Introduction
This is the third in the SLCMP series of articles on the ‘Gender Bills’ which have been awaiting enactment by Parliament since summer 2005. The domestic violence Bill is one of three Bills. The other two, discussed in previous articles, are the Registration of Customary Marriage and Divorce Bill and the Intestate Succession Bill. The SLCMP calls on the Government to prioritise this Bill so that it can be heard before Parliament before end of this Parliamentary session.
Definition of Domestic Violence
Broadly, domestic violence comprises physical, sexual, emotional, verbal, psychological and economic abuse. In the vast majority of cases domestic violence is committed by men against women, but men may also fall victim. In the UK, for example, there were an estimated 12.9 million incidents of domestic violence against women in 2003, while there were 2.5 million incidents against men.
Domestic Violence as a Problem
Domestic violence is by no means a problem exclusive to Sierra Leone. Studies by the World Heath Organization have shown that 71% of women in Ethiopia have experienced domestic violence in their lifetime, while this figure stands at 80% in Cote D’Ivoire, 30% in the UK and 22% in the US. Japan has the world’s lowest level of domestic violence, at just under 20%.
In Sierra Leone, one study found that 67% of urban women were beaten by an intimate male partner, and over 50% reported to having been forced to have sexual intercourse. In 90% of cases, a boyfriend or husband was the perpetrator. [i] While some violence does not leave the victim wounded, it often escalates, and there are regular instances of violence leading to death or permanent disability.
Impact of Domestic Violence on Society
As well as the impact such abuse has on the lives of the women in question, it also has hidden costs for everybody in the community. The cost to the economy is vast. In the US it is estimated that intimate partner violence costs the country a total of $5.8 billion a year. One study also showed that abused women in the US earn on average 20% less each year than those who were not abused. They are put in a vulnerable position where they are not able to achieve their potential or fully contribute to the economy. In Uganda, the Ministry of Finance reported in 2002 that “ gender inequality emerges as one of the main reasons for persistent poverty.” Indeed, in March 2005, the World Bank specifically recommended a Domestic Relations Bill in Uganda, on the grounds that the economic impact of violence against women and their inequality perpetuates poverty for the whole country. [ii]
The health costs are also enormous, as it is recognised internationally that there is an important link between domestic violence and the transmission of HIV/AIDs. Men who are violent to their intimate partners are more likely to refuse to use contraception, and their partners are less likely to be able to insist upon it. Studies in South Africa have shown that violent men are also more likely to have multiple partners, and thus, refusing to use contraception, contribute to the spread of sexually transmitted diseases.
The impact of intimate partner violence on children is also widely recognised. Children who grow up in households with domestic violence are not only more likely to become the subject of it themselves at the time, but seeing that violence is an acceptable part of life, they are also more likely to grow up to become the victims of it, or in the case of men to commit it. This has implications for the acceptability of violence as a means of resolving disputes in society as a whole.
The Law as it Stands
Despite this, domestic violence against wives and female relatives is in law considered normal in most communities in Sierra Leone, and acceptable up to a point. Under Customary Law, a husband has the right ‘to administer reasonable chastisement to his wife.’ [iii] According to this he can ‘beat her but not to the extent of wounding her.’ At that point outside intervention may be sought, but inevitably, that point varies from case to case.
The law as it currently stands is also very conflicted. In some chiefdoms (for example in certain areas in Bo District), if a husband beats his wife to a ‘reasonable’ extent, it is counted as a ‘fight between the spouses’ and attracts a fine levied on both parties. If the couple stay together the husband is to pay both fines, if the parties separate it is for the wife to pay both her fine and her husband’s. [iv] This may seem extraordinary by modern standards, but, without the enactment of the Domestic Violence Bill, it is how the law will continue to stand.
Currently, certain extremely serious incidents of domestic violence can in theory be prosecuted under the general common law, under offences such as grievous bodily harm under the Offences Against the Person Act 1861. However, Prosecutors are wary of undue interference into ‘private matters’ and are often reluctant to prosecute. Very few prosecutions indeed are brought, and even fewer convictions are obtained. In 2006, throughout the provinces, only one successful prosecution was brought for an offence of domestic violence.
In practice domestic violence is surrounded by a culture of silence. There is often pressure from partners and family not to report abuse and women may fear ostracism or retaliation. Even when matters are taken to outside bodies, such as the Family Support Unit (‘FSU’), women are almost always encouraged to settle the matter rather than prosecute. This is not least because FSU has little means to help the victim: all they can usually do is call the husband and try to mediate. Mediation and counselling are very important and in many situations may work, but without additional protection it can leave women even more vulnerable. The FSU has no safe houses, and very few victims have alternative accommodation or support mechanisms. Their only real alternative to the street is to return with their children to the same violent situation they just fled. Without protective mechanisms the violence can escalate because with this culture of impunity, perpetrators know there is nothing the victim can do.
The Need for Change
A survey by Physicians for Human Rights in 2000 found that 80% of women in Sierra Leone believe that there should be legal protection to protect women. Despite this, no legal reforms have yet been made to protect them.
The Government has a legal and moral obligation to protect its citizens, and as such to provide a remedy to a situation once it is reported. Section 20(1) of the 1991 Constitution states ‘ No person shall be subject to any form of torture or any punishment or other treatment which is inhuman or degrading.’ As such, the Government shares responsibility with the abusers if it fails to act to protect the victims. The current failure to protect women is also contrary to Sierra Leonean law, for according to s.75 of the Courts Act 1965, the application of customary law ‘… must not be repugnant to equity, natural justice and good conscience.’
Under International Law, all persons have a right to freedom from coercion and violence, the right to equality within families, and to decide freely whether they have sex. More specifically, the Convention on the Elimination of all forms of Discrimination Against Women ‘CEDAW’ [v] advocates for the enactment and enforcement of legislation to prevent and punish acts of domestic violence.
Precedent from elsewhere in the Commonwealth confirms the need for protection. In S v. Baloyi 2000 (2) SA 425 (CC), a case before the Constitutional Court in South Africa, the Court held that the Constitution imposes a direct obligation on the State to protect the right of all persons to be free from domestic violence. The UK and other Commonwealth countries have already enacted Bills similar to that under discussion, for example South Africa passed its Domestic Violence Act in 1998.
The Domestic Violence Bill
Ordinary common law needs to be supplemented by specific offences recognizing the peculiarities of domestic abuse, as well as special protective measures to help the victim. The new Bill does this.
Domestic violence is defined in the Bill to include physical and sexual abuse; emotional, verbal and psychological abuse; economic abuse; intimidation, harassment and stalking; damage to property; entry into the Complainant’s residence without consent where they do not share the same address; and any other controlling, abusive or threatening behaviour. Under the Bill, a single act may amount to domestic violence, a crucial provision to ensure a victim’s life and health need not be endangered by multiple attacks. It would protect anyone in a ‘family relationship’, including married partners, cohabitees, and fiancées, parents and children. It is important to note that the Bill is gender neutral, and would protect men suffering from abuse at the hands of women as well as vice versa.
The Bill would provide an array of tools for dealing with domestic violence, including mediation, punishment of the perpetrator through criminal law and protection for the victim through civil law. Such measures would provide a vital balance so that individual cases can be dealt with in the most appropriate manner and as sensitively as possible.
As long as the case does not involve aggravated assault, the Bill provides that matters may be settled out of court, either at the Complainant’s request, or if the court is of the opinion that it can be amicably settled. If the matter is referred for settlement, the Bill provides that the court shall also refer the parties to counselling and shall appoint a probation officer to report on the Respondent’s subsequent conduct. In practice it is likely that very many cases would be dealt with in this manner.
However, if the court thinks that the matter cannot be settled amicably, and the Complainant wants to prosecute, or if it is a matter of aggravated assault, the matter would go to court.
In terms of criminal actions, under the Bill, domestic violence would constitute an offence. If found guilty, a perpetrator may be liable to a fine not exceeding Le 5,000,000 or a term of imprisonment not exceeding two years, or both.
On the civil side, a person may apply to the court for a ‘protection order’ to prevent a Respondent from carrying out a threat of domestic violence or carrying out further violence. Of course, in law this would already be prohibited, but if the court has made such an order, the police can subsequently arrest the Respondent forthwith if he is found to have breached that order. This provides protection to victims in times of emergency.
A protection order could also regulate the relationship between the victim and alleged perpetrator, thus helping to calm down potentially volatile situations by preventing the two from coming into contact with each other. As part of a protection order, the court could specify that the Respondent must not go into or near certain places frequented by the Applicant, or by her children. In certain serious circumstances and as an emergency measure, the court could direct that the Respondent leave the family home, but continue to pay rent so that the Applicant and her children can carry on living in that home. Given the shortage of safe houses for victims of domestic violence, this provision is crucial, especially for women who are caring for children, who would otherwise be forced onto the streets. The Bill also gives the courts power to order, as a temporary emergency measure only, that the Respondent provide financial support to any children for which he is liable. The court may also direct that the Respondent seeks counselling, surrenders any firearm or weapon, and restrains from taking or damaging the Applicant’s property.
The Act would endow courts with the power to issue interim protection orders without the Respondent’s presence in court, if it considers it to be in the best interests of the Applicant. This is an important provision so that victims can come to court without the risk of alerting a perpetrator who may become violent when told of the complaint. It also ensures that proceedings can go ahead even when a Respondent persistently avoids service or refuses to come to court. However, in such circumstances, the Respondent will be summoned to court, where he can seek to discharge the order. Indeed, a court may discharge orders at any time on an application made by either party.
The Bill also specifies that any person who breaches a protection order would commit an offence and be liable on conviction to a fine not exceeding Le 2,000,000 or a term of imprisonment not exceeding two years, or both.
Conclusion
The establishment of the FSU was an important step forward in taking offences within the home seriously. However, that organisation still faces enormous challenges because its powers are so restricted. The enactment of this Bill would provide the FSU with an array of tools,provide emergency means to protect women when they are at their most vulner including criminal prosecution, civil action and alternative dispute resolution. It would able. In so doing, the passage of the Bill would also bring Sierra Leonean law in line with international standards, for the ultimate benefit of the whole community.
Download PDF file of Domestic Violence Act 2007
[i] Coher and Richeter, Violence against women in Sierra Leone, 1998
[ii] Human Rights Watch
[iii] Smart p. 108
[iv] Smart p.109
[v] Ratified by Sierra Leone on 11th November 1988. See General Recommendation 19.