Women's confederation on Domestic Violence Bill

ELEVEN women's organisations which form the Confederation of Women's Organisations (MCWO) have submitted their reactions to a Bill to make special provision for domestic violence and to amend the Criminal and Civil Codes.

Expressing its satisfaction that the Bill is finally being discussed in the House of Representatives, the confederation said that it contains positive aspects, such as the introduction of the protection, restraining and treatment orders to strengthen protection measures with regard to the victim and her/his children. However, it opines that very crucial issues need to be rethought and readdressed.

Among these is the much-debated issue of the kwerela (lawsuit). This has been a major bone of contention for years, and its effects are of great concern particularly to women and their children.

The kwerela, which placed the onus of starting proceedings against the aggressor on the victim, has now been removed and the police have been given the authority and responsibility to start proceedings without the need of the victim's consent.

However, this measure has been somewhat watered down, in that, once the case has started, the court may decide to stop proceedings at the victim's request.

The MCWO submits that this provision has, to a large extent, put the onus back on the victim to stay or continue proceedings. This may happen at a later stage, the period during which the victim is prey to further violence and bullying.

Moreover, the provision (Art. 20), that enables the victim to ask for the staying of proceedings after the case has been started, shall also result in loss of time and resources on public entities (courts, police, agency, professionals) when the court decides to stop proceedings.

But, more importantly, domestic violence is a crime against society and while the courts should consider the victim's forgiveness, it should in no way be a tool to stop proceedings. Therefore MCWO proposes that the last paragraph of Art. 20 should be deleted.

The definition of 'domestic violence' is too open-ended and may leave too much room for interpretation. MCWO proposes that the definition of the 1998 White Paper on which consensus was registered during its long period of consultation be adopted in this Act.

This definition clearly identifies "violations which may be regarded as constituting domestic violence: beatings, including those that result in slight injuries but which are repeated over a length of time; threats and intimidation; stalking; illegal arrest; mental and emotional abuse; offences against morality; molestation and rape."

Moreover, it is also necessary to consider three further aspects of the crime: "repetition of the crime; the seriousness of the crime and the direct or indirect effect on the victim." Furthermore, the vulnerability of particular groups needs to be addressed: "The need to make penalties harsher should be extended to those cases where the victims are more vulnerable because they are either old or physically or mentally handicapped, thereby finding it difficult to ask for help."

MCWO agrees with the list of persons in intimate relationships highlighted in Art. 2. However, it is felt that another group should be included: Persons who are in a relationship without children and not necessarily living together. This inclusion should also be effected in the relevant criminal code articles.

Harassment is another term that needs defining. Although both the equality act and the EIRA give definitions with regard to harassment, the context at work and in educational and financial entities is completely different from that of the family, and this should be reflected in the new Act.

Art. 15 does not define harassment clearly as including stalking and therefore, MCWO contends that there is an urgent need for a more detailed definition.

Art. 15 215A (3) seems to give the impression that violent behaviour can be of a 'reasonable' nature. MCWO wishes to remind the authorities concerned that Malta has been implementing a policy of no tolerance to violence for over ten years - are we now moving away from this very basic principle?

MCWO argues that it should be within the discretion of the courts to study and give due consideration to the circumstances in which the crime was committed, following the raising of certain pleas that would otherwise be allowed in court proceedings by the defence.

Protection order

MCWO welcomes the introduction of the protection order. However, there is nothing in the Act that gives the victim the right to apply for a protection order. Only the courts shall decide on its necessity. MCWO proposes that the injured party is not only given the right "to apply ... for the extension, variation or revocation of the order" but also the right to apply for the issue of a protection order.

Furthermore, in issuing a protection order, Art. 19 412C (4), it is stated that the court shall take into account "the accommodation needs of all persons ..." MCWO argues that, in cases of domestic violence, the victim and minors in particular should be protected and that the alleged aggressor's needs are secondary.

In this context, the 1998 White Paper had addressed in some depth the allocation of the matrimonial home. MCWO submits that this provision be revisited in this light.

MCWO argues that penalties should be made harsher across the board when domestic violence provisions are broken. Abuse of intimate relationships is in its nature doubly condemnable, especially in cases where minors are concerned both directly and indirectly.

The effect of violence on their lives often remains an indelible mark that they carry with them throughout their lives with ensuing negative consequences for themselves and for the others who build intimate relationships with them.

MCWO hopes that these issues are given due consideration in the ongoing Parliamentary debate so that the Bill on domestic violence be strengthened to provide for effective protection.

MCWO further augurs that an effective infrastructure is set up with adequate resources to care for the victim and /or the children in a manner that empowers them to take control of their lives and look forward to a better future.