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The law on domestic violence
Domestic violence is not just physical abuse. It includes sexual abuse, emotional or psychological abuse and financial abuse.
It is committed by a person against a spouse, child, any other person who is a member of the household or a dependant. Spouse includes a cohabitant—that is a person who lives or has lived with a person of the opposite sex as a husband or wife although not legally married to that person.
The Domestic Violence Act Chap. 45:56 defines and prohibits all forms of domestic violence and provides protection for victims by way of a Protection Order. Most forms of conduct also constitute criminal offences for which abusers can be charged and prosecuted.
Some forms of abuse
Emotional or psychological abuse is a pattern of behaviour of any kind aimed at undermining the emotional or mental well-being of a person. Some examples are:
• Persistent intimidation by use of abusive or threatening language;
• Persistent following of a person from place to place;
• Constantly watching the place where the person resides, works, carries on business or happens to be.
Sexual abuse includes sexual contact of any kind that is coerced by force or threat of force.
Financial abuse is a pattern of behaviour of a kind aimed at exercising coercive control over or exploit or limit a person’s access to money to ensure financial dependence.
Who can seek relief
A person who believes he or she is a victim of domestic violence may apply to the Court for a protection order. This person is called the applicant. A person against whom an application is made is called the respondent.
The following persons may also apply for a protection order on behalf of a victim of domestic violence: any member of the applicant or respondent’s household, a child, a dependant, a parent, a sibling, a person having a child in common with the respondent, a person in a relationship with the respondent, or a police officer, probation officer or approved social worker.
How to get a protection order
An application must be made on a prescribed form and filed with the Clerk of the Magistrates’ Court. The court shall grant a protection order where it is satisfied that the respondent (i) is engaging in or has engaged in domestic violence; or (ii) is likely to engage in conduct that would constitute domestic violence.
What types of relief
The court may grant immediate relief, pending the hearing and determination of the application, and even in the absence of the respondent, if it appears necessary to do so to ensure the safety and protection of the applicant.
An interim order or Protection Order may prohibit the respondent from:
• engaging or threatening to engage in acts of domestic violence;
• being in a place where the applicant is situated;
• communicating with the applicant;
• damaging the applicant’s property;
• approaching the applicant; encouraging another person to do these acts.
A protection order may also direct that the respondent:
• leave any place or residence for a specified period;
• return property to the applicant;
• pay money to the applicant for his or her or a child’s benefit;
• give up any firearm or weapon he/she possesses to the police;
• pay rent, provide care for any children; or undertake professional counselling from an approved agency.
Consequences of breach
A protection order may be made for any period the court thinks necessary but shall not exceed 3 years. Failure to comply with the terms of an order is an offence under Section 20 of the Act.
For a first time breach, the penalty is a maximum fine of $9,000.00 or in default, a maximum of three months in prison.
A second breach attracts a maximum fine of $15,000.00 or in default, imprisonment for 24 months. The magistrate can order the respondent to pay the fine and serve time in prison. Further breaches of the terms of an order can attract a maximum sentence of five years imprisonment.
Co-ordinator: Roshan Ramcharitar. This column is not legal advice. If you have a legal problem you should consult an attorney-at-law.
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