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Finally, protected by the law
The recently passed law on the ‘Prevention of Domestic violence’ will not only raise awareness but also provide remedies to victims
By Mario Gomez
In the midst of all the brouhaha about P-TOMS and the date of the next Presidential Elections, the legislature enacted a law with potentially far reaching consequences for women in this country. The ‘Prevention of Domestic Violence’ law was passed by Parliament on August 9, without a dissent.

The law’s main purpose is to prevent violence or threatened violence between spouses, partners or members of the family and to provide victims with a speedy and easily accessible remedy. It allows a victim to approach a Magistrate for a Protection Order and also to have access to the family home, bank accounts, and to the children, where the court considers these remedies appropriate. The new law comes 10 years after the Penal Code Amendment of 1995, and a few years after the Maintenance Act and the Citizenship Amendment Act, the other significant pieces of legislation on women’s rights adopted in the recent past. Despite some flaws, the law has the potential to raise awareness on domestic violence, provide remedies to victims and contribute to reducing the levels of gender related violence in our society.

Violence within a domestic setting takes many forms. Violence, which if it had occurred in a public place would be condemned, has in many cases gone unnoticed because it took place within the context of a family. Young boys may be victims of sexual and physical abuse. Elderly family members are vulnerable and, in some cases, husbands are abused by their wives. Domestic servants are also at the receiving end of violence. Yet, the available research suggests that the majority of victims of violence within the household and in the context of intimate relations are women and girls. In many cases domestic violence occurs between persons who have previously had a fulfilling or a productive relationship.

The law and domestic violence
Legislating against domestic violence has been in the air for many years. Women’s activists and intellectuals in Sri Lanka have been discussing various models for over 10 years and in 2000 a prominent women’s group, the Women & Media Collective, initiated an exercise to put in place a law. In 2001 the Ministry of Justice released a draft law and this process has now culminated in the new law on domestic violence.

Under the new law a person who has been at the receiving end of an act of domestic violence or fears that such an act may be committed could apply to the Magistrate’s Court for an Interim Order or a Protection Order. An Interim Order or Protection Order prohibits a person from committing an act of domestic violence. Four main types of protection are offered by the new law: an ‘Interim Order’ where there is an imminent danger of harm and an urgent need to ensure the safety of the victim; a ‘Protection Order’ as a medium to long term guarantee against violence; monetary and other assistance and access to the family home in some cases; and prosecution where the Interim Order or Protection Order is breached. In addition the Magistrate may order that a social worker or family counsellor monitor the Protection Order or order that the parties undergo counselling or other forms of therapy.

Two types of procedure are envisaged in the new law. First, in those circumstances where there is an imminent danger of harm to the victim and the safety of the victim is at stake, the Magistrate is required to issue an Interim Order immediately and prior to an inquiry. A fuller inquiry must then be held within 14 days at which both the victim and alleged abuser will be heard. Where there is no urgency and the safety of the victim is not in issue, the court must then fix an inquiry within 14 days of the complaint. Where the court is satisfied on hearing both parties and any other evidence, that it is necessary to issue a Protection Order to prevent the commission of an act of domestic violence and to ensure the safety of the victim, such a Protection Order must be issued.

The Magistrate may also make other orders. This includes preventing the abuser from visiting the victim’s place of employment or school. It also includes the power to exclude the abuser from the family home or a part of it, and an order to prevent the sale of the family home. The Magistrate may also order that the victim be provided with monetary or other assistance to enable him or her to go on with their lives with the least possible disruption.
Where the respondent breaches the terms of the Interim Order or the Protection Order, he or she could be convicted after a summary trial before a Magistrate.

The flaws
The law’s biggest flaw is the lack of a proper definition. According to the law domestic violence means all those offences in Chapter 16 of the Penal Code and ‘Emotional Abuse’. Chapter 16 offences include ‘Grievous Hurt’, ‘Hurt’, ‘Wrongful Restraint’, ‘Wrongful Confinement’, ‘Criminal Force’, ‘Assault’, ‘Rape’ and ‘Murder’. Emotional Abuse is defined to mean a pattern of cruel, inhuman, degrading or humiliating conduct of a serious nature.

Using such a bizarre method to define domestic violence is likely to affect the impact of the law. The objective of a law on domestic violence is not only to provide a remedy to a victim, but also to help in raising awareness and to provide a legal tool for educational activities on domestic violence. Defining domestic violence in such a complicated manner is likely to impact on this aspect of the law.

The other major limitation is the refusal of the law to allow third parties to petition the court on the victim’s behalf. Police Officers are the only third party allowed to petition the court. Given the attitude of the police to gender related violence this provision is unlikely to be of any importance. In the case of a child however, a representative of the National Child Protection Authority (NCPA) or the child’s parent may bring an application.

Access to justice in today’s context clearly includes laws which can be understood by the ordinary person. This is a further area in which the law could have been substantially strengthened. The new law will be used by women’s groups and human rights groups, many of whom are not schooled in legal interpretation. The Prevention of Domestic Violence Act unfortunately is bound to stretch the interpretation capacities of most of these ‘non-lawyers’.

One part of a larger strategy
Of all forms of violence against women, domestic violence is perhaps the most difficult to respond to. The law is only one part of a larger strategy to respond to violence against women. Shelters, good counsellors and a change in public attitudes are even more important. For women’s groups and human rights groups one challenge is to look at how the new law could be integrated with other efforts aimed at eliminating violence based on gender.

The writer teaches and writes on law and human rights. This article is from Prabodhini, the gender programme of the National Peace Council

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