The Protections Against Domestic Violence Survivors Under The Penal Code In Malaysia

Abstract

Domestic violence is a serious offence and more common than most people realize. This problem is often seen as a gender issue where women are more prone to be the victims of assaults compared to men. The victims suffered multiple forms of abuse but psychological abuse remains as the most common form of domestic violence. In combatting this problem, Malaysia has passed the Domestic Violence Act (Act 521) in 1994 (DVA 1994). The DVA 1994 must be read together with the Penal Code (Act 574) (PC) or any other written law involving offences relating to domestic violence. The objective of this paper is to analyse the legal protection available to domestic violence under the PC. Thus, provisions relating to offences against person under the PC will be examined. victim where offences where force or violence is threatened or directed against a person under the PC namely Section 351 (assault), Section 350 (criminal force), Section 319 (hurt) and Section 320 (grievous hurt). By applying a descriptive and analytical approach in data analysis, the study found that the survivors of domestic violence in Malaysia are well protected under the PC which becomes the platforms for them to bring the perpetrator to the court. However the offences and punishments available are subject to the degree of injury suffered and evidence produce by the victims. Unfortunately the legal protection becomes fertile, if the survivors refuse to bring the perpetrators to the court due to some barriers faced by them.

Keywords: Domestic ViolenceAssaultCriminal ForceHurt and Grievous Hurt

Introduction

Domestic violence was not an international issue 28 years ago when this it was merely treated as a private matter between partners, husbands and wives (Shuib et al., 2013). Today it is considered as everyone’s problem (Women’s Aid Organisation, 2017). The domestic violence becomes a crucial problem to the society all around the world and a traumatic episode which is influenced by complex social, cultural, and psychological factors (Ghani, 2014). Generally “domestic violence” is described as a pattern of abusive behaviour in any relationship, committed by one party to gain or maintain control over another. It can be physical, sexual, emotional, economic, or psychological actions (or threats of actions) that impacts another person. This can happen to anyone regardless of race, age, sexual orientation, religion, or gender, and can affect people of all backgrounds and education levels (Buang, 2017). But this problem is often seen as a gender issue where women are more prone to be the victims of assaults compared to men.

By passing the Resolution 49.25, World Health Assembly had acknowledged violence (including violence against women) as a serious public health issue and called for urgent actions by governments and health agencies (World Health Organization, 1996). World Health Organization reported that 35% of women worldwide have experienced some form of domestic violence by their intimate partner in their lifetime (World Health Organization, 2016). In Malaysia, a 2014 survey revealed that nine percent of married women in Malaysia have experienced the same (Women’s Aid Organization, 2017). Even though domestic violence is often seen as a gender issue where women are more prone to be the victims of assaults compared to men but recently according to Women’s Aid Organization report, from January 2014 to January 2016 there are 2,651 cases involving male victims (Buang, 2017).

Problem Statement

For over the past two decades Malaysia has made significant advances in protecting survivors of domestic violence through laws and policies (Women’s Aid Organization, 2017).

The Domestic Violence Act 1994 (DVA 1994)

The Domestic Violence Act 1994 (DVA 1994) was introduced in 1994 but only implemented two years later. The passing of the DVA 1994 (and its subsequent implementation in 1996) was sent a clear message that domestic violence is not just a family matter, but is a crime (Women’s Aid Organization, 2017). The DVA 1994 has gone through few amendments, firstly in 2006 and recently in 2012 by the Domestic Violence (Amendment) Act 2012 (Act A1414). The main purpose of the DVA 1994 is to provide legal protection in situations of domestic violence and matters incidental thereto. In general, The DVA 1994 recognizes all forms of domestic violence as sizeable offences (Section 18 A DVA, 1994), guarantees protection for the survivor (Sections 4 , 5 , 6 , 7 , 8, 9, 12, 12A, 12B, 13, 14, 15, 16, 17 and 17A, DVA 1994) as well as provides suitable support for them (Section 10 and 11 DVA, 1994). The DVA 1994 was designed to grant both civil and criminal remedies for the victims of domestic violence, irrespective of race, religion, cultural and family background differences (Soh, 2010) but the Act does not recognize domestic violence as crime per se (See & Essau, 2012). In order for these acts to be categorised as a crime under the DVA 1994, the legislation would have to be read together with the provisions of the Penal Code (Act 574) (PC).

Under the DVA 1994, the domestic violence survivor can take legal action against any act which causes physical injury or placing the survivor in fear of physical injury; compelling the survivor by force or by threat to engage in any conduct, sexual or otherwise; destruction or damage of property; confining or detaining the survivor against her will; physical and psychological abuse such as put-downs and insults (section 2 , DVA 1994) perpetrated against women by their spouse, former spouse or family members (Mahdzir, Rahman, Rahim & Ismail, 2016). To commence the legal action against the perpetrator, the domestic violence survivor must lodge a police report. The perpetrator may be charged under the PC per se for causing personal injury to the wife where force or violence is threatened or directed against a person under the PC.

In practice, all the cases of domestic violence in Malaysia are heard by ordinary courts and subject to the same procedures as other criminal cases (Sambo & Abdulkadir, 2012). This has serious implications when the DVA 1994 has to read with the Penal Code where the domestic violence survivors would have to invoke on the provisions for assault in the latter in order to criminalise the act. It is also necessarily to invoke the Criminal Procedure Code (CPC), which governs police investigations in domestic violence cases (Hassan, 2009). Further, the issue on the legal enforcement of the DVA 1994 still focuses more on physical injury rather than non-physical form of violence. The power of arrest by police officials is still based on any physical injury caused by the perpetrator. Section 7 (1) of the DVA 1994 states:

“Where the court is satisfied that the person against whom a protection order or interim protection order is made is likely to cause actual physical injury to the protected person or persons, the court may attach a power of arrest to such protection order, as the case may be.”

For this reason, victims who suffer non-physical form of abuse will face difficulties to prove their case since only physical evidence is considered by the court.

The Penal Code (Act 574)

The PC grades the non-fatal offences against the persons by reference to two primary considerations: the nature and degree of harm that is caused and the degree of culpability (Yeo, Morgan & Cheong, 2009). In criminalizing the perpetrator, the actus res and men res are very important. The degree of injury suffered by the domestic violence survivors will determined the kind of charges and punishment to the perpetrator. The 2012 amendment further elevates the categorization of domestic violence to a seizable offence (crimes for which the perpetrator can be arrested without a warrant). Under the Criminal Procedure Code, the police must first determine the nature of the offence, i.e. whether it is seizable or non-seizable. The police are only required to conduct immediate investigations in cases of seizable offences. Prior to the amendment, victims of domestic violence would have to file a private summons in a Magistrate Court themselves to prosecute the perpetrator as domestic offence is categorized as non-seizable offence (Rahman, Ismail, Rahim & Mahdzir, 2017).

This rule posed significant problem to the victims and only very few would go through this process as it is time-consuming and costly. As such, the amendment is most welcomed and has solved one of the biggest hurdles faced by the victims and law enforcement authorities.

A 2014 survey revealed that 40% of domestic violence victim’s experienced domestic violence for more than five years; 41% of between one and five years and 19% less than one year. This means 81% could be classified as having faced sustained and prolonged violence at home. According to police statistic, a total of 57,519 cases of violence against women were reported since 2010 until March 2017 (Borneo Post, 2017) but the number of cases brought to court sadly not as much (Mahdzir, Rahman, Rahim & Ismail, 2016).

Between year 2013 to 2015, a total number of 13,944 reports were lodged of which 4,612 (33%) were charged in court. However, only 658 (14%) resulted in a conviction (Rahman, Ismail, Rahim & Mahdzir, 2016) as follows:-

Research Questions

This paper attempts to answer the following research question:

• What are the legal protections against the domestic violence survivors under the PC in Malaysia?

Purpose of the Study

The purpose of this paper is to analyse the legal protections for domestic violence survivors in Malaysia with reference to the PC.

Research Methods

This paper is library based by using a descriptive and analytical approach in data analysis.

Findings

Conclusion

It is submitted that the DVA 1994 and Penal Code (Act 574) are a complete set of laws in curbing the domestic violence in Malaysia. The changes implemented into the laws from time to time were made in view of national security to safeguard public interest and afford better protection to victims of crime. The influence of many factors such as the patriarchal society, religious matters and the cultural dimension need to be considered while dealing with this problem. As such, effective collaboration between all stakeholders such as police, welfare, health and judicial services is critical in ensuring the victims get the assistance needed and more importantly, bring the perpetrators to justice. Indeed, domestic violence victim’s access to justice and protection is fundamental in combating the menace.

Acknowledgments

This paper is based on the findings of the research project under the Fundamental Research Grant Schemes (FRGS) Ministry of Higher Education Malaysia /SO Code 1305/Research Title: Mahkamah Keluarga: Model Baharu Dalam Menangani Jenayah Keganasan Rumahtangga Terhadap Wanita.

References

1. Arshad, M. A. H. & Soh, C. R. (2012). Establishment of a Unified Family Court in Malaysia: Implication on the National Family Policy, in Zuhairah Ariff and Norliah Ibrahim (ed). Contemporary issues in Matrimonial Property. Malaysia: IIUM Press.
2. Borneo Post. (2017). 57,519 cases of violence against women reported since 2010. http://www.theborneopost.com/2017/04/26/57519-cases-of-violence-against-women-reported-since-2010/.
3. Buang, S. (2017). Better protection for domestic violence victims. 2 May 2017. News Strait Times. Retrieved at https://www.nst.com.my/opinion/columnists/2017/05/235716/better-protection-domestic-violence-victims.
4. Domestic Violence Act (Act 521).
5. Ghani, A. M. (2014). Exploring Domestic Violence Experiences From The Perspective of Abused Women In Malaysia. Thesis. Loughborough University. United Kingdom.
6. Hassan, M. H. (2009). Is domestic violence a crime? http://www.malaysianbar.org.my/general_opinions/comments/is_domestic_violence_a_crime_.html.
7. Mahdzir, N., Rahman, A. A., Rahim, A. A. & Ismail, C. T. (2016). Domestic Violence Court: A New Model to Combat Domestic Violence Against Women In Malaysia. UUM Journal of Legal Studies (JLS) Vol.7, 92-101.
8. Munir, A. B. & Abdullah, N. A. (1995). Domestic Violence and The Need For A Family Court. 4 Current Law Journal lxxv (Nov), p.lxxxi.
9. Othman, S. & Mat, A. N. A. (2008). Domestic violence management in Malaysia: A survey on the primary health care providers. Asia Pacific Family Medicine.7(2):Retrived from https://doi.org/10.1186/1447-056X-7-2.
10. Penal Code (Act 574) Malaysia.
11. Rahman, A. A, Ismail, C. T., Rahim, A. A. & Mahdzir, N. (2017). Combating Domestic Violence in Malaysia: Issues and Challenges. Man in India. 97(24):54-64.
12. Ranchhoddas, R. & Thokore, D. K. (1982). The Law of Crimes. Sweet & Maxwell Ltd. England.
13. Sambo, A. O. & Abdulkadir, B. A. (2012). “Legal Approach To Domestic Violence In Malaysia And Nigeria: An Expository Study Of The Experience In Selected Jurisdictions” [2012] 1 LNS (A) xv .
14. See, C. M. & Essau, C. A. (2012). Overview of Violence and Abuse in Malaysia. In Angela Browne-Miller (Ed.), Violence and Abuse in Society: Understanding the Global Crisis, 251-264, California: ABF-CLIO, LLC.
15. Shuib. R., Endut, N., Ali, S. H., Osman, I., Abdullah, S., Oon, S. W, Ghani, P., Prabakaran, G., Hussin, N. S. & Shahrudin, S. S. H. (2013). Domestic violence and women's well-being in Malaysia: Issues and challenges conducting a national study using the WHO multicountry questionnaire on women's health and domestic violence against women. Procedia - Social and Behavioural Sciences 91:475 – 488. doi: org/10.1016/j.sbspro.2013.08.445.
16. Soh, C. R. (2010). The Cultural and Legal Perspectives on Wife Battering in Malaysia The Law Review 613-622.
17. Wangsawijaya, S. (2013, June 11). Butakah Kita Terhadap Kematian Akibat Keganasan Rumahtangga, Utusan Malaysia. Retrieved from http://ww1.utusan.com.my/utusan/Forum/20130815/fo_01/Keganasan-rumah-tangga-serius
18. Women’s Aid Organisation. (WOA). (2015). Working together: Case Studies In Domestic Violence Response. Petaling Jaya. Malaysia.
19. Women’s Aid Organisation. (2017). Perspective on domestic violence: A coordinated Community Respond. Petaling Jaya:Malaysia.
20. Yeo, S., Morgan, N. & Cheong, C. W. (2009). Criminal Law in Malaysia and Singapore: A casebook Companion. Malaysia: LexisNexis.