Domestic Violence - 1

Before 2001, lawful wives and "common-law" spouses did not have any special protection in the courts against beatings and other acts of violence inflicted on them by their husbands or live-in partners. The opposite was also true. That is to say, the law did not provide any special protection to males who suffered violence at the hands of their female wives or partners. Domestic violence was treated merely as a form of violence in the same manner as a beating by one person of another. As a result of this, victims of domestic violence were left to seek protection and relief in the laws, including those governing trespass against the person.

The Protection Against Domestic Violence Act, No.22 of 2001, brought an end to this. The Act elaborates the meaning of domestic violence, identifies who might be a victim of such violence, and lays down remedies available to victims. Further, it identifies persons entitled to make application for relief and sets out the procedure for so doing. The Act also makes provision for the breach and enforcement of Court orders. And it gives police officers wide powers of entry and arrest.

Domestic violence is not restricted to physical violence. At Section 2 it is defined to include "physical, sexual, emotional or psychological or financial abuse." Such violence, to be domestic, must be "committed by a person against a spouse, child, any other person who is a member of the household, dependent or parent of a child of that household." The terms are further clarified. By "physical abuse" is meant an act, or omission that either causes or is intended to cause physical injury to a person or a fear of such injury by that person. "Sexual abuse" includes, on the one hand, any sexual contact made with force or the threat of force by the perpetrator with the victim and, on the other, the actual or attempted commission of any sexual offence otherwise punishable by law. "Emotional or psychological abuse" means behavior intended to "undermine the emotional or mental well-being" of a person.

So defined, the raising of a man's fist in front of his wife's face in a manner which causes her to scream for help, would most probably constitute an act of "physical abuse". What amounts to "emotional or psychological abuse" is not so easy to identify. So, the Act identifies practical examples as follows: constantly abusing and threatening a person with intent to intimidate him or her; persistently following a person from place to place; preventing someone from making use of his or her property; damaging or interfering with one's property; spying on a person wherever he or she happens to be; constantly telephoning a person at home or at work; keeping a person in confinement by use of force; making contact with a person's child, dependent or elderly relative, provided such contact is "unwelcome and repeated or intimidatory".

As to "financial abuse", this is defined as a "pattern of behavior" intended "to exercise coercive control over, or exploit or limit a person's access to financial resources". This definition, in our opinion, is probably captured by a man's repeated impregnation of his wife, against her wishes, calculated to deny her access to opportunities available to her for paid employment.

To take advantage of the Act, the act of domestic violence must have been committed against a wife or husband or child of the household or against "any other person" who is a member of the household or the parent of a child of the household. "Dependent" in this context means a person older than 18 years of age, who, because of physical or mental disablement or age or infirmity, relies for his or her welfare on either the perpetrator of the abuse or the victim of such abuse. Where the perpetrator of the abuse and the victim are spouses, the "household" is taken to be the residential dwelling house and lot regularly used by both or either of them. But, where the parties are no longer spouses, the household is treated as the dwelling-house and lot that was "last used habitually by either of them before or after they ceased to be spouses.

You may be wondering what kind of relief is available to an aggrieved party? The Court, that is to say, the Family Court, the High Court or a Magistrate's Court, is empowered to make three categories of Orders: a Protection Order; an Occupation Order; and a Tenancy Order. These are final, that is to say, long-outstanding orders. But, in each of these cases, the Court may make an Interim Order of no more than 21 days' duration pending, hearing of the matter to determine whether or not a final Order should be made. Thus, an Interim Order is made on an ex-parte application, that is to say, without the appearance in court of the party against whom the action is brought (the Respondent). But the Court has jurisdiction to make a final Protection Order on an ex-parte application if it is satisfied that delaying the proceedings would put the personal safety or a concerned person to great risk or would cause "serious injury or undue hardship". Further, "by the consent of all the parties", the Court may make what in the language of the law is called an "Order by Consent." An aggrieved person may appeal the making of an Order by the Court, as well as the Court's refusal to make an Order.

Depending on the facts of the particular case, a Protection Order may prohibit the Respondent from doing certain things. Section 4 of the Act catalogues these prohibitions. For example, the Respondent may be prohibited from entering or remaining in a household in question; from entering or remaining in the area in which the household is located; from entering a person's work place or school; from entering and remaining in any place where the Applicant or other interested party happens to be. The Respondent may also be prohibited from taking possession of property reasonably used by the Applicant, or from damaging, converting "or otherwise dealing with" such property. Moreover, the Respondent may be prohibited from engaging in behavior which has the effect of molesting an interested party. Such behavior include spying on a person's home, school or place of work; following or stalking the person in any place; persistently making telephone calls to the person; or causing or encouraging someone else to do these things to the person in question.

The Act may also direct the Respondent or the Applicant, or both Respondent and Applicant, as the case may be, to do other things. For example, the Respondent may be directed by the Court to undertake the following: return any property belonging to the Applicant that is in his or her possession or control; pay compensation to the Applicant for monetary loss arising from the Respondent's acts of domestic violence; immediately vacate any dwelling house for a specified period, notwithstanding that he or she owns or leases the dwelling house solely or jointly; continue the payment of rent for a reasonable period in respect of premises occupied by the Applicant; take reasonable care of a child or dependent; and surrender to the police any firearm, firearm licence or other weapon, whether used or unused, in his or her possession or control. And, most importantly, the Respondent or the Applicant, or both, may be directed to undergo professional counseling or therapy from a source approved by the Minister with responsibility for Community Development and Gender Affairs.

Three further points in relation to the Protection Order are to be noted. One is that a power of arrest may be attached to the Order. Another is that no more than $10,000.00 may be paid as compensation. The third is that, where premises are to be vacated, the police may be authorized to remove the Respondent either immediately or within a specified time.

Copyright William Para Riviere, December 2012.