CONFLICT MANAGEMENT- The Key to Jamaica’s Violent crime problem

by: Kymberli Whittaker

Conflict occurs daily. As individuals with distinct personalities, thought processes, mannerisms and desires, interact with persons different from themselves. it is understandable how conflict arises but how we choose to manage disputes however may be the difference between life and death, and has a direct correlation on our crime rate.

Jamaicans simply do not like to talk and reason, especially our men. It is an accepted saying that “wi head hot” or “when wi vex, wi ignorant”, and when we are in this state essentially anything can happen to the person at the receiving end of our wrath, but this simply cannot continue to be the case.

There has been some push over the years to encourage conflict management within our educational institutions with the utilization of Guidance counselors, peer counselors and mediation offered through the Dispute Resolution Foundation. However those at a high risk of committing violent crime are not in school.  Many are school drop outs who tend to live in inner-city areas with scarce resources and they have nothing constructive to do for the most part with the 24 hours that pass each day.

These disenfranchised persons are so angry- angry at not having enough to  eat, angry at not being able to find a job, if they seek one, that can cover all their expenses, and angry at persons in our authority who seem not to care about their welfare.

When the larger society sees a man kill another man for stepping on his “Jordans” on “Clarkes”, we look in dismay and awe and ask why. But to the man who saved for months to own only that pair of shoes, cleaned it to go to an event to floss, gain the attention of girls, or sometimes even borrowed the shoes to party and be a king for a night to escape his dismal reality, this accidental act of messing up his shoes is seen as one thing only- a “diss” or violation that the other person has to pay for- even with his life.

It is astounding how many criminals cannot read and write in a functional manner. Reasoning abilities are heightened through educational stimulation which many of them lack. To aggravate this situation is the fact that the gun in or society is a symbol of power, and this power placed in the hands of persons with poor reasoning skills is a recipe for disaster. Many of these persons also have nothing living for, and as such they do not fear death, but see it as a way of life. At least one person is shot in downtown per day. Yet the same persons directly affected by violence still choose to fight fire with fire, thus perpetuating this vicious cycle.

In order to fight this violent crime wave sweeping our nation, the disenfranchised need see their life as having value, and school dropouts especially need to be targeted through social initiatives, to let them know that there is hope. Job creation, remedial school enrollment and functional literacy are the preventative initiatives which have to be vigorously pursued by our government.  We also need to drive home to our men that it is ok to talk, as without these changes in our hot spots conflict will continue, and crime will not decrease.

August 20, 2015

Self Interest vs Nationalism- The Real Issue behind the Opposition to the DNA Act in Jamaica

While still a teenager years ago, I remember the furor about the protection of a person’s rights and the surprising opposition against the proposed DNA Evidence Act. Being exposed to television shows such as Law and Order where it appeared to be standard practice for DNA evidence to be used to aid in determining an accused’s person’s guilt, I was a bit confused and taken aback at the debate which ensued. Cognizant of Jamaica’s high crime rate and the perceived inability of the State in controlling and reducing crime, the most natural question I asked was “Why is DNA evidence so bad?”

Mulling over the issue back then, I queried whether the Law Makers had something to gain, as so many esteemed politicians were trained Defense lawyers. I pushed that thought out of my mind as I could not fathom that self interst could trump Nationalism. I questioned and received no answers.

The argument that DNA evidence trumps privacy and should not be utilized is flawed. If that is the case for opposition then fingerprint evidence is equally as invasive and should not be collected. The presumption is that an accused person is “innocent until proven guilty”, however that is not an absolute presumption as seen with how the court treats with bail applications, rejecting bail for some offences punishable by imprisonment based on how high-risk the person appears to be. Whether that person will come back to court at the next hearing, interfere with witnesses, or very importantly what the offence is that the person is charged with- Rape and Murder, as one can imagine is not taken lightly.

Our laws were fashioned off the UK and many of their cases are used as leading precedents by lawyers that argue their case before the courts to try and persuade guilt. Their laws have been amended to reflect developments in technology and crime fighting strategies while ours have remained static, contributing to the stagnation of our court system as more crimes are commited in Jamaica, through no fear of repercussions as our criminals simply do not fear ore respect the Justice system.

An accused person is not forced by law to assist the prosecution in furtherance of his right to not incriminate himself, however DNA is a test which assists in the process of non-incrimination of a person who is not guilty. If you do the crime, it should follow logically that you do the time. Using loopholes of the Justice system to facilitate criminal behavior has become a feature of the said system which aids in hindering our development and crime reduction. Is the real aim of the system to get justice for those wronged whether it be the accused or a victim?

The Prosecution has the full responsibility of proving the guilt of the accused, and should do so within a framework which seeks to protect the innocent. The Constitution is not to be used as a mechanism to violate human rights but to protect those rights. So those who actually make a choice, and act on that choice to do something illegal and violate another person’s human rights should not be allowed to slip through the cracks.

There is an issue with witnesses due to our “informer fi dead” mentality so many persons get off Scot free after suffering minor conveniences of jail time before being granted bail, DNA however is irrefutable. Concerns regarding corruption and misuse of DNA evidence by Police or the State need to be addressed. A chain of custody for this evidence needs to be adhered to, so that if there is a break in the chain, the offender can be found and the law can deal with them swiftly. This means that harsh enforceable penalties need to be put in place for persons who collect and handle the DNA, and there should always be an atmosphere of transparency for both the prosecution and Defense.

The DNA bank thus needs to operate at International standards so that samples cannot be compromised and security needs to be on point. There has always been a concern of planting evidence at a seen, this is a real issue which needs to be addressed, as corrupt police officers on different occasions seek to get an “easy” conviction. Perhaps the use of body cameras by Crime Scene investigators needs to become standard practice and evidence not captured immediately on footage cannot be admissible. Maybe I am reaching with my suggestions, but I believe that every problem has a solution, and the use of DNA evidence after so many years of opposition should finally be allowed and embraced in the pursuit of justice for all- both the victim and also importantly the accused. There have been so many situations where persons have been saved from years of confinement due to DNA evidence. If our aim is to protect the guilty who can afford to pay for a good Defence lawyer, then the DNA Act is counterproductive, but if the aim is for true Justice then there should be no problem with it.

JLP vs PNP- This “little” issue of a referendum

A referendum was held in Jamaica  on 19 September 1961. Voters were asked "Should Jamaica remain in the Federation of the West Indies?" The result was 54.1% voting "no", resulting in the country leaving the federation and its dissolution in 1962. Voter turnout was 61.5%.

Let us place this discussion in context. Back in 1961, Bustamante opposed Federation as it appeared that T&T had too much leverage and Jamaica would be better off becoming Independent. Well we all know the result, that is why we became independent in 1962, even though Jamaica's first elections was held on December 12, 1944.  Federation failed then as the Caribbean nations were not on the same page, however Regional Integration is not to be dismissed because of the state of affairs then, which does not necessarily exist now. Fast-forward 54 years and our Opposition Leader is boasting that he is  “a Nationalist….who does not come from the school of those who chase after a fleeting and elusive dream called Integration.”

How bad really is integration, whether it be purely economic? The European Union, The North American Free Trade Agreement, Association of SouthEast Asian Nations, The North American Free Trade Agreement, Union of South American Nations are some examples currently in place.

We are too small to survive on our own and collaboration with like-minded states in the same geographical vicinity has the potential to strengthen our economic voice and position in the free world. Opportunities exist not only in the English-Speaking Caribbean but in our neighbouring Spanish, French and Dutch counterparts, whose market we are unable to penetrate thus contributing to the limiting of our growth and reach.

But I digress, so focusing  on the bone of contention currently is the Caribbean Court of Justice vs Privy Council as our final Court of Appeal, there is a lot of hulla-balloo whether a Referendum should be put to the pople. Reference is made to a covert agenda, and I am curious to know what then is the opposition’s agenda, as I am of the view that both sides need to come together and not push a partisan agenda just because one’s predeccesors promulgated a particular viewpoint. Times have changed, our ecomonic standing has changed, Jamaica needs a savior. That savior is not IMF, the people who are in positions of power need to think and act rationally and put the people first.

Should a referendum be put to the people? The PNP is not for it, and I wouldn’t expect them to be, in light of the last referendum where our past Premier Norman Manley stepped down after losing the not-so- long-after called elections. I believe they are wary of this precedent especially since we are so far into the election term and everyone on both sides of the fence are on their “P’s and Q’s” trying to solidify party votes.

The JLP on the other hand through a statement of their leader has trivialized the issue and has said that if it is to be considered, it should be put to the people. I wholeheartedly agree with putting it to the people but not the trivialization of the issue. A public-education campaign is not bad , educating the populace on the issues so that they can make an informed decision. But announcing a Grand Referendum is ludicrous if that step is not taken. The voters will simply vote along party lines, and we all know that the voter turnout which will not be representative of the true population, nor will it reflect the true wishes of the people.

To “referend” or not to “referend” is the question

Informer Culture is Stifling Jamaica’s Development

by: Kymberli Whittaker

Date: May 15, 2015

On any day, it is highly probable that you interact with several persons who have been accused of a crime, but will never be convicted of it. The person you give way to cross in front of you while driving, the person with whom you conduct business with, buy goods from, parents of children your own kids socialize with, the man/woman across the street. You cannot look at someone and tell if they have committed a crime, there is no “look” that a criminal possesses. Guilty persons are walking around free or on bail who may have actually done the act, but because the person’s in the know refuse to speak out, true justice will never be served.

Show me one country without crime, I bet you can find none, yet Jamaica is seen worldwide as being the murder capital of the world by many. Jamaica, self-proclaimed, top tourism destination has fallen nine spots to rank 76 out of 141 countries in the Global Travel & Tourism Competitiveness Report 2015. Jamaica has so much to offer to visitors and we have the potential to earn millions from this industry, however the fear of crime is crippling our image. The persons who call Jamaica home, there are different ways of coping with our high crime rate while trying to conduct businesses, raise families or generally to maintain a livelihood. Some people have given up on staying abreast of current affairs or news which serves of a stark reminder of reality. Others barricade themselves where possible within comfortable or luxurious town homes or residences which can rival any “5 star” hotel, while consuming media from our foreign neighbours.

It seems as if there is some disconnect from Jamaica’s Reality, as crime seems to be an alien concept unless one is directly affected by it. In a year there may be a few campaigns by different groups pleading for justice, and a few walks and marches as people stand in “solidarity” against crime, most currently the no-tolerance policy against child abuse as stories have emerged of young girls either losing their lives or becoming impregnated at the hands of older men, whether family members or strangers. While participation is good however in opposing crime via presenting a unified front, this is not enough and the reasons many crimes cannot be solved is because of pure talk and no action, and when put to the test there is no talk where it counts- at the police station or in the court room.

From ever since we’ve heard the phrase “informer mus dead!!” But that mentality cannot prevail as we complain about the high crime rate and bemoan the reduced opportunities for advancement in Jamaica.  Criminals are elevated and protected through silence to continue to perpetuate injustices against the massive. Statistics from the Office of the Children’s Registry indicate that reporting of crimes against children has risen, but even after a crime is reported, there must be follow-up. The complainants themselves may choose not to follow-up and eventually the case may be eventually thrown out. The witnesses to crimes flat out refuse to speak out, because of fear of telling the truth and also for not wanting to be labeled an informer. These occurrences have disastrous effects on the pursuit of “Justice” for the person whom the crime was perpetuated against. A visit to communities will yield a wealth of information about the crime with people speaking authoritatively, however when asked to speak out , people say that “mi nah go court”, “a nuh my business dat” and “after mi a nuh informer”. And then the already burdened court system becomes stagnated as cases are put off until another date, over and over again.

Arrests can be made daily but making persons accountable for deviating from the law lies with every one of us. Jamaica has a serious crime problem,  that is the reality. Jamaica is not seen as a favourable place to invest by many, corruption is robbing taxpayers of their hard earned  money as money has to spent to remedy illegal acts. Crime whether white collar or blue collar affects every one of us, so persons from all the different fabrics of society need to have no-tolerance policy towards protecting criminals.

 A shift in mindset is the only way that we can move forward. Talking the Truth does not mean that you are an informer.

Are you guilty of Rape?

In Jamaica, Rape is when a male has sexual intercourse with a female without her consent with the intention to have sex with her without her consent or with indifference or recklessness, meaning, not caring whether or not she consents …” There are thus three essential elements under Section 3 (1) of the Sexual Offences Act  (SOA) for a person to be convicted of rape

1) Sexual intercourse must take place (This definition of rape does not include anal or oral penetration or penetration with an object other than a penis)

2) No consent- The female does not agree to engage in that activity

3) The Man is indifferent or does not care to ensure that the female consents ( A man cannot be “raped’ either by a man or woman under Jamaican Law)

Rape is a crime of basic intent, and based on the elements of the offence, one has to look at the accused man’s subjective intention, to see whether at the time of the incident, he HONESTLY and GENUINELY believed that the woman was consenting to the act. This is a very important point, because even though a woman may say she did not give her consent the court will look at the circumstances which led up to the act.

Coitus would also be classified as rape, where a woman believed that she was having sex with a particular person but through  pretense, or fraudulent concealment of identity, another man is the one who benefits from this mistaken consent.

It would be clear then that if held up at gun point, or if a female was threatened that there would be no consent. Obvious resistance and objections by the female are indicators as well, which can be used to show that a reasonable man could not have believed that  the female wanted coitus to occur.

The line becomes blurry when  persons are in a relationship compared with a stranger-encounter type situation, where the “He-said vs She-Said” scenario arises with little or no evidence to prove that a rape did or did not occur. There is an offence of Marital Rape detailed in Section 5 of the SOA, however it is best for males to take extreme care when engaging in sexual activity, even with their wives.

The Penalty if found guilty, is a maximum sentence of life imprisonment with a minimum term of 15 years.  There are however mitigating factors which may reduce the years of a conviction. Some considerations are the age of the offender, his general circumstances, his previous good character, his mental state at the time of the offence, the actual circumstances of the offence and a plea of guilty.

Being charged with rape can have debilitating impact on a person’s life as even if found innocent, there is often a stigma attached. Word to the wise: Think and ensure that there is consent before engaging in sexual activity or else you may be guilty of rape.

Kymberli Whittaker | BA, LLB (Hons)

Attorney-at-Law

Kingston | Jamaica

( Tel: +1(876)378-6774

* Email: kwhittaker@whitewhittaker.com

8 Website: www.whitewhittaker.com

Marijuana and the Dangerous Drugs Amendment Act 2015- How free will you really be to use Ganja?

by: Kymberli Whittaker

The Dangerous Drugs Amendment Act 2015 has not yet come into effect, but when it does please be mindful that the use of, possession of, and taking steps to import/export Marijuana is strictly regulated. Know the law and prevent the tarnishing of your criminal record, or the sanction of fines.

Possession of 2 ounces or less is no longer a criminal offence, which means that you should not be arrested for it. However, a police may issue a ticket for having this amount similar to a traffic ticket and the person has 30 days to pay JMD $500.00 at the Tax Office. It would appear that the criteria for a ticket is possession of the drug, so in order to avoid a sanction, then it would be safe to say that you still should not be found with marijuana, as a police officer can ticket at their discretion. If you are given a ticket and fail to pay, then the offender will be mandated to go to Petty Sessions court and will either be ordered to do community service or pay a fine $2,000.00. Failure to pay will result in a recording of the offence on a person’s criminal record.

Youth under 18, found with marijuana will be required to undergo counseling once it is proved that they are within this age group AND it appears to the police that they are dependent on the drug. Persons over 18 can also be referred by police once deemed dependent. This determination by the police appears to be a subjective one, and the criteria for dependency needs to be clarified, as it is clear if police officers have received or will receive the requisite training to determine dependency. Also it is not clear whether the dependency will be based off one observation of the marijuana user by the officer

It remains a criminal offence across the board to be in possession of marijuana of over two ounces and offenders can be arrested, charged, tried in court and if found guilty, sentenced to a fine or to imprisonment or both. The conviction will also be recorded on a person’s criminal record. Exceptions to this rule are:

• Persons of a Rastafarian faith who use it as a sacrament who are in possession for Religious purposes. Rastafarians however who wish to grow marijuana for religious purposes or sponsor or promote an event where Marijuana may be present in observance of the Rastafarian faith, will have to apply to the Ministry of Justice for a licence or permit .

• Possession of marijuana for medical or therapeutic purposes which has been recommended or prescribed by a registered medical doctor or other health practitioner approved by the Minister of Health
• Possession of Marijuana for purposes of scientific research by an accredited tertiary institution or is approved by the Scientific Research Council.
• Possession of marijuana pursuant to a licence, permit or authorization issued under the Dangerous Drugs Act.

KNOW THE LAW- Know your rights regarding Marijuana