Domestic violence has become a social pandemic in Malaysia, with countless women, children and men subjected to physical, verbal, emotional and sexual abuse within the confines of their own homes. The COVID-19 pandemic has further highlighted the issue of domestic violence in our country with reports of increased cases during the lockdown period.
Based on statistics from the Royal Malaysia Police (PDRM), a total of 19,268 domestic abuse cases were reported from 2020 to 2022. Of the three years, the year 2021 recorded the highest numbers of domestic violence cases involving 5,131 female victims and 2,337 male victims. It may come as a surprise to some in our patriarchal society which adopts misogynistic values and the traditional notions of gender stereotyping that men can become victims of domestic violence too.
The common idea that most people tend to have of domestic violence is a wife being physically or emotionally abused by her husband, when in actuality domestic violence does not just involve wives; it involves all and any kind of familial relationships regardless of race, age, sexual orientation, religion or gender and can affect people of all backgrounds and education levels.
According to Section 2 of the Domestic Violence Act 1994 (Act 521) (“DVA”), an act of domestic violence may be committed by a person, whether by himself or through a third party, against his or her spouse, his or her former spouse, a child, an incapacitated adult, or any other member of the family.
Now, what may amount to an act of domestic violence? Domestic violence is generally the use of intimidating, manipulative or coercive behaviour by one in an intimate or familial relation over another, for the purpose of gaining or maintaining power and control.
Domestic violence is habitual, repeated, and random, and it may take the form of physical, psychological, social, sexual or financial abuse.
According to Section 2 of DVA, domestic violence means the commission of one or more of the following acts:-
a) Willfully or knowingly placing, or attempting to place, the victim in fear of physical injury;
b) Causing physical injury to the victim by such act which is known or ought to have been known would result in physical injury;
c) Compelling the victim by force or threat to engage in any conduct or act, sexual or otherwise, from which the victim has a right to abstain;
d) Confining or detaining the victim against the victim’s will;
e) Causing mischief or destruction or damage to property with intent to cause or knowing that it is likely to cause distress or annoyance to the victim;
ea) Dishonestly misappropriating the victim’s property which causes the victim to suffer distress due to financial loss;
eb) Threatening the victim with intent to cause the victim to fear for his safety or the safety of his property, to fear for the safety of a third person, or to suffer distress;
ec) Communicating with the victim, or communicating about the victim to a third person, with intent to insult the modesty of the victim through any means, electronic or otherwise;
f) Causing psychological abuse which includes emotional injury to the victim;
g) Causing the victim to suffer delusions by using any intoxicating substance or any other substance without the victim’s consent or if the consent is given, the consent was unlawfully obtained; or
h) In the case where the victim is a child, causing the victim to suffer delusions by using any intoxicating substance or any other substance.
What to do if you are the victim of domestic violence or you believe someone is the victim of domestic violence?
It is time for us to acknowledge that domestic violence is not just a family matter but is a crime. Please report it to the authority – make a police report.
If you sustain injury due to domestic violence, you may immediately get medical examination at One Stop Crisis Centre (“OSCC”) located at the emergency room of all government hospitals and make a police report there. OSCC is meant to assist the survivors or victims of crisis with the involvement of multiple agencies under one roof to fight against any forms of violence such as rape, child abuse, sodomy and domestic violence.
If you have reasonable grounds to believe that you are under the threat of domestic violence, you may seek protection by obtaining a protection order. In Malaysia, the victims of domestic violence are protected under the law through emergency protection order (“EPO”), interim protection order (“IPO”) and protection order (“PO”).
An EPO can be obtained by way of an application to the Department of Social Welfare (JKM). For the purpose of the application, a police report is not required. In most cases, the EPO can be issued immediately within two hours after application. The EPO shall be valid for the period of seven days and may contain the orders to prohibit the perpetrator from using domestic violence against the victim, inciting any other person to commit domestic violence against the victim and/or entering the victim’s shelter or residence.
An IPO is issued by the Magistrate Court and is valid throughout the police investigation before the perpetrator is charged in court. The IPO can be obtained to prohibit the perpetrator from using domestic violence or to prohibit that person to incite any person to commit domestic violence pending investigation. Once the investigation is completed, the IPO would cease to have effect.
If a criminal proceeding is instituted against the perpetrators in court, you may apply for a PO from the Magistrate Court. The PO shall be valid during the court proceedings in which the perpetrator would be restrained from using domestic violence or inciting any other person to commit domestic violence against the victims. The PO may also include one or more of the following orders:-
a) Right of exclusive occupation;
b) Prohibiting or restraining the perpetrator from-
(i) Entering any protected person’s safe place, shelter, place of residence or shared residence or alternative residence, as the case may be;
(ii) Entering any protected person’s place of employment or school;
(iii) Entering any other institution where any protected person is placed;
(iv) Going near any protected person at a distance of at least fifty metres or at a distance the court thinks reasonable; or
(v) Making personal contact with any protected person other than in the presence of an enforcement officer or such other person as may be specified or described in the order;
c) Requiring the perpetrator to permit any protected person to enter the shared residence or the residence of the perpetrator, accompanied by any enforcement officer for the purpose of collecting the protected person’s personal belongings;
d) Prohibiting any form of communication by the perpetrator with the protected person;
e) Requiring the perpetrator to permit any protected person to have the continued use of a vehicle which was previously been ordinarily used by the protected person;
f) Any other necessary direction.
In addition to issuing PO, the court may, subject to the consent of the victim, make an order to refer the parties concerned to a rehabilitation programme.
In the event the perpetrator contravenes the IPO or PO, the offender is liable to a fine not exceeding RM2,000.00 or imprisonment not exceeding 6 months or to both; and for any subsequent violation, to fine not exceeding RM5,000.00 and imprisonment not less than 72 hours and not more than 2 years.
Besides that, the victims of domestic violence that suffer personal injuries or damage to property or financial loss as a result of the domestic violence may also claim for compensation in the court.
To those who may not be ready or able to leave their abusive situation and simply want to find out their options or speak to someone, there are non-governmental organizations (“NGO”) that provide for critical crisis services, including shelter and counselling. For example, you may reach out to the Women’s Aid Organisation (“WAO”) that provides for access to critical information, advice, consultation, shelter and crisis support through WAO Hotline Services at +603 3000 8858 (9 am – 5 pm) or SMS/WhatsApp TINA at +6018 988 8058 (24 hours).
The cycle of violence is a scary thing to break free of but there is hope for the victims of domestic violence. If you are unable to do it yourself, NGOs like WAO is just an SMS or a call way, get help to obtain justice for yourself.
As a society, all of us should recognize domestic violence for what it truly represents – a crime that needs to be stopped.
For further information, please contact:
Abu Daud Abd Rahim, Partner, Azmi & Associates
a.daud@azmilaw.com
