Issue link: https://maltatoday.uberflip.com/i/712521
maltatoday, SUNDAY, 7 AUGUST 2016 4 News MIRIAM DALLI PROPOSED changes to the Do- mestic Violence Act will introduce 'State due diligence' which would allow victims to seek redress if the state fails to take reasonable steps in protecting them. The provision of state responsi- bility for domestic violence means that victims could hold state service providers accountable if they fail to take reasonable steps to safeguard victims. "As signatories to the Istanbul Convention, the State is obliged to prevent the occurrence of violence and to take immediate effective ac- tion when such incidents occur," lawyer Roberta Lepre, who is draft- ing the changes to the law, told Mal- taToday. "By incorporating this obligation into national law, we are providing victims with a right to seek redress against the State if this is not done. This legal obligation will ensure that State service providers take their ob- ligations even more seriously since victims can hold them accountable if they fail to do so." The government is also contem- plating an effective jail term for persons found guilty of domestic violence, as opposed to probation. The draft changes propose the introduction of moral damages for victims of violence, which would "tangibly acknowledge" the harm that victims faced and provide them with some form of reparation. "It would also serve to create an- other form of deterrent for offend- ers, who currently enjoy a sense of impunity. It is felt that this, to- gether with the proposed increased punishments for various offences, would serve to address our obliga- tion to punish offenders, as is re- quired by the Istanbul Convention, whilst also working towards more effective crime prevention by pro- viding an effective deterrent," Lepre said. She confirmed that the govern- ment was considering making the provisions of the Probation Act in- applicable to certain forms of vio- lence so that a person who is found guilty would have to face an effec- tive jail term rather than just proba- tion. A nationwide research study con- tracted by the Commission on Do- mestic Violence in 2011 surveyed 1,200 women: 6.5% of the respondents indicated that they had been beaten or physically mistreated since the age of 15; 4% indicated that they had been forced to have sex or to perform a sexual act when they did not want to, since the age of 15. The study also found that 11% of the respondents had thought of ending their life, at one point or another, with 12% of these women admitting to an attempt to take their life. A complete overhaul of the do- mestic violence legislation – which should be presented to parliament before the end of year – is meant to ensure stricter punishment and harsher penalties to perpetrators. The amendments are based on the Istanbul Convention on prevent- ing and combating violence against women, which Malta ratified in 2014, without updating various leg- islations. A report presented to parliament by the Social Affairs Commit- tee highlighted the main concerns voiced by victims, which included the lack of confidence that victims have in the police. The committee went on to recommend that police stations should be equipped with proper facilities; see if there are any witnesses who could be summoned in court and better training for the police on how to handle such cases. A recommendation was also made for the setting up of intervention centres where multidisciplinary teams could assist victims and offer them shelter in cases of emergency. Lack of protection remains one of the most salient concerns raised by violence victims, Lepre said. She explained that despite existing legal and practical measures, victims do not feel sufficiently protected, the reason being that weeks – if not months – pass before a court hear- ing is set and the victim can request a protection order. "If such a protection order is is- sued by the courts, it is often dif- ficult to enforce because its terms are too vague to be able to identify a breach. Therefore, what is being proposed is to introduce the avail- ability of emergency protection or- ders, which would be issued within 12 hours of the filing of a report, and thus provide a measure of immedi- ate protection for victims," the hu- man rights lawyer said. It is also being proposed to reduce the discretion of the Court with re- gard to whether a protection order should be issued, in a manner that makes the issuing of a protection order mandatory when a serious risk is identified, after a risk assess- ment would have been carried out. The changes to the Domestic Vio- lence Act propose that victims are provided with a Letter of Victims' Right, upon submitting a complaint. "This will help to ensure that vic- tims are immediately informed of the various rights and services avail- able to them and how to access such rights," Lepre said. For instance, a victim who may be discouraged from pursuing her case in court because of the perceived cost of legal proceedings would be immediately informed of her right to free legal aid and informed on how to request such free legal aid. Victims would also be informed of their legal right to free emotional support or psychological assistance. The letter, Lepre added, would also inform a rape victim that they are entitled to compensation from the State and how such a claim could be submitted. Rape will be redefined to better reflect a more current understand- ing of this heinous crime, which is based more on the lack of consent rather than violence. "Whilst recognising that case law acknowledges that violence can take the form of moral violence, this understanding does not necessarily filter down to the relevant profes- sionals who are sometimes reluc- tant in their approach towards vic- tims when there is a lack of evidence of physical violence," Lepre said. "With this updated definition it is hoped that professionals and the general public alike understand that sexual interaction, without freely- given consent, amounts to rape. Hopefully, this updated definition will lead to higher conviction rates for offenders." Victims may seek redress against State under proposed changes to domestic violence law