Domestic Violence against Women in Malaysia

It is a sad but undeniable fact that home is not always a safe haven and that once loving relationships can turn violent. A recent statistical study by the World Health Organisation in 2013 found that more than one in three people are victims of sexual or physical violence.

Domestic violence encompasses many forms of violence involving different parties, including partners, parents, children and the extended family. Domestic violence refers to a wide range of acts, from verbal abuse to threats to marital rape and murder, that take place in the privacy of an intimate relationship, often in the marital home. In other words, domestic violence involves people who know each other, not ‘strangers’.

Domestic Violence Laws in Malaysia

In Malaysia, there are a number of laws that protect the victim from domestic violence. The primary one is the Domestic Violence Act 1994 (“DVA”). Prior to DVA, any action against an abuser was usually through a charge under the Penal Code in a criminal case or a court order for a restraining order. DVA is made conditional by Section 3 of the Penal Code for a charge to be brought against the offender. This means that any complaint of domestic violence made by a complainant must be investigated by the police under both DVA and the Penal Code.

Who is protected?

According to section 5 of the DVA, protection orders are designed to protect the complainant, a child or an incapacitated adult from domestic violence.

The DVA also extends protection to “de facto spouses,” couples who have performed a religious or customary marriage ceremony but have not registered the marriage. However, the law does not apply to unmarried couples.

Definition of Domestic Violence under DVA

The DVA interprets the term domestic violence broadly. It includes the following terms:

• the attempt to cause fear or physical injury
• causing bodily harm
• compelling by force or threat to perform sexual acts
• confining or holding the victim against her or his will
• causing damage to the property belonging to the victim coupled with intent to cause distress or annoyance to them
• psychological abuse and emotional harm to a spouse
• causing the victim to become delusional by using any intoxicating substances without the victim’s consent or if the consent was given, the consent was unlawfully obtained. If the victim is a child, then the consent will not be a question to be determined by the enforcement officer

Complain of Domestic Violence

1. Complaints of domestic violence may be made to an enforcement officer in any district where the complainant resides OR where the offender resides OR where the alleged violence occurred OR where the victim is temporarily located. Section 2 of DVA defines an “enforcement officer” as a police officer or a social welfare officer.
2. The amended 2012 Act introduces Section 18A, which makes all domestic violence cases to be seizable offences. Seizable offences are described as serious crimes in which the offender uses “dangerous weapons or means” to cause injury or serious bodily harms (hurt that causes permanent loss of vision or hearing, broken or dislocated bones)
3. Due to the classification as seizable offences, police can begin investigating immediately upon receiving a domestic violence report.
4. To assist the investigation, the complainant or victim must describe the details of the abuse including what happened, where it happened and how it happened.
5. The police will conduct a further investigation based on the report that has been filed. Evidence and witness statements will be collected and depending on the evidence, the police may refer the case to the prosecutor’s office which will decide whether to file charges against the perpetrator.
6. If the perpetrator is charged in court, the trial will begin to determine whether he or she is guilty or innocent of domestic violence.

There are two types of protection orders designed under DVA which are emergency protection orders and interim protection orders.

Emergency Protection Order (EPO)

The current amended DVA allows the Director General under Part 1A to authorize in writing a welfare officer to issue an EPO if the defendant intentionally or knowingly places or attempts to place the victim in fear of bodily harm or inflicts bodily harm on the victim by such act that is known or should have been known to result in bodily harm.

It is not necessary for the applicant to file a police report in order for the EPO to be issued. The EPO may be applied at the nearest social services agency known as Jabatan Kebajikan Masyarakat (JKM). Upon receipt of the application for an EPO, the authorized welfare officer may issue the EPO within 2 hours of the application. When issuing an EPO, the following orders may also be made;

• an order prohibiting the defendant from using domestic violence against the victim; or
• order prohibiting the defendant from inciting another person to commit domestic violence against the victim; or
• order prohibiting the defendant from entering the victim’s safe place, shelter, residence, shared residence or alternate residence.

Although neither a police report nor a petition for court protection is required for an emergency order, an emergency order is valid only for seven days from the date of its issuance and is enforceable only if a copy of the order has been served on the person against whom the order was issued.

Interim Protection Order (IPO)

IPO is an order issued while the investigation is ongoing and expires at the conclusion of the investigation, at which time the complainant must seek a protective order under Section 5 of the Act.

If the court determines that the complainant’s protection and personal safety are in jeopardy, the court may order one or more orders under Section 6(1) of the Act, which may be included in the protective order. Additional orders include the following:

1. the right of the protected person to reside exclusively in the home shared by the protected person and the defendant by excluding the defendant from the home
2. prohibiting the defendant from entering the residence of a protected person, which includes the protected person’s place of employment or school, or prohibiting the defendant from contacting the victim without the presence of a law enforcement officer or other person appointed by the court
3. permit the defendant to enter the common residence to retrieve his or her personal belonging but only in the presence of the law enforcement officer
4. require the defendant to avoid any written or telephonic communication with the protected person
5. permit the protected person to continue to use a vehicle he or she previously customarily used.

Section 6(1)(f) of the Act also gives the court greater discretion to issue any orders necessary to carry out and related to the above orders.

Since the introduction of the Act, many victims are aware of their rights and have better access to justice when it comes to crimes of domestic violence.

In summary, the government should make rigorous efforts to deal with the increasing number of domestic violence cases by promoting programmes such as support groups for victims, legal awareness programmes, education campaigns, and mass media campaigns to improve the current situation and reduce the number of domestic violence cases in this country.

Ultimately, any protective order under the Act is intended to protect a victim, child or incapacitated adult from being harmed by the perpetrator by ensuring that they are protected, treated and compensated in accordance with the Act.