Introduction
The prevalence of domestic violence in all societies is widely known and becoming increasingly acknowledged. Regardless of region, race, colour or creed, violence that occurs between people categorised as being in “domestic relationship “is something that societies have recognised cannot be ignored. In order to address this issue the legislature in Sierra Leone has enacted the Domestic Violence Act 2007 a progressive piece of legislation which states that it is an “Act to suppress domestic violence and to provide protection for victims of domestic violence.”
The legislature of Sierra Leone has made a clear statement that domestic violence will not be tolerated and that the perpetrators will be brought to justice. Statutory obligations are imposed upon the police regarding the implementation and enforcement of the law.
The discretion of the investigator has been replaced with a duty that requires a prompt response by the officer to whom the complaint is made and provides the steps that must be taken.
The context in which this legislation arises is a country which was ravaged by civil conflict for almost 10 years. The human rights of victims often the most vulnerable individuals were violated and this legislation is part of the process of rebuilding the social infrastructure of society and the confidence of those who were victimised with impunity. The duties of those who enforce the law have been clearly set out lest there be any reluctance on the part of the police to act in these often sensitive situations.
Summary of provisions
Parliament?s intention being clearly promulgated we turn to the provisions.
The Act itself is short 23 sections in three parts.
? Sections 1-9 provides a definition of domestic violence and states that it occurs when the offender and victim are in or have been in a domestic relationship and definitions are provided of what a domestic relationship can be.
? Ss 10-19 detail provisions relating to Protection orders akin to non-molestation orders in the UK and Occupation orders. These can be free standing applications or they can be made within criminal proceedings either at the request of the applicant victim or of the courts own motion.
? Ss. 20-23 Make provision for settlement of cases out of court with the consent of the complainant provided that the offence is not in its aggravated form.
What constitutes Domestic violence and a domestic relationship?
Section 2 provides that it is an offence under the Act for any person in a domestic relationship to engage in any act of domestic violence: subsection 2 indicates that domestic violence means inter alia physical or sexual abuse, economic abuse, emotional, verbal or psychological abuse, harassment and intimidation. Section 1 defines the terms “abuse,” economic abuse” and an offence in “aggravated “form. The circumstances when the offence can be committed in its aggravated form are set out and include amongst other ways when a weapon is used; there is evidence of premeditation, failures to respond to warnings by the police, the court or any official body.
Section 2 (3) provides that the maximum sentence for domestic violence is 2 years imprisonment. Interestingly and surprisingly there is no enhanced sentence for the offence in its aggravated form, it is not clear whether this was a deliberate omission or whether the legislature intended to provide the maximum latitude to the judiciary when it come to sentence.
There is no guidance given in the statute to the judiciary as to where the thresholds should be regarding the offence simpliciter and the aggravated offence.
It will be interesting to see how the courts interpret the concepts of economic and psychological abuse and what evidence will have to be adduced to establish it to the courts satisfaction.
In Sierra Leone there still exists a strict corroboration requirement for sexual offences and this will impact upon the ability to prosecute allegations of sexual abuse.
The act criminalizes sexual offences that occur in marriage and in relationships that are akin to marriage.
A pre-condition for proving the offence is the establishment that there is a domestic relationship the statutory definition is wide covering all familial and marital relationship and people who live or have lived in the same house hold. Parties who have had a child together but have never co-habited are covered as are those living in care, public or private care institutions. There is a catch all subsection whereby the court can determine that a relationship is a domestic relationship based upon the length of time the parties spend together, the place where that time is spent, the manner in which that time is spent and the duration of the relationship.
Section 4 of the act provides that Domestic violence may be result from a single act or a series of acts trivial in themselves but when looked at together amount to a pattern of behaviour.
Sections 6 provides that an officer shall respond promptly to a request for assistance and shall offer such protection as required.
Section 7 specifies the investigatory action that must be taken, including interviewing of witnesses assisting in the obtaining of medical treatment and retrieval of personal belongings where applicable.
Section 20 provides that where an offence is not in the aggravated form if the complainant expresses the desire to settle the case out of court, the court shall refer the case for alternative dispute resolution; the court can also initiate this if the complainant consents. Where a case is so referred the complainant and the offender shall be referred to counselling, the offender where necessary can receive psychiatric help and a probation officer can be appointed to provide a report.
Subsection (3) provides that if after a report is provided the offender engages in a further act of domestic violence he shall be brought before the court and prosecuted.
Conclusion
The Sierra Leone Law on domestic violence provides a comprehensive definition of domestic violence and potentially criminalizes behaviour that hitherto may have been dealt with in the course of civil proceedings.
The back drop of a break down in civil society can be seen as the driver to prescribe the actions to be taken by the police when investigating these offences which Parliament has indicated are a priority as the fabric and framework of society needs to be strengthened and capacity built in the post conflict environment.
In practice I anticipate that many cases will still be prosecuted under the established legislation which is still the 1861 Offences against the Persons Act. In serious cases the maximum sentences available there under will be heavier than that contained in the Domestic Violence Act 2007.
The availability of an out of court settlement is a useful and sensible method of resolving disputes where the offence is non aggravated and the public interest does not necessitate a trial or court proceedings.
To date there is no firm evidence that the Sierra Leone Domestic Violence Act 2007 is stemming the tidal wave of gender based violence, it is hoped that the mandatory provisions directed at investigators will act as an aide memoire and checklist for positive action. It will be interesting to see how the legislation is interpreted and applied in the forthcoming months and to assess the impact that there is on incidents of domestic violence.
Domestic Violence Act 2007 a step in the right direction or a step too far?
In my view this Act is a step in the right direction it sends a clear message to perpetrators, victims, the courts and those who are entrusted in enforcing the law that those who offend will be dealt with. However it remains to be seen what effect the legislation will have upon violence as it occurs within the domestic context and the attitudes of perpetrators and those who are entrusted in implementing the will of the legislature.
1 Antony Salmon is a Criminal Justice Advisor working for the Crown Prosecution Service UK currently attached to the Attorney General’s Office Sierra Leone.