Discrimination on basis of criminal record

DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD

South Africans who have a criminal record are most likely to face significant barriers in their reintegration and full participation in the society. NICRO has found that securing full time employment is one of the greatest difficulties for former offenders. There is a serious lack of empirical evidence on recidivism in SA, but estimates have been made of between 66-95% return to prison (McAree, T. 2011; Schoeman -2003 in Van Wyk 2014:15). Employment is a key factor in the reintegration or offenders and a resource for turning the lives of ex-offenders, their families and society around, YET it is the most elusive! Harsh and punitive attitudes of society can be a key factor. Shut off from legitimate job opportunities, former offenders  may resort to illegal ways to survive. A stable family life can provide an ex-offender with the support and encouragement to stay crime-free, but relations with family members are often strained due to former offenders not being able to bring in income.

On the 17^th March 2017, in commemoration of Human Rights month, NICRO partnered with the Western Cape Government -Department of Labour to host a seminar entitled “ Equal opportunity for work-seekers at risk,”  looking particularly at discrimination in employment for those work-seekers with a criminal record. The purpose of the session was to promote Public Employment services in terms of the fair selection and recruitment practices within the realm of equal opportunities; to ascertain some of the practical difficulties faced by employers and employees when a person with a criminal record seeks to participate in the workplace, and to seek the views and ideas of all stakeholders as to what needs to be done to eliminate instances of discrimination and increase the intake of former offenders.

The source document upon which the discussion centred was on information drawn from the United Nations, Human Rights and Equal Opportunity Discussion paper, December, 2004, on, “Discrimination in employment on the basis of a criminal record.” There had been a significant number of complaints to the Human Rights and Equal Opportunity Commission in recent years from people with a criminal record alleging discrimination in employment. The complaints also indicated that there is a great deal of misunderstanding by employers and employees as to what amounts to discrimination on the basis of criminal record.

The principle of non-discrimination is all about removing stereotypes and allowing individuals to participate fully in society on the basis of their individual merits rather than be judged by the characteristics that are attributed to them through generalizations.  It is about ensuring that they have the same opportunities as others to participate in society. In South Africa, employment practices appear to show a standard blanket criminal record prohibition in employment. A person may apply for a job, but as soon as they declare they have a criminal record, they are likely to be automatically disqualified from proceeding with the application.

According to the UN document, like many other areas of discrimination, the issue of discrimination on the basis of criminal record involves a careful balancing of rights. On the one hand former offender have served their time and paid their debt to society. They have the same right to seek employment as any other member of the community. On the other hand, there may be certain circumstances where a person with a particular criminal record poses an unacceptably high risk if he or she is employed in a particular position.  The UN Commission’s position is clear that in order to determine whether it is appropriate to exclude people with criminal records from certain areas of employment, the inherent requirements of a particular job must be identified and there must be careful consideration about whether a particular persons criminal record would disqualify him or her from properly meeting these requirements. NICRO is keen to form partnerships to address this issue.

Shoplifting, Stealing, and Theft: A First Time Offense

Just about anything and everything can be shoplifted, from jewellery, alcohol and cheese to medicine and cleaning products. There is no specific item that is shoplifted, however there is always a price to pay.

Shoplifting is a complicated crime though, and because of this, if you are caught shoplifting you should always contact your lawyer and work with them to solve the problem:

1. What is the value of the item or items that you stole?

2. Were you intoxicated when the incident occurred?

3. Do the items indicate that you have a drug problem?

4. Did you involve others in a plan to steal the items? If so, how many people? Were any of them minors, people with mental health issues, people with developmental disabilities, or people who were elderly?

5. Were you stopped by a security officer or store merchants who tried to recover the items? What happened as a result of that interaction?

6. Were you caught on videotape, or on another type of recording device, such as audio tape?

7. What is your criminal history?

8. Can you pay back the merchant right away? This may encourage them to decline to testify against you.

Even if this is your first offense, you can be charged with a felony. For example, if you have stolen a 24-karat gold chain, or a child was involved in the act, you will not be offered the same plea bargain as a person alleged of slipping a pack of mints into their pocket.

The first thing you should do is ask your attorney to talk to the merchant. See if the merchant will accept payment in return to drop the charges. Have you been charged with a criminal offence? Let NICRO help you out during this tough time, we can offer a wide range of services to you, just click here.

You may be offered the chance to participate in a NICRO diversion programmme. A diversion programmme is a type of plea bargain. In this program, you usually complete community service hours and pay the court a fine. You are also instructed not to commit another alleged offense for a set period.
If you get a second charge, especially for shoplifting, it is extremely unlikely that you will get a second chance to participate in a diversion program.

If the public prosecutor or judge decides not to offer you the chance to participate in a diversion program, you need to decide whether you want to challenge the accusations in a trial or take a plea bargain. If you were intoxicated at the time of the incident, or the items that you took indicate that you have a drug problem, consider contacting NICRO to take part in one of their many helpful programmes or seek help from a counsellor. The charges may be dropped if you are taking action to avoid a similar situation.

Innocent man in prison was treated like the scum of the earth

A 22 year old steel worker who was falsely accused of rape, decided it was better for his safety if he fabricated a story and told other inmates that he was in prison for a shooting. But, one day, his name and charge details were revealed.

"In prison, if you are in for anything relating to a sex offence you are the lowest of the low," he explained. "My lawyers and even the prison staff told me that I would be in serious danger if other prisoners found out what I was charged with. So I concocted this story about being a career criminal who was in over a shooting. People seemed to believe it, but when my name was in the paper they realised why I was really there. I didn't leave my cell again."

In March 2009, James and a friend were accused of rape. Apparently they had burst into her home, threatened her with a knife and then raped her. The truth was, James knew the woman beforehand and she has invited them over after a night out.

James and his friend had never spent any time in jail. Luckily for his friend, he got bail and could leave after 10 days, but James was on remand for a full year. He had to spend most of the time in one of Britain's toughest prisons.

After a long hard battle, they were both acquitted in March this year. But even though he was cleared, James still says the feeling of being accused of rape still haunts him. He has not only lost a year of this life for something he did not do, but he is also not sure if he still has a job.

"Being accused of something I did not do was a nightmare," he said. "But when people in prison found out what the allegation was my life became unbearable. They would put razor blades under the door and urinate into my cell. They threatened me and my family.

"I was in a cell for 23 hours and 45 minutes a day for my own safety. The only time I was allowed out was for 15 minutes at night time when all of the other prisoners were asleep.

"Eventually I had to be transferred to Barlinnie for my own safety. I told the other prisoners the shooting story, which worked for a while, but then one of the guys from Addiewell was transferred too and it started again. I was put on suicide watch and I refused to eat. When I went out on the wing, people would point and say, 'there's the monster'.

"Next they moved me to the sex offenders' wing. I was the only remand prisoner there, and it was hell. There were rapists and pedophiles and I did not want to associate with these guys but I was being treated like one of them."

Even after his horrible experience, James has decided to support the suggestion that rape suspects should be given the same anonymity as victims. The proposal has been opposed by women's rights groups, who say that such a move would prevent genuine rape victims coming forward.

James said: "I understand that rape victims should have anonymity, but I do not see any reason why suspects should have their names in the public domain if they have not been found guilty of a crime.

"I fully agree that rapists should be named and shamed. They are the scum of the earth and their names and photographs should be in every newspaper. But in my opinion that should only happen when they are convicted.

"I had my name dragged through the dirt because of a false allegation. I was labelled a rape suspect and it nearly ruined my life.

"My name was cleared in a court of law but even now I hear the phrase 'no smoke without fire' and I feel that some people still look at me and say things behind my back.
 
"I agree with what women's groups say 99.9 per cent of the time. I think what they do for victims of rape is great because it is a terrible crime, but on the point of anonymity I have to disagree.

"When I was in Barlinnie I met three people who were on remand for rape: two were acquitted and the other had his conviction overturned on appeal. So false allegations do happen.

"People have to realise that cases like mine do occur. But because I was not entitled to anonymity my name was plastered across the newspapers with the word rape next to it. I will forever be linked with a rape accusation, even though I have been acquitted."

Have you been charged with a criminal offence? Let NICRO help you out during this tough time, we can offer a wide range of services to you. All you have to do is contact NICRO today!