Complainants in domestic violence cases can apply directly to the court for protection orders without having to go to the police, which is ideal in instances where they may be experiencing difficulty with law enforcers, or where a lack of trust in the force may exist.
This disclosure was made by Principal Magistrate Sherdel Isaacs-Marcus, during a media sensitisation forum held last month on the importance of providing fair, balanced and accurate reportage on domestic and sexual abuse cases.
In the business of administering justice, the media is just one of the key stakeholders in the partnership for achieving protection of human rights. Others she said, are the judiciary, the police force, probation officers, and non-governmental organisations, among others.
In order to achieve the aims of the Domestic Violence Act, the magistrate said it is important that all stakeholders be made aware of the requirements of the law and its continued sensitisation.
According to Magistrate Isaacs-Marcus, victims of domestic violence have available to them two avenues of initiating proceedings before the magistrates’ courts.
In the first instance, she explained that such persons can either make an application under the Domestic Violence Act, which is quasi-criminal, and which yields remedies that are primarily civil in nature.
The next option she said, is for them to lay their complaints before the police station, which would then pave the way for the police to institute charges under the Criminal Law Offences Act, the Summary Jurisdiction Offences Act, or the Sexual Offences Act, as the specific case may warrant.
Under the Domestic Violence Act she shared, victims can go directly to the Magistrate’s Court.
Persons who can apply for protection orders, she said, are persons associated with the respondent—this may include a person who is/or was married to the respondent, is/was cohabiting with the respondent, is/has engaged in an intimate relationship with the respondent, lives together in the same household with the respondent, are relatives, agreed to marry each other (not a child under the age of 16), and not a person with a mental disability.
The application she said, must be made by a gazetted probation officer or by a family member, while noting that a police officer can also make such an application on behalf of the child.
A child under the age of 16 she said, can only apply if he/she satisfies the court that they are of “sufficient understanding.”
In addressing the procedure for getting before the magistrate, Isaacs-Marcus said that persons can apply for protection orders by visiting any of the magistrates’ courts, the office, or wherever the court is sitting under the districts.
She said that the applicant must provide the clerk of the court with information regarding the conduct of the accuser. In the alternative, she said that persons can approach the Legal Aid office or an attorney who can file for a protection order at the court registry—usually with an affidavit in support.
Participants at the forum were told that the clerk at the Registry would then prepare the documents based on information provided by the complainant and the matter can then be called before a magistrate on the said day, or the very next.
She said that once the magistrate is satisfied, having listened to the applicant or examined the affidavit provided, the magistrate can then grant an interim order in the absence of the abuser.
When it comes to the need for service, however, Magistrate Isaacs-Marcus said that the abuser must be personally served with the documents, through which he is given notice of the hearing.
She said it is common practice that the complainant would accompany the police to effect service. If this is, however, not possible, she said that the court can make an order for substituted service.
At the second court hearing, the magistrate explained that if the court is satisfied of service, it can proceed in the absence of the abuser or issue an arrest warrant for that person.
The matter will then be called for hearing before the magistrate in the presence of both parties.
During the trial, she said that the court thereafter, once satisfied on a balance of probabilities that the abuser would have committed the abuse complained of, would then consider a number of factors.
For one, she said that steps would be made to ensure the health and wellbeing of the complainant and any children and that accommodation needs are satisfied, as well as to determine any hardships which may be caused to the abuser, the income, assets or financial obligations of both abuser and victim, as well as other circumstances.
In this process, she said that the court would often request the report of a probation officer.
Having heard the matter, she said that there are several orders which a court can make, including restraining the abuser from verbally and/or physically abusing and/or threatening the applicant or maliciously damaging his/her property.
Orders, she said, can also be made restraining the abuser from persistently following the victim or otherwise communicating with the victim in any other form whatsoever.
The magistrate noted that the court can also prohibit the abuser from using fear or emotional injury.
Magistrate Isaacs-Marcus recalled that in one case, a man bundled his wife’s clothing into a bag bearing her name and dumped it at the main entrance of her place of work where her fellow colleagues passed.
This, she noted, was intended to cause severe embarrassment and emotional injury.
In another case, the magistrate shared that the abuser threatened suicide if the complainant did not comply with specific requests made.
She said that a court can also prohibit a respondent from going within a specified distance of the complainant, whether be it their home or place of work, or harassing or psychologically abusing the victim.
Among other steps, the magistrate said that the court can also order the abuser out of the home, leaving the complainant and any children to remain. This, she said, may be necessary for the protection of the applicant and the best interest of the children.
She said that the court can also make an order for the abuser to contribute to the rent as is deemed fit.
Once the case has concluded and the appropriate order is made, Magistrate Isaacs-Marcus said that the magistrate must then explain to the parties the contents of the order, its duration, consequences for a breach and how that order may be changed.
In cases of a breach, she informed that a victim can visit the nearest police station and make a report, which will then lead to charges being laid against the abuser for the breach of the domestic violence order which the court would have made.
She said that the penalty for the breach is a fine not exceeding $10,000, in default of imprisonment.
Magistrate Isaacs-Marcus highlighted the fact that protection orders can at times amount to being “just paper orders,” and so stressed the need for resources to support and enforce those orders.
Citing a case which emanated from the Albion Magistrate’s Court in the matter of Sabrina Lakhan and Ramesh Ramdeen, Magistrate Isaacs-Marcus recalled that Magistrate Renita Singh had made a protection order under the Act.
She said that the victim, after securing that order, went back to her home to retrieve her belongings and was killed in the process, while Ramdeen thereafter committed suicide.
It is because of such unfortunate occurrences she said, that resources for the effective enforcement of such orders are to be made available.
Against this background, the magistrate made it clear that once the order is made by the court, the abuser should not be encouraged to go back into the home unless the complainant returns to the court to seek permission for the order to be changed.
For proceedings initiated under the Criminal Law Offences Act, the magistrate reminded that both custodial and non-custodial sentences may be imposed.
On this point, she said that the court has concurrent jurisdiction by which it can hear— at the same time, or one after the other on the same day— a matter under the Domestic Violence Act, as well as under the Criminal Law Offences Act, where the respondent is charged by police for an incident arising out of the same conduct or circumstances on the same day.
She said it is not a case of double jeopardy.
Of note, Magistrate Isaacs-Marcus pointed out that while applicants under the Domestic Violence Act were predominantly females, more male applicants are now seeking protection orders.
