Domestic Violence Against Women: Legal Protection Under The Domestic Violence Act 1994
Domestic violence against women is an age-old topic and occurs indiscriminately amongst the population regardless of race, religion and status. It has often been discussed and debated in the mass media. Domestic violence against women is a serious issue as it harms both the physical and mental well-being of women. In general, victims of domestic violence including women may seek protections as provided for in the Domestic Violence Act 1994 (hereinafter “DVA 1994”). The DVA 1994 aims to provide legal protections in situations of domestic violence. Pursuant to the DVA 1994, female victims of domestic violence (hereinafter “FVDV”) are able to seek legal protections namely protection orders, compensation, and access to rehabilitation programmes. The aim of this paper is to examine the legal protections afforded to WVDV under the DVA 1994. This paper contains an analysis of the DVA 1994, Criminal Procedure Code (hereinafter “CPC”), Penal Code (Act 574), case laws, journals, newspapers and scholarly writings related to this area. This paper found that some of the legal protections conferred by the DVA 1994 are still inadequate and can be further improvised to ensure the interests of WVDV can be more effectively protected.
Keywords: Domestic violencewomenvictimlegal protectionsMalaysia
After the Domestic Violence Act 1994 (The DVA 1994 was passed by the Parliament on 24th June 1994 and came into operation on 1st June 1996.) (hereinafter “DVA 1994”) (Act 521) was amended in 2017 (The DVA 1994 was amended by the Domestic Violence (Amendment) Act 2017 [PU(b) 601/2017] which came into force on 1st January 2018.) , the term “domestic violence” has been expanded where the definition has compressive coverage of the commission of a variety of acts which include causing physical injury, psychological abuse, sexual abuse, financial abuse as well as abuse of victim’s modesty by a person against someone who has either intimate or familial relationship with the person. (Paragraphs (a) to (h) of section
Domestic violence against women is a global phenomenon and occurs indiscriminately amongst the population regardless of race, religion and status (Enemo, 2018). The paper focusses on females victimised in domestic violence (hereinafter “FVDV”) because the number of FVDV is increasing (Mahdzir, Rahman, Rahim, & Ismail, 2016). This was reported by the former Deputy Minister of the Ministry of Women, Family and Community Development, Datin Paduka Chew Mei Fun in the Dewan Negara on 26th April 2017 that around 23,212 cases of domestic violence against women were reported between 2010 and March 2017 (Chow, 2017). Additionally, FVDV suffer physical and emotional harms greater than men (Alejo, 2014).
The government has enhanced the legal protections provided for in the DVA 1994 twice particularly in 2012 and more recently in 2017. However, it appears that some of the legal protections conferred by the DVA 1994 are still inadequate and can be further improvised to ensure the interests of FVDV can be more effectively protected.
Purpose of the Study
The aim of this paper is to investigate the extent of the legal protections accorded to FVDV under the DVA 1994 as well as examine weaknesses inherent to the existing legal protections contained in the DVA 1994. Apart from that, the paper will propose amendments to the DVA 1994 and section
A qualitative approach was used consisting of a detailed analysis of the DVA 1994, Criminal Procedure Code (CPC), Penal Code (Act 574), case laws, journals, newspapers and scholarly writings related to this area.
Legal Protections Provided for in the DVA 1994
Article 8(1) of the Federal Constitution of Malaysia clearly sets out that “All persons are equal before the law and entitled to equal protection of the law”. While the legal status of victims is not explicitly made clear in the Federal Constitution, the term “persons” referred to therein may be construed as referring to any individual, including victims. Thus, by virtue of the said Article, victims should also be assured of being given equal rights of protection under the law (Hussin, 2011). The FVDV’s rights to obtain legal protections can be seen in the DVA 1994. Among the legal protections available to WVDV are protection orders, compensation and rehabilitation programmes.
One of the main features of the DVA 1994 is the protection order. The protection order aims to protect victims of domestic violence from further harm from their Abusive Husbands by directing them to refrain from doing certain specified acts for a certain period of time (Graca, 2017). Prior to 2017, there were only two types of protection orders issued by the court, namely: (i) an interim protection order (hereinafter “IPO”) that can be issued by the court during the pendency of investigations relating to the commission of an offence involving domestic violence; and (ii) protection order (hereinafter “PO”) that can be issued by the court after the Abusive Husbands have been charged in court with offences under the Penal Code involving domestic violence. More recently, in 2017, section 3A of the DVA 1994 was inserted to provide additional protection order known as an emergency protection order (hereinafter “EPO”) which serves as a speedy response to victims' immediate needs that can be issued by a welfare officer without having to lodge a police report and go through court process.
The EPO is a new protection order introduced in section 3A of the DVA 1994 in 2017. The EPO is basically an immediate response to a domestic violence without having to lodge a police report. (Section 3A(6) of the DVA 1994.) It offers immediate protection for WVDV in emergency situations. Evidently, EPO can only be requested by FVDV who are experiencing domestic violence in the case of paragraph (a) or (b) of section
The IPO is a temporary protection provided by the court to victims of domestic violence during the pendency of investigations relating to the commission of an offence relating to domestic violence. (Ibid., section
It is important to note that the IPO issued by the court may be set aside in accordance with section 12B of the DVA 1994. This matter was decided by the court in the case of
In general, the police play an important role in completing investigations in a criminal case. FVDV do not have access to the investigation papers that have been opened and only know the progress of the case if informed by the police from time to time. Recognizing this fact, section 19 (2) of the DVA 1994 was amended by inserting paragraph (c) where the police officer has the responsibility to inform the victim of the status of the investigation relating to the offence involving domestic offenses. Hence, constant monitoring on the investigation of domestic violence cases should be strengthened and the status of the investigation should be communicated from time to time to the FVDV to avoid any unwanted delays which may affect the welfare of the FVDV.
The PO is an order issued by the court. The PO should be applied either by the FVDV, FVDV’s lawyer, a social welfare officer on behalf of the WVDV or a police officer on behalf of the FVDV. (Section 13A of the DVA 1994.) Before the DVA 1994 was amended in 2017, the PO could only be applied when a criminal proceeding had been instituted against the Abusive Husbands under the Penal Code that falls within the definition of domestic violence. After Section 13 of the DVA 1994 was amended in 2017, the application of PO can be made either before or after criminal proceeding relating to domestic violence has been instituted against the Abusive Husbands. For the former, the PO can be applied within seven days after the FVDV has been informed in writing by a police officer that a criminal proceeding relating to the commission of an offence involving domestic violence will be instituted against the Abusive Husbands. (Ibid., Section 13(1)(a).) Meanwhile, in respect of the latter, the application of PO can be made at any stage of the criminal proceeding under the Penal Code or any another written law where the Abusive Husbands are charged with offences involving domestic violence. (Section 13(1)(b) of the DVA 1994.) Standard of proof required for a successful application is on a balance of probabilities that is necessary for the protection and personal safety of the victim. (Ibid., section
Pursuance to section 10(1) of the DVA 1994, FVDV who suffered injury or damage to property or financial loss as a result of domestic violence, may apply to the court for compensation in respect to the injury or damage or loss as it deems just and reasonable. For the purposes of section 10 of the DVA 1994, it is more of a civil application as described in section
In the context of a criminal case, there are various forms of financial penalties that can be imposed by criminal courts which include fines and compensation for damage suffered. Although both bring financial implications upon the offender, it is important to note that there are differences between the two. Fines are imposed by the court and are payable to the state. Meanwhile, compensation is also imposed by the court but is payable to the victim and not to the State. This can be seen in
As an alternative to the method detailed above, some countries set up a fund for providing damages to the FVDV. The idea of recompensing victims in general is not unusual. A victim’s right to compensation has gained traction and has been practiced by other countries. Many nations, such as the United Kingdom, Northern Ireland, United States, Canada and Australia have formed non-profit organizations known as the Criminal Injuries Compensation Board (Ismail, 2011). For example, the United Kingdom first started a compensation scheme funded by the state, for victims of crimes in 1964. The Criminal Injuries Compensation Scheme was set up in 1964 to compensate blameless victims of violent crime for loss or harms in consequence of crime victimization. Subsequent to the enactment of the Criminal Injuries Compensation Act 1995, the Criminal Injuries Compensation Authority was established to administer a tariff-based compensation scheme in England, Wales, and Scotland (Criminal Injuries Compensation Authority, 2017). It is noted, however, at home in Malaysia this idea has not garnered momentum or gained widespread recognition (Ismail, 2011). Thus, it is worthwhile for the Malaysian government to analyse and assess the cost and benefits of such scheme and seriously consider adopting the scheme to effectively support the WVDV financially.
In light of section 11(1) of the DVA 1994, where the application for PO is made, in addition to issuing a PO, the court may make an order that one or more of the parties to the dispute be referred to a rehabilitation programme, provided that an order to refer the victim to a rehabilitation programme shall be made only with the consent of the victim. When considering any questions relating to the making of an order under section 11(1) of the DVA 1994, the court may, whenever it is practicable, take the advice of a social welfare officer or some other trained or experienced person. (section 11(3) of the DVA 1994.) The Rehabilitation programme refers to the programme provided by the Ministry responsible for welfare services for the purposes of family and community development. (Ibid., section 11(4).) The rehabilitation programme, was established under the management of the Ministry of Women, Family and Community Development to raise awareness and educate victims and perpetrators of domestic violence issues such as family, financial management and emotional management during the period of PO to address the root cause of domestic violence problems (Hasnan, 2017). It is important to note that this programme is conditional upon the victim’s consent. However, the section is silent as to whether the consent, if given, can be withdrawn at any stage of the programme. Therefore, it is recommended that even if the FVDV have given their consent to join the programme, the consent given may at any time be withdrawn without any implications if they feel intimidated, scared or threatened. More importantly, the programme should not in any way threaten or influence any FVDV to withdraw the police report lodged against the Abusive Husbands.
Domestic violence against FVDV is a global phenomenon that occurs in all sections of society regardless of race, religion and status. The Malaysian government must adopt a serious stance against domestic violence to eradicate this disease from society at large and ensure that FVDV are kept safe and their interests are adequately protected. The government has made some headway in addressing this issue by amending the DVA twice in 2012 and more recently in 2017. However, there is still much that can be done to ensure the effectiveness of the Act in safeguarding the interests of FVDV. The following recommendations are suggested to ensure the interests of FVDV are more protected. First, it is proposed that the scope of EPO application be also extended to paragraph (c) of section
This research is funded by Universiti Kebangsaan Malaysia (UKM) under grant i.e. DCP-2017-009/5.
- Alejo, K. (2014). Long-term physical and mental health effects of domestic violence. Themis: Research Journal of Justice Studies and Forensic Science, 2(1), 5.
- Bernama. (2017, July 18) Welfare officers will be empowered to issue EPO, protect domestic violence victims. New Straits Times. Retrieved from https://www.nst.com.my/news/nation/2017/07/258515/ welfare-officers-will-be-empowered-issue-epo-protect-domestic-violence
- Chow, M. D. (2017, April 26). Domestic violence cases on the rise, 5,796 cases recorded last year. New Straits Times. Retrieved from https://www.nst.com.my/news/nation/2017/04/233984/domestic-violence-cases-rise-5796-cases-recorded-last-year
- Clark, C. J. (2013). Intimate Partner Violence. In Goldman, M. B., Troisi, R., & Rexrode, K. M. (Eds), Women and Health, (pp.725-733). London: Academic Press.
- Criminal Injuries Compensation Authority. (2017). Criminal Injuries Compensation Authority Annual Report and Accounts 2016-2017. Retrieved from https://assets.publishing.service.gov.uk/ government/uploads/system/uploads/attachment_data/file/630470/WEB_VERSION_FINAL_6_3352_CICA_ARA2016-17_v23_180717__web_.pdf
- Enemo, I. P. (2018). Effectiveness of Nigeria’s international obligations in curbing domestic violence. Nnamdi Azikiwe University Journal of International Law and Jurisprudence, 9(1), 1-13.
- Graca, S. (2017). Domestic violence policy and legislation in the UK: a discussion of immigrant women’s vulnerabilities. European journal of current legal issues, 22(1). Retrieved from http://webjcli.org/article/view/531/715
- Hasnan, H. A. (2017). Menghendap bekas pasangan tidak masuk Akta Keganasan Rumah Tangga. AstroAwani. Retrieved from http://www.astroawani.com/berita-malaysia/menghendap-bekas-pasangan-tidak-masuk-akta-keganasan-rumah-tangga-150395
- House of Representatives (2017). July 25 Debate. Retrieved from https://www.cljlaw.com/files/hansard/ DR/pdf/DR-25072017.pdf
- Hussin, N. (2011). Punitive justice in the Malaysian criminal law: balancing the rights of offenders with those of the victims. Journal of Applied Sciences Research, 7(13), 2399-2404.
- Ismail, S. Z. (2011). Constructing some possibilities for compensation as part of legal remedies for rape survivors: the case of Malaysia. European Journal of Social Sciences, 26(2), 176-184.
- Jeffries, S., Bond, C. E., & Field, R. (2013). Australian domestic violence protection order legislation: A comparative quantitative content analysis of victim safety provisions. Current Issues Crim. Just., 25, 627.
- Mahdzir, N., Rahman, A. A., Rahim, A. A., & Ismail, C. T. M. (2016). Domestic violence court: a new model to combat domestic violence against women in Malaysia. UUM Journal of Legal Studies, 7, 95-105.
- McFerran, L., & Wilcox, K. (2009). Staying home, staying safe: the value of domestic violence protection order provisions in homelessness strategies [Paper in: Housing.]. Reform, 94, 24.
- Modi, M. N., Palmer, S., & Armstrong, A. (2014). The role of Violence Against Women Act in addressing intimate partner violence: a public health issue. Journal of Women's Health, 23(3), 253-259.
- World Health Organization. (2010). Preventing Intimate Partner and Sexual Violence Against Women: Acting and Generating Evidence, World Health Organization, Geneva, Switzerland.
This article is distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license, and indicate if changes were made.
About this article
Cite this paper as:
Click here to view the available options for cite this article.