More than one in every three sexual offences that went before the Supreme Court in the last decade was discharged because, in most cases, the long wait time for trial discouraged victims from wanting to move forward, according to Director of Public Prosecutions (DPP) Garvin Gaskin, who called for the establishment of a court to focus on sexual offences.

“We cannot have a scenario where someone subject to a traumatic event, harrowed experience, is then faced with having to deal with 

something like that five years later,” Gaskin told The Nassau Guardian.

“We’ve had experiences where persons have said just that, ‘I’ve moved on. I’m not going to relive that. I’m now married, and my husband doesn’t even know about it.’

“And so, the time-sensitivity that these trials take to come on is a challenge.

“And so, when that virtual complainant (VC) says that, ‘He did it. I maintain my position, but I’m not going to relive it. I’m done. I’ve healed to some extent and I’m not going backwards, we have to shut it down.

“That’s where the nolle prosequi comes in because we require the cooperation of that witness to effectively proceed.

“And so, you have based on our evidence, our view is you have a person who has been victimized and there is no justice in the end and that is our major challenge.”

A nolle prosequi means that the prosecuting authority decides to discontinue a criminal prosecution brought against an accused.

Defendants were discharged after a nolle prosequi was entered for 146 of the 429 cases that had recorded outcomes between January 1, 2010, and December 31, 2019, the data from the Criminal Registry Department shows.

This meant that 34 per cent of cases for all sexual offences were abandoned by prosecutors.

When only major sexual offences – rape, attempted and unlawful sexual intercourse – were considered, defendants, in roughly 36 per cent of the 379 cases, were discharged.

Gaskin said there are cases where prosecutors can still move forward even when the victim decides not to.

He pointed to a case where a victim decided not to move forward but prosecutors still proceeded with charges because the defendant had confessed to the offence on video.

“There were no allegations of oppression by the police or that kind of thing,” Gaskin said.

“The confession told the whole story, so we didn’t have the virtual complainant’s evidence but we had a confession …

“We resolved that the confession was full and frank and told the whole story and we pressed on without the VC’s evidence and we secured a conviction.”

The Bahamas has a longstanding problem with sexual offences.

This was highlighted by the 570 cases involving sexual offences that went before the Supreme Court in Nassau during the last decade.

While there might have been outcomes, none were listed for 141 of those cases, according to the Criminal Registry Department’s records.

Unlawful sexual intercourse and rape accounted for the majority of sexual abuse cases brought before the Supreme Court.

There were 190 cases involving unlawful sexual intercourse and 166 cases involving rape.

Thirty-nine per cent of the unlawful sexual intercourse cases resulted in convictions.

Thirty-four per cent of the rape cases resulted in convictions.

When asked about the conviction rate, Gaskin replied, “I know that each case has its peculiarities. Sometimes, witnesses perform poorly. Sometimes, witnesses perform well.

“But certainly, if your allegation is one of guilty and you convince the tribunal of that then, to me, that’s part of what your endeavour was. Your approach was to convince the person that what you allege was, in fact, the case to the requisite standard that the law requires.”

He said he is satisfied with prosecutors’ abilities to prosecute sexual offences.

However, Gaskin noted that the establishment of a court to handle only sexual offences would be helpful.

“Several jurisdictions recognize that sexual offences – and now trafficking person offences – have a peculiar component to them and that it is obvious that those matters ought to be done with a due dispatch because of that peculiarity,” he said.

“And so, if you have a sexual offences court, and that’s all that particular court is dealing with, you will have trials in the sense of where the defendant pleaded not guilty. You will have guilty pleas and I dare say some matters will have to be discontinued.

“But, in my view, you would at least have matters appropriately addressed timewise because that’s all that particular court will be dealing with.”

Gaskin said it is up to the judiciary to determine whether a sexual offences court should be established in The Bahamas.

He added that such a court would allow for “justice on both sides”.

“Again, if a defendant is subject to five and six and seven and eight and nine years awaiting trial, then he, too, is adversely impacted,” Gaskin said.

“And so, there needs to be a balance struck. I don’t think that anybody would complain about justice – whatever that justice is – in a timely fashion. Once it’s timeously dealt with by the courts, I think it’s a good thing for all parties.”

Chief Justice Sir Brian Moree has said that the establishment of a sexual offences court is being seriously considered.