After many years of lobbying by feminists and women’s rights activists, the Domestic Violence Act
[Chapter 5:16] (hereafter “the Act”) was passed into law in 2006 and came into operation on 25 October 2007. The need for such a law was to address the rise of violence against women and children. Resistance to the law was and is motivated by the archaic and patriarchal reluctance to meddle in the private sphere. In line with the equality clause in our Constitution, the Act does not just protect women and children but also men and boys who are victims of domestic violence.
The Act in General
The Act is radical not only in its definition of what constitutes domestic violence but also in allowing third parties to apply for a protection order on behalf of the complainant and with the leave of the court without the consent of the complainant.
Apart from the civil remedies available to a victim, every act of domestic violence, save for emotional, verbal, psychological, or economic abuse is a criminal act that attracts a level five fine or imprisonment for a period not exceeding five years or both.
It is well known that many times female victims of domestic violence were turned away by the police on the basis that the police do not interfere with domestic affairs. Men who were victims of domestic violence would be laughed at, patronised and also turned away. The Act now obliges the police to have at least one police officer at each station with ‘expertise in domestic violence, victim friendly and other family related matters’, see Section 5 of the Act. In addition to the usual enforcement measures, the Act obliges the Minister of Justice to appoint social welfare officers, members or employees of private voluntary organisations involved in welfare work for victims of domestic violence, or Chiefs or Headmen to be anti-domestic violence counsellors. The anti-domestic violence counsellors are tasked with the roles of advising, counselling, mediation, investigation, arranging accommodation and/or medical examination of complainants, prior to the issuance of an interim or final protections order.
Finally the Act established a Domestic Violence Council which is mandated, inter alia, to constantly review the problem of domestic violence, to disseminate information, increase awareness, promote the provision of services necessary to deal with all aspects of domestic violence and promote the establishment of safe houses.
What is domestic violence?
The complainant in domestic violence includes a spouse, a former spouse or an estranged spouse, or anyone living with or who has lived with the perpetrator, whether or not they have or had an intimate relationship. It also includes a child of the perpetrator, whether adopted, born out of wedlock or a stepchild. This definition of complainant was meant to be sufficiently wide to cover all persons who might be affected by violence or mistreatment in the home.
There are sixteen acts of domestic violence in Section 3 of the Act:
‘Meaning of domestic violence and its scope
(1) For the purposes of this Act, domestic violence means any unlawful act, omission or
behaviour which results in death or the direct infliction of physical, sexual or mental injury to
any complainant by a respondent and includes the following—
- physical abuse;
- sexual abuse;
- emotional, verbal and psychological abuse;
- economic abuse;
- malicious damage to property;
- forcible entry into the complainant’s residence where the parties do not share the same residence;
- depriving the complainant of or hindering the complainant from access to or a reasonable share of the use of the facilities associated with the complainant’s place of residence;
- the unreasonable disposal of household effects or other property in which the complainant has an interest;
- abuse derived from the following cultural or customary rites or practices that discriminate against or degrade women—
- forced virginity testing; or
- female genital mutilation; or
- pledging of women or girls for purposes of appeasing spirits; or
- forced marriage; or
- child marriage; or
- forced wife inheritance; or
- sexual intercourse between fathers-in- law and newly married daughters-in- law;
- abuse perpetrated on the complainant by virtue of complainant’s age, or complainant’s physical or mental incapacity;
- abuse perpetrated on the complainant by virtue of complainant’s physical, mental or sensory disability, including a visual, hearing or speech functional disability;
- abuse perpetrated on the complainant by virtue of complainant’s mental illness, arrested or incomplete development of the mind, psychopathic disorder or any other disorder or disability of the mind;
- any act of domestic violence described in paragraphs (a), (b), (c), (e), (f), (g), (h) or (i) when it is perpetrated on the person or property of the complainant’s representative.’
So what does a person who is a victim of domestic violence do?
A complainant who is a victim of domestic violence always has the option of making a police report. If the complainant has suffered injuries, the police will give her/him a form for a doctor to examine and treat the complainant and make a statement under oath as to the injuries and treatment. If the complainant is unable to do this, due to the nature of the injuries or even fear, then a representative can do it for her/him. A complainant’s representative can be a police or social welfare officer, a relative, a neighbour, a counsellor or such other persons as are given authority in the Act.
The complainant or her/his representative can apply for a protection order by filling in Form DV3 in triplicate. The form can be obtained from any magistrate’s court, which will require the applicant to make the necessary copies at her/his own cost. The clerk of court is obliged to inform an applicant who is not legally represented of the relief available and the effect of the order if granted as well as the complainant’s right to resort to criminal and/or civil remedies.
The application must be placed before the court within forty-eight hours but if the circumstances so dictate the application may be brought outside court hours if the complainant would suffer unduly from any delay. The application may also be supported by an affidavit and this is advisable particularly if urgent relief is sought. The court will inquire into the matter as soon as possible and may call for oral evidence or affidavits or medical evidence. Medical evidence must be supported by a police report. If the court is satisfied that an act of domestic violence was or is being committed or threatened, the court shall issue an interim protection order together with a warrant of arrest suspended on condition that the respondent complies with the interim protection order. If the circumstances so warrant, the court may issue a notice instead of an interim protection order.
The interim protection order or notice has a return date and must be served on the respondent by a police officer free of charge or a messenger of court if the complainant can afford it. On the return date the respondent must appear before the court to show cause why a final protection order should not be issued.The court will consider all the evidence already on record, examine any witness and call for further evidence as it considers necessary. If the court is satisfied that an act of domestic violence was or is being committed or threatened the court issues a protection order and a warrant of arrest which is suspended for five years so long as the respondent complies with the protection order. A protection order and the suspended warrant shall also be served on the respondent by a police officer, messenger of court or sheriff within forty-eight hours of issue. A protection order remains in force for five years unless earlier varied, revoked or extended. If the respondent breaches the protection order, the complainant or her/his representative may depose to an affidavit requesting the police to enforce the warrant of arrest. The respondent will then be brought before a criminal court on a charge of contravening Section 8 or 9 of the Act.
So what relief can a complainant obtain?
An interim or final protection order may contain any of the following:
- An order prohibiting the respondent from committing acts of domestic violence;
- An order directing the respondent to stay away from the complainant’s residence, workplace, or other place or any part thereof;
- An order directing the respondent to pay emergency monetary relief for the maintenance of the complainant and/or any child. This is valid for up to six months unless earlier revoked or extended by a competent court. The complainant can within the six months approach the Maintenance Court for a maintenance order;
- An order awarding temporary custody of any the respondent’s children or dependants to any person or institution and regulating the respondent’s rights of access;
- An order requiring the respondent to pay compensation;
- A counselling order for the complainant or respondent or both;
- Any other order necessary for any affected party’s well-being.
Victims of domestic violence must no longer suffer in silence. Together we can eliminate domestic violence by taking concrete action in terms of the law against the perpetrators.