Issue link: https://maltatoday.uberflip.com/i/1315450
8 maltatoday | SUNDAY • 6 DECEMBER 2020 INTERVIEW The CoE's group of experts on domestic violence, GREVIO, has observed a 'serious lack of training when it comes to sen- sitivity and awareness' when it comes to dealing with domes- tic violence cases at law. From your own experience, do you agree with that assessment? Yes. It was much worse in my early days with the police, to be fair. I joined the Force in July 1997: and I can't deny that I've seen some progress since then. This, too, was acknowledged in the same report. But it is also true that a lot still needs to be done. Apart from my experience within the Police, as a Child Advocate I have also observed how the law-courts – especial- ly, the family court – functions in practice. I'm not saying this gives me any 'privileges', or any- thing; but at least, I can see gaps, that maybe others will not be able to see. And I do see certain gaps in the system. This is partly because our procedures are still based on the criminal justice standard of 'beyond reasonable doubt'. It requires evidence – ideally, the best evidence available – to prove guilt in a court of law; and that can make things very hard for the victim to step forward. Applied to domestic violence cases, it is sometimes not even possible. In, for example, a case of verbal abuse: how you can prove a crime, if you don't have a recording…? But surely the principle of 'in- nocent until proven guilty' has to be maintained in domestic violence cases as well? Yes; but the nature of the crime is such that the existing procedures – though they work well in another context – do not necessarily apply. In Maslow's hierarchy of needs, for instance, the bottom tier of the pyramid – i.e., the most fundamental vital needs – consists of 'food', 'shelter' and so on. The very basics. But the second tier is 'secu- rity': feeling safe in your own body. If the victim doesn't even have that – the second most vi- tal human requirement – how can they be expected to also have the strength to collate and present the sort of evidence re- quired to prove guilt in a crim- inal court? In civil law, however, it's a dif- ferent story. The family court, for instance, operates on the principle of 'balance of proba- bilities'. Recently, there was a case in Gozo – a civil case – involving mostly verbal domestic vio- lence. A father was accused of consistently berating his eldest daughter, to the point where the victim suffered severe psy- chological effects. As it hap- pens, she won the case, and was awarded damages… though it is now at appeals stage. But it was a civil case, not a criminal one. Had the victim filed criminal charges, the same case would almost certainly have been thrown out of court. How can you 'prove' – in the traditional sense – years of con- sistent verbal abuse…? And very often, the first failure of the system is precisely at that point. Access to justice. When reporting a case of domestic vi- olence, the first response – by the police, and even sometimes by lawyers – is to say: 'Sorry, but you don't have a case here. How can I be expected to proceed, without evidence?' And this, in turn, is a form of 'gaslighting', in itself… The term 'gaslighting' is most often used to describe the abusive, domineering way in which perpetrators (in this case, of domestic violence) convince their victims that the abuse isn't happening at all… causing them to question their own sanity in the process. Yet you seem to be suggesting that it is actually the legal system itself (as opposed to the per- petrator) that is doing the gas- lighting… Yes. It pains me to say this, but if the system itself doesn't recognize that a crime has been committed… wouldn't the vic- tims themselves start doubt- ing it, too? Besides: in practical terms, victims of domestic vio- lence don't have that many op- tions at their disposal to begin with. Often, the most they can do is simply leave home… on- ly to afterwards say, 'maybe I should have don't this, or that…' So everything is stacked against them from the start. And it doesn't help that the legal struc- tures only make things harder, instead of easier. What we need to do is look in- to ways of making it easier for victims to have access to justice: in order to protect their own safety, within the criminal jus- tice system. And I'm not saying it's 'easy': it has to be done with- out lowering standards, or com- promising the basic principles of justice. Truth be told, nobody has ever found the perfect solu- tion. But this is where sensitivity comes in. If we were to increase the system's sensitivity towards victims… that, alone, would al- ready be a great step forward. In practical terms, however… what can actually be done to achieve that? I would say the change that is needed is more cultural, than structural. From a legal frame- work point of view, a lot of the changes have already been made. The structures them- selves are already in place: we have a Commission for Domes- tic Violence; a dedicated branch of the Police Force… it's all there, on paper. But… is that enough? Let me give another example. Environ- mental law. Malta is signatory to the UN's Aarhus Conven- tion, in which 'access to justice' is based on three pillars. The first involves creating all the necessary structures to ensure that environmental crimes can be prosecuted at law – and this part is already covered, in the context of domestic violence. Then there's access to infor- mation: which is also, up to a point, covered by the principle of disclosure… e.g., that the ac- cused has the right of full access The system is failing domestic Raphael Vassallo rvassallo@mediatoday.com.mt A recent Council of Europe report highlighted serious shortcomings in Malta's judicial approach to domestic violence cases. Dr MARY MUSCAT – former police inspector, now a lecturer at the Faculty of Law – outlines why the criminal justice system often falls at the first hurdle