{"id":9388,"date":"2023-10-11T10:27:49","date_gmt":"2023-10-11T14:27:49","guid":{"rendered":"https:\/\/faogw.org\/?p=9388"},"modified":"2023-10-14T22:10:05","modified_gmt":"2023-10-15T02:10:05","slug":"domestic-violence-part-1","status":"publish","type":"post","link":"https:\/\/faogw.org\/domestic-violence-part-1\/","title":{"rendered":"DOMESTIC VIOLENCE – Part 1"},"content":{"rendered":"\n

Definition; Historical Overview; the Domestic Violence Act; and Case Study<\/em><\/strong><\/p>\n\n\n\n

Definition<\/p>\n\n\n\n

Domestic Violence refers to violence or aggression committed by a person against another within the home, usually involving the abuse of a spouse. It is usually a repetitive and continuous process and is often perpetrated by someone in a dominant position or who is seeking to establish dominance over their victim. It is a means of control most commonly used to keep someone from leaving the situation. Domestic violence may be physical, sexual, psychological, or emotional abuse. Its prevalence in our society calls for a deeper look into what it was when it started, the reasons for it, its effects on all involved or affected by it, and the law\u2019s response to it.<\/p>\n\n\n\n

Historical Overview<\/p>\n\n\n\n

Domestic violence is historically ingrained in the fabric of our local culture and was commonly accepted as a way of life for many families. In the traditional patriarchal society, the man, as the head of the household and sole breadwinner, often established dominance. The female partner was, and in some sections of society, still seen as property, a mindset that only perpetuated the problem. The man was allowed to punish his wife for her \u2018mistakes\u2019, often through violent physical beatings and verbal abuse – yelling, screaming, threatening, degrading, and belittling – each equally detrimental. These scars were hidden from the naked eye, but nonetheless, they were equally painful. This pattern of abuse and violence has been at the very seams of our culture as a Caribbean society for many years. <\/p>\n\n\n\n

However, the social and legal attitudes towards domestic violence changed over time. In fact, in the case of R v Jackson [1891] 1 QB 671, CA<\/strong>, a husband was found to have no right to kidnap or detain his wife against her will. Further, the case of R v R [1991] UKHL 12<\/strong> is a landmark case on marital rape. The husband contended that he was not guilty of attempted rape since a husband could not rape his wife. The House of Lords ruled that a husband could rape his wife, and as a result, he was charged with his wife\u2019s attempted rape. <\/p>\n\n\n\n

According to Justice Rajnauth-Lee, Judge of the Caribbean Court of Justice (\u2018CCJ\u2019), domestic violence has become the reality of primarily women, owing largely to the \u201cpatriarchal plantation structures\u201d which have shaped the \u201cnature of gender relations in the Caribbean\u201d. However, domestic violence does not only affect women. Rather, men, children, and families can also be the victims of such crimes. <\/p>\n\n\n\n\n\n\n\n

In Guyana, domestic violence is still a chronic problem that must be prevented and stopped in situations where it already exists. Often times you hear stories or read articles in the newspaper about women and children who are abused or murdered by their partners and\/or their loved ones. However, these are not just sad stories you hear or headlines you read, but rather it is a chilling reality, and they could happen to you or your loved ones. Even worse, many cases go unreported. <\/p>\n\n\n\n

In fact, recently, a woman was set on fire by the father of their child with whom she shared a home. Thankfully she survived but was left with severe burns that left her completely unrecognisable. During an interview, her mother revealed that the man had chopped her on her head two years prior. The battered woman had initially made a report but failed to follow up with it. She eventually reconciled with him and their four-year-old son until this most recent tragedy. <\/p>\n\n\n\n

The Domestic Violence Act<\/strong>, Chapter 11:09<\/strong><\/p>\n\n\n\n

In response to the domestic violence problem in Guyana, Parliament enacted the Domestic Violence Act <\/strong>(\u2018the DV Act<\/strong>\u2019) to \u201cafford protection in cases involving domestic violence by the granting of a protection order, to provide the police with powers of arrest where a domestic violence offence occurs and for matters connected therewith or incidental thereto.\u201d<\/p>\n\n\n\n

Section 2 <\/strong>of the DV Act<\/strong>, the interpretation section, defines a domestic violence offence as \u201ca prescribed offence committed by a person against a person with whom he is associated or a relevant child\u201d. Section 2 <\/strong>further describes a prescribed offence to include murder or attempted murder; manslaughter; the use or threatened use of any other violence or physical or emotional injury; and a rape offence. According to the Sexual Offences Act<\/strong>, rape refers to the penetration of the vagina or anus using any body part or any object, including but not limited to a stick, bottle, or baton.<\/p>\n\n\n\n

The DV Act <\/strong>makes reference to and describes certain behaviour which amounts to abuse. Firstly, there is harassment. To harass someone means to threaten or intimidate them by continuously verbally abusing, that is, \u201ccussing up\u201d, screaming or humiliating them; threatening them with physical harm or violence; causing damage to their property such as by breaking or damaging the person\u2019s property; scaring the person by causing them to anticipate physical or emotional harm; stalking; hiding the person\u2019s property; watching over their house, workplace, school or anywhere the person goes on a daily basis; making unwelcome advances; and using abusive language.  
It is to be recognised that abuse is not only physical. Accordingly, the DV Act<\/strong> also describes psychological abuse. It refers to any repeated or continuous act or conduct which causes a person to suffer emotional harm by humiliating, dishonouring, or lowering that person\u2019s self-esteem. Certain acts that may cause psychological abuse include blackmail; restricting that person\u2019s access to their own things or property; constant watching over the person in a way that is<\/p>\n\n\n\n\n\n\n\n

threatening; keeping the person away from their children; not allowing the person to eat or sleep; and destroying or withholding items which are dear to the person so as to cause them emotional agony.<\/p>\n\n\n\n

Importantly, the DV Act <\/strong>stipulates who is able to utilise the Act<\/strong> and to whom it applies. Any person who is suffering from domestic abuse is automatically eligible to be protected under the DV Act<\/strong>. <\/strong>As was abovementioned, a domestic violence offence may be committed against an associated person or a relevant child. The DV Act<\/strong> therefore states who may be considered an associated person and a relevant child. Section 3 <\/strong>states that a person is associated with another person if they: are married or were married to each other (\u2018spouses or former spouses\u2019); live or have lived together as husband and wife (\u2018cohabitants or former cohabitants\u2019); are or have engaged in a sexual relationship; lived or have lived in the same household in the past, (but not as tenants or employees unless there was sexual relations between them; are relatives; are currently or were engaged to be married (\u2018fianc\u00e9e or fianc\u00e9\u2019); and are the parent of a child or a person with parental responsibilities. Further, Section 2 <\/strong>describes a relevant child, and it includes any child living with or is expected to live with either the abuser or the abused; and any other child whose interests would have to be taken into consideration. <\/p>\n\n\n\n

The DV Act <\/strong>has set out to protect the above-listed persons once they are the victim of or have been the victim of domestic abuse. In such circumstances, the victims or someone on their behalf may have recourse to the Court to apply for a protection order for them. <\/p>\n\n\n\n

The issue of who can utilise the act came under scrutiny before the Caribbean Court of Justice in the case of  OO v BK and the Attorney General of Barbados [2023] CCJ 10 (AJ) BB<\/strong>.<\/p>\n\n\n\n

In this case, the CCJ heard an appeal from the decision of the Barbados Court of Appeal to dismiss the appellant\u2019s application, OO, for a protection order against the first respondent, BK. <\/p>\n\n\n\n

Facts: The appellant and the first respondent were in a relationship for three years, during which time they lived together for almost two years and had a son. In November 2019, their relationship and cohabitation ended, but from February 2020 until May 2020, they were in a visiting intimate relationship. There was a violent incident between the two, following which the appellant sought a protection order for herself and her son against the first respondent. The Magistrate focused on whether the appellant had the status of a \u2018former spouse\u2019 under the Domestic Violence (Protection Orders) Act <\/strong>as amended by Act 2 of 2016<\/strong>. The appellant informed the Magistrate that she was neither a former spouse nor was she, at that time, in any type of relation with the first respondent. The Magistrate concluded that the appellant was not a former spouse, nor did she satisfy any of the other categories as contemplated by the Act,<\/strong> and as such, the legislation did not apply to her. The application was dismissed. The appellant appealed to the Court of<\/p>\n\n\n\n\n\n\n\n

Appeal, and the majority upheld the Magistrate\u2019s decision. Two out of three of the judges believed that based on the appellant\u2019s own responses, she had disqualified herself from any of the classes of persons entitled to protection under the Act<\/strong> and that they found it difficult to comprehend how a former intimate partner could be eligible to apply for a protection order. The appellant appealed to the CCJ.<\/p>\n\n\n\n

Issues:<\/p>\n\n\n\n

    \n
  1. Whether the appellant was entitled to seek protection under the Domestic Violence Act<\/strong>, as amended?<\/li>\n\n\n\n
  2. Was the Magistrate correct to rely on the appellant’s opinion on an issue of law?<\/li>\n<\/ol>\n\n\n\n

    Held:<\/p>\n\n\n\n

    Issue 1<\/p>\n\n\n\n

    In interpreting the meaning of \u2018former spouse\u2019 under the Act, Justice Rajnauth-Lee used the literal approach, that is, using the natural and ordinary meaning of the word, and held that the appellant was a former spouse as contemplated by the Act<\/strong>. She noted that when interpreting legislation, not only should it be interpreted \u201cto achieve the objectives of the legislation and the intention of Parliament\u201d, but also regard must be had to \u201cfundamental human rights, core constitutional values, and principles as contained in the Constitution and international treaty obligations\u201d. <\/p>\n\n\n\n

    Justice Saunders, on the same issue, came to the same conclusion. He noted that the appellant was deemed as a former spouse and also a former cohabitant as she had lived with the first respondent \u2018as man and wife\u2019 in the same house for almost two years. She was also a former partner in a visiting relationship. Importantly, he noted that the appellant was a mother who was bringing proceedings against her child\u2019s father. Without more, such a woman automatically is presumed to fall into one of the categories of persons eligible to seek a protection order.<\/p>\n\n\n\n

    It should be noted that an important function of a judge is interpreting the legislation before them so as to ensure that there is no absurdity or injustice in its application to the issue before them. The appellant was a mother seeking protection for herself and her young son from her son\u2019s abusive father. Having regard to the domestic violence situation in the Caribbean and the purpose of the Domestic Violence Act<\/strong>, the decision of the Magistrate and the judges of the Court of Appeal that upheld the decision to dismiss the appellant\u2019s application was wholly incorrect. Accordingly, the CCJ overturned the Court of Appeal\u2019s decision and granted the appellant\u2019s application for the protection order against the first respondent. <\/p>\n\n\n\n\n\n\n\n

    Issue 2<\/p>\n\n\n\n

    Justice Rajnauth-Lee held that the Magistrate and Court of Appeal failed to appreciate that the issue before them was one of statutory interpretation, which is a question of law to be determined by the judges. As such, their determination of a question of law is to be based on their interpretation of the Act supported by the facts provided by the appellant as it relates to her relationship with the first respondent, not based on the opinion of the appellant. Further, Justice Saunders stated that the questions as to whether the appellant was a \u2018former spouse\u2019 or whether she was or was not in a visiting relationship or whether she was entitled to apply for a protection order \u201cwere all legal conclusions to be drawn from primary facts\u201d of which \u201cthe Magistrate was required to take due note of and form an independent assessment from the primary facts.\u201d <\/p>\n\n\n\n

    Conclusion<\/p>\n\n\n\n

    Domestic violence and abuse is a major issue in our society. With the introduction of the DV Act<\/strong>, Parliament has attempted to lay out the foundation for preventing and discouraging domestic abuse, protecting and providing a means of protection for domestic abuse victims, and punishing all abusers. Therefore, victims and witnesses of the abuse must utilise the DV Act <\/strong>to prevent and stop abuse and punish all abusers. We can alleviate this problem collectively by educating ourselves and others on what types of behaviour constitute abuse and how we can seek redress through the legal system. Moreover, we can lobby our elected officials to implement a layered support system for victims of domestic abuse, including assisted housing, financial support for victims who need it, as well as career training and job placement assistance to help victims gain independence and build or rebuild their lives. <\/p>\n","protected":false},"excerpt":{"rendered":"

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