MCO Linked Domestic Violence – Protection For The Victims Of Domestic Violence
It has been more than a month since the implementation of the Movement Restriction Order (“MCO”) in Malaysia. At this point in time, there are increasing cases of domestic violence. According to the record of the Royal Malaysia Police, there are a total of 409 cases of domestic violence from 18.3.2020 until 21.4.2020. This unfortunate phenomenon is not only happening in Malaysia but in other countries as well, such as China, France, United States and Australia where there is an increasing number of reports on domestic violence during the lockdown. As such, if you are the unfortunate one, what should you do in such a situation?
Make a Police Report
Domestic violence is not a private family matter but is a crime under the Penal Code. As defined under Domestic Violence Act 1994 and Domestic Violence (Amendment) Act 2017, Domestic Violence includes the commission of the following acts by a person against his or her spouse; a child or any other member of the family, whether by himself or through a third party:-
· threatening to cause physical injury;
· causing physical injury;
· sexual abuse;
· confining or detaining the victim;
· emotional and psychological abuse; etc.
According to the record of the police, most domestic violence cases involve causing physical injury or threatening. Upon receiving the report from the complainant, the police will investigate the case under Section 323 to Section 326 of the Penal Code for voluntarily causing hurt (depends whether the injury is minor or grievous hurt, with or without dangerous weapons) or Section 506 of the Penal Code for criminal intimidation. After the investigation and upon satisfied that a crime has been committed, the abuser will then be charged in the Court.
For the case of causing hurt, under Section 323 to Section 326 of the Penal Code, if a person is found guilty, in the most serious case, shall be punished with imprisonment for a term which may extend to 20 years, and shall also be liable to fine or to whipping. Section 326A of the Penal Code further enhances the punishment for the term of imprisonment by twice in cases of causing hurt by a spouse.
While for the case of criminal intimidation, under Section 506 of the Penal Code, if a person is found guilty for criminal intimidation, in the most serious case, shall be punished with imprisonment for a term which may extend to 7 years or with fine or with both.
It is always advisable for the victim of domestic violence to make a police report immediately. The MCO will not restrict the victims of domestic violence to seek help and protection in the event their safety is at risk. The police report also constitutes essential evidence if there is any matrimonial proceeding or to obtain a Protection Order, which is discussed below.
Obtain an Emergency Protection Order (“EPO”)
The EPO is provided under Section 3A of the Domestic Violence (Amendment) Act 2017. Under this section, the victim of domestic violence may seek immediate protection against the abuser from the Social Welfare Department (JKM). As this is an emergency application, the police report or court hearing relating to domestic violence is not required. After the application is made, the EPO shall be issued by a social welfare officer within 2 hours. However, it must be noted that the EPO is only valid for 7 days to provide temporary breathing space for the victim to plan for his/her next step.
If the abuser contravenes the EPO, he/she shall be guilty of an offence and shall be liable to a fine not exceeding RM2,000 (not using violence) / not exceeding RM4,000 (using violence) or to imprisonment for a term not exceeding 6 months (not using violence) / not exceeding 1 year (using violence) or to both.
Obtain an Interim Protection Order (“IPO”)
The IPO is provided under Section 4 of the Domestic Violence 1994, which is a Court order to protect the victim from being abuse by the abuser throughout the police investigation. Prior to obtaining an IPO, the victim is required to make a police report relating to domestic violence. Once the police initiate investigation, the victim can proceed to apply for IPO in the Court. The IPO is valid throughout the police investigation. It must be noted that the IPO shall cease upon completion of an investigation by the police or upon the institution of a criminal proceeding in the Court against the abuser. If the abuser is being charged in the Court, the victim shall then proceed to apply for a Protection Order (“PO”).
If the abuser contravenes the IPO, he/she shall be guilty of an offence and shall be liable to a fine not exceeding RM2,000.00 (not using violence) / not exceeding RM4,000 (using violence) or to imprisonment for a term not exceeding 6 months (not using violence) / not exceeding 1 year (using violence) or to both.
Obtain an Injunction
An IPO or PO would necessarily depend on the police’s actions (initiation of investigation or institution of criminal proceedings). It is worth noting that not all cases of domestic violence involve physical injury or intimidation, is a seizable offence that required immediate investigation. There are also cases that the victim is suffered from distress and annoyance due to the mischief conduct, emotional and psychological abuse from the abuser where the police can take no action. For cases which is non-seizable offence, there is no immediate need for the police to investigate unless the deputy public prosecutor issues an order to investigate. In such circumstances, the remedies under the Domestic Violence Act 1994 would be too slow to provide immediate protection to the victims in case of emergency.
In this situation, the victim shall apply to the Court to seek immediate Court order for an injunction to restrain the abuser from continuing the abusive act.
A breach of an injunction amounts to a contempt of Court and the party in breach may be subjected to committal proceedings.
In the time of crisis, the nation is aware that women are more vulnerable and at higher risk of experiencing violence and abuse. As such, for those who are a victim of domestic violence, please do not hesitate to step out and take appropriate action.
Although our movement is restricted, the current circumstance does not stop us from providing immediate help to those who are in need. Please do not hesitate to contact us.