A big dirty joke

A big dirty joke

...Lawyer labels Domestic Violence Act

BY KIMBERLEY HIBBERT
Senior staff reporter
hibbertk@jamaicaobserver.com

Sunday, January 19, 2020

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ONE attorney-at-law has supported recent claims made in the media that the 1996 Domestic Violence Act (DVA) is weak, labelling it as “a big dirty joke”.

In light of recent developments locally where three women were killed by their partners within a short space of time, attorney-at-law Michelle Thomas says there are many loopholes within the Act, which makes enforcement difficult.

“The Act does not have a proper definition of what domestic violence is. As set out in the Act, the memorandum of objects and reasons refers to violence within the home. Such violence include physical abuse and verbal assault and other types of conduct which threatens the physical and mental health of the victim. Various sections of the Act refers to alleged conduct and makes references to molesting by following or lay waiting, watching and besetting, making persistent telephone calls, use of abusive language, behaving in a manner which is of such nature and degree as to cause annoyance which results in ill-treatment and that is in Section 4(1e) of the Act and for violence by threatening to use or use violence against or cause physical or mental injury, which is Section 4 (2). So right there you don't have a proper definition of what domestic violence is. You have these broad headings and you have to try to fit your situation within those prescribed headings. That's the first loophole,” Thomas argued during an interview with the Jamaica Observer.

According to Thomas, another loophole is the stipulated fine and punishment if the occupation or protection order, which a woman can apply for under the Act is violated.

“If the respondent commits an offence where he or she contravenes an interim of a full protection order after it has been personally served, based on Section 5(1) of the Act there is a punishment by a fine not exceeding $10,000 or a term of imprisonment not exceeding six months, or both fine and imprisonment. This punishment is not a deterrent to break the order. To say that you would only be fined a $10,000 or six months imprisonment – it will not deter the persons from actually contravening the protection order. That won't stop them from violating the order,” she said.

Subsequently, she said one suggestion is that the judiciary arm of the Government should amend the Act to put in more draconian measures where men or women violate protection orders.

Thomas continued: “This $10,000 and six months is not a sufficient deterrent to ensure that people respect protection orders.”

A woman facing domestic violence has the right to apply for an occupation order or a protection order against her spouse or partner.

A protection order is similar to a restraining order which protects the applicant, in places where they are most frequent, from being interfered with by the respondent. Thomas explained that such places may include the church or one's place of work.

An occupational order is occupational rights to your home. This gives the applicant the right to stay at the residence or the matrimonial home to the exclusion of the respondent. According to Thomas it is normally used in situations where a parent has to tend to children and having them removed from the home is not in the best interest of the child. In other words it can give the woman the right to stay in the residence and ask the man to leave or give the woman the right to dwell in a certain section of the home with the exclusion of the man or vice versa.

But, Thomas quickly highlighted that the process to get protection and occupation orders often-times become a major deterrent.

“In order to take out a protection order the victim would have to file in the Resident Magistrate's Court within the parish that the incident occurred. You can do the application ex parte meaning without the presence of the person if you feel like your life is in danger. Most times it is done ex parte, but the process often serves as a deterrent,” she told the Sunday Observer.

“Basically, you have to outline your reasons to the court for wanting a protection order. You must feel as though you need the court to enforce certain orders for your protection, for your safety. Sometimes women feel they want the men to stay a certain amount of distance whether from their home or from their place of work. It is used when you feel really threatened to the point of need to have the court intervene to enforce orders for your safety. The court then becomes intrusive in your business because you have to outline why is it that you need it and you have to basically explain yourself,” Thomas explained.

She added that for such reason people hardly go to court for a protection order or occupational order. “Sometimes women just deal with the issue as how we know them to deal with the issue. They stay and take the beating until it gets really out of control. Then you hear seh man kill woman because dem cheat. The process is a big deterrent and the justice system has failed to advertise the benefits of using the occupation or the protection order. It is seldom done – you rarely see women going to court to enforce this — rarely,” she said.

Further, Thomas explained a number of other shortcomings within the Act.

She said: “There is not sufficient legislation to really address the issue broadly because the DVA only touches and concerns occupation and protection orders of the civil arena. We do not see where the legislation gives the power, or much power to the police to charge. While they can charge them under the Offences Against the Person's Act for things like grievous bodily harm or assault occasioning bodily harm, they cannot charge as it relates to domestic violence in and of itself within the Act. They can charge them under the broader headings but the legislation needs serious, serious amendments to cover instances of domestic violence.”

Of note, Thomas said where a protection order is enforced, a constable may arrest a respondent without a warrant if he has reasonable cause to suspect the respondent has committed a breach of the order.

Though this provision exists, the attorney said arrests are few when these court orders are violated.

“In deciding whether to arrest a person it must be reasonably necessary and the constable is required to take into account three factors as is outlined in Section 5, subsection 4 (a) to (c) of the Domestic Violence Act. In the view of police officers, they are generally reluctant to intervene in matters. It is very interesting to see how this section is used because they have the ability to arrest where somebody has violated orders but yet still they are not arresting [and] that's another thing. The police can quickly, effectively protect other parties that are concerned, but they fail to do so. What we are going to juxtapose is the fact that the English legislation gives the court the authority to attach a power of arrest to orders restraining the respondent from using violence only. Under the Jamaican legislation, the power of arrest is automatically attached to all protection orders, yet still we have low rates of police intervention where protection orders are being violated,” Thomas pointed out.

Even so, another loophole is that there is no similar provision in the Act with respect to the enforcement of occupation orders as they are for protection orders under Section (5). Subsequently, on its own, the occupation order is toothless.

Thomas said: “A breach of an occupation order will therefore not be an offence under the Act, but it may be coupled with a protection order or an interim protection order. A breach of either of these orders will lead to an offence. Now the provision of Section (5) for arrest without a warrant will apply in those circumstances. Stand alone there is no teeth. If you breach the occupation order – that's it. There is no enforceability, it doesn't have much teeth to bite. Therefore we wonder and question the efficacy of having an occupation order.”

Moreover, Thomas said that going forward there needs to be adjustments to the legislative framework to move issues of domestic violence out of the civil arena and make it a criminal charge, if change is to be seen.

“The legislation needs serious, serious amendments to cover instances as we're seeing more and more domestic violence cases where women and men are killing each other because of cheating or other breakdown in the relationship. We need to strengthen our legislation to address those issues,” she said.


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