is not clear whether women and children
who are victims ofphysical acts of domestic violence are accessing justice under these statutes
and if they are not, what are the factors that account for this. Very little attention has been given
to this issue and the need for research to enable whether women are accessing justice remains
urgent.

Sexual Offences Act, Chap. 11:28

This is the primary piece of legislation dealing with sexual offences. The 2009Assessment
identified severaldeficiencies of this statute, particularly with respect to the protectionof children,
including girls. While both boys and girlsare victims of sexual offences, as revealed in Table 2,
girls tend to be the overwhelming majority victims.
40

The conviction rates for sexual offences remain appallingly low suggesting that victims continue
to have very little access to justice. There are still no mechanisms in place for monitoring the
implementation of the sexual offences legislation and lengthy delays which act as a deterrent to
the reporting of sexual offences are still a feature of the criminal justice system. AVictim and
Witness Support Unit within the Police Service, established in 2008,hasneverthelessbeen placing
some emphasis on child sexual abuse victims. Stakeholders interviewed for this study, as did the
stakeholders at the three consultations conducted for the 2009 Legislative Assessment,
againhighlighted the need for strengthening the legislation to more adequately protect children
and for more effective implementation. In this context, lack of adherence to the mandatory
reporting requirement under the Sexual Offences Act was also highlighted. It was pointed out
that many persons were not awareof the provision. Further, protocols have not been developed to
ensure its effective implementation.

Children Act, 2012

The 2009 Legislative Assessment noted the existence of a then Children Bill 2009 which was
intended to repeal and replace the existing Children Act, Chap. 46:01. The Bill has since been
revised and passed in both Houses of Parliament and is now the Children Act, 2012. The 2012
Act, which proposes to strengthen the protection of childrenagainst sexual abuse,pornography
and prostitution, is currently awaiting proclamation. Crucial aspects of the Actwill be dependent
on the operationalization of the Childrens Authority Act, Chap. 46:10 and the
ChildrensCommunity Residences, Foster Homes and Nursery Act, 2000. The Childrens
Authority Act remains partially proclaimed while the Childrens Community Residences, Foster
Homes and Nursery Act, assented to in October 2000,has not yet been proclaimed.

Trafficking in Persons Act, 2011

Legislation to address trafficking in persons- the Trafficking in Persons Act-wasenacted in 2011.
The object of the Act is to protect and assist victims of trafficking, facilitate the efficient
41

investigation of cases of trafficking in persons,facilitate the prosecution of individuals and

organizations involved in trafficking in persons and promote cooperation between Trinidad and
Tobago and other States in order to prevent and suppress trafficking in persons and to punish
offenders.It gives effect to the United Nations Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children. To this end, the Actmakes provision for
the establishment of a National Task Force to Counter Trafficking in Persons in Trinidad and
Tobago and a Counter-Trafficking Unit within the ministry responsible for national security. The
Act is awaiting proclamation and is therefore not yet in force.

Equal Opportunity Act, Chap. 22:03 (Act 69 of 2000)

The Equal Opportunity Commission,established under the Equal Opportunity Act, began hearing
complaints in 2008. However, it is not clear how manysex discrimination complaints, including
sexual harassment complaints, have been lodged with the Commission. The Equal Opportunity
Tribunal is now however hearing complaints which means that an aggrieved person can access
the remedies under the Act where conciliation, as authorized by the Commission, is
unsuccessfulor wherethe Commission has determined that the mattercannot be resolved by
conciliation.
Public Assistance Act, Chap. 32:03
TheAct has not been amended to remove the requirement that women seeking public assistance
on behalf of their childrenwhere the father has deserted or abandoned must first pursue courtordered maintenance. As discussed in the 2009 Legislative Assessment, women who viewed this
as an alternative economic pathway to child support(whichtended to be elusive in the majority of
cases) found this requirement to be onerous and posed an obstacleto pursuing public assistance
on behalf of their children. The evidence suggests that women who apply for public assistance in
these circumstances generally have little or no access toeconomic resources.
Ages for Marriage

42

Past attempts by successive governments to get consensus around a single minimum age for
marriage that does not violate the principles of the Convention on the Rights of the Child and
that can be reconciled with the age of consent to sexual activity (currently age 16) have been
unsuccessful. The issue has once again resurfaced and over the past year or so various
consultations spearheaded by the Ministry of Gender, Youth and Child Development, the
Institute of Gender and Development Studies at the University of the West Indies, St Augustine
and the Hindu Womens Organisation respectively - have been held with faith- based
organisations and members of the public in an attempt to arrive at a consensus position. No
consensus has been reached thus far.
HIV Testing
Consent by a minor to HIV testing continues to be governed by the common law which
maintains that a minor cannot consent to his or her own medical treatment, and this includes HIV
testing. The 2009 National HIV Testing and Counselling Policy supports a position whereby
children over 14 should be able to consent under specific circumstances. The 2009 Legislative
Assessment further recommended legal reforms to allow minors to consent to medical treatment
in clearly defined circumstances. However, legislation to allow minors to consent to HIV testing
or to medical treatment, as recommended, has not been introduced.

Recommendations
1. Ensure adequate implementation of the domestic violence and sexual offences
legislation.
2. Review the Sexual Offences Act with a view to ensuring that the substantive law
adequately protects women.
3. Abolish the requirement under the Public Assistance Act Chap. 32:03 that financial
assistance for a child should be conditional upon a maintenance application in cases
where a parent has abandoned or deserted the child.
43

4. Institute a single minimum age of marriage under the Marriage Act, Chap. (13 of
1923) that does not conflict with the principles of the Convention on the Rights of
the Child and that closes the gap between the age of consent to sexual activity and
the present low permissible ages for marriage.
5. Introduce reforms to permit a minor 14 years and over to consent to medical
treatment without the consent of a parent or guardian provided that the health care
provider is satisfied that :
-the minor fully understands the nature of the treatment proposed;
- that the parent or guardian is unavailable or has shown insufficient interest and/or
attention to the childs illness or other medical condition;
-after counselling the minor about involving the parent or guardian, that the minor
will not accept treatment and is likely to default from care if the parent or guardian
is made aware of their condition or treatment; and
- that it is in the best interests of the minor to be treated without the consent
OR Alternatively,
A minor 16 years and over should be able to consent to medical care and treatment
without the consent of a parent or guardian.
(ii) A minor between the ages of 14 and 16 should be allowed to access medical care
and treatment without the consent of a parent or guardian provided that the health
care professional is satisfied that-the minor fully understands the nature of the treatment proposed;
-that the parent or guardian is unavailable or has shown insufficient interest and/or
attention to the childs illness or other medical condition;

44

-after counselling the minor about involving the parent or guardian, that the minor
will not accept treatment and is likely to default from care if the parent or guardian
is made aware of their condition or treatment; and
that it is in the best interests of the minor to be treated without the consent of a
parent or guardian.

Appendix
List of persons interviewed or with whom discussions were held

Andrew Fearon - Former Deputy Technical Director of the National Aids Co-ordinating
Committee (NACC)

45

Anderson Figuera- Voice of One

Izola Garcia UNAIDS Country Coordinator, Port of Spain, Trinidad and Tobago
Nicholas Granger - MSM+
Natasha Hosein- Ali Women Advocating for Change
Wayne Jackman Activities Coordinator, Community Action Resource (CARe)
Beverly King- South Aid Support
Donna Da Costa- Martinez Executive Director, Family Planning Association of Trinidad and
Tobago
Dylis McDonald- Caribbean HIV/AIDS Alliance, Port of Spain, Trinidad and Tobago
Colin Robinson - Coalition Advocating for Inclusion of Sexual Orientation (CAISO)
Yolanda Simon Regional Coordinator, Caribbean Regional Network of People Living with
HIV/AIDS (CRN+)
David Soomarie Coordinator, Programmes and Services, Community Action Resource (CARe)
Simone Francis Whitaker - HIV/AIDS Sustainability Centre, Ministry of Labour and Small
and Micro Enterprise Development, Trinidad and Tobago

46

47