The murder of a mother of three children in Tarxien last week must have caused all of us who deal with these cases yearly some sort of guilt, leaving us questioning whether we could have prevented the death of this 40-year-old mother. There is no doubt that although we preach about the need to curb domestic violence and to punish those who perpetrate it, in actual reality we are not taking the problem seriously.
I am sorry to say but although there are provisions in our Criminal Code which allow the magistrate to evict the spouse charged with domestic violence from the couple’s home, there are still many members of the judiciary (especially the male ones) who are reluctant to use this disposition in the law.
Domestic violence is defined as any threatening behaviour, violence or abuse between adults who are or have been in a relationship or between family members. It can affect anybody, regardless of their gender or sexuality. In Malta we only recognize physical or sexual violence, whereas in other countries as in the United Kingdom, psychological, or emotional violence is also considered to be domestic violence.
I know of cases where the husband is charged, not with one, but with two cases of domestic violence against the wife, and although the wife has made more than one attempt to invoke the law and ask the Court to order the husband to leave the matrimonial home, for one reason or another, the magistrates in both cases are taking their time to decide the request of the injured party.
What is happening in Malta is that we have so many odds and ends that there is no holistic approach to the problem of domestic violence. On one hand we have Appogg, which is very poorly equipped to deal with the complaints they receive; and on the other hand they go to the other extreme in that they convict the alleged perpetrator without asking for his or her version of the story... so that whoever goes to Appogg and alleges domestic violence is urged to leave home and find shelter.
Moreover, in our judicial system all cases depend on the discretion of the judge or magistrate. I know of cases where the wife inflated the story and the judge ordered the husband to leave the matrimonial home; but when in the Criminal Court the husband was acquitted and the wife was found guilty of causing bodily harm on the husband, the same judge did not want to revoke the court order so that the innocent party is still living outside the matrimonial home.
I know of cases where a husband has instituted two separate criminal cases against his wife, and yet the judge refuses to let the wife in the matrimonial home with the children, and instead orders the husband to leave the home: accepting in the protest the husband’s defence that, if the judge acceded to the wife’s request, he would be automatically finding the husband guilty... whereas criminal law says that you are innocent until proven guilty.
So we have a situation where the victim is the one who is still the underdog, notwithstanding that we have improved the law on domestic violence substantially. What is happening is that it is the victim who most often ends up in shelters with the children, and not the aggressor. What is happening is that their children are being further punished by our society, in that shelter homes do not allow children of a certain age so that a mother will have to reluctantly give up some of the children to the aggressor rather than put them in an institution.
I cannot say if Catherine Agius, the 40-year-old wife who was murdered by her husband last week, ever filed a complaint against her husband for causing bodily harm. But she must have had very good reasons for leaving the matrimonial home.
Sometimes I say that it is useless to introduce new laws when the persons enforcing them do not understand the seriousness of domestic violence. The culture is still that of the past, which is that what goes on in the home between spouses must stay in the home, and anyone who dares and defy this commandment is treated as a traitor.
The new laws, which were passed both in our Criminal and Civil codes regarding domestic violence, were a step in the right direction but the question still remains as to whether and to what extent they are being applied.
In Malta we have no structure dealing with domestic violence; Appogg is saturated and short of staff; the freephone regarding child and domestic abuse stopped for lack of funds; victims of domestic violence often end up being the accused and not the culprits, in that it is very difficult to oust the perpetrator from the house.
We have no programmes addressing this problem. Most of the time, in criminal proceedings, the violent defendant is given a suspended sentence, probation or a conditional discharge (the infamous ‘tergghax’), which to most people means an acquittal.
We do not have independent domestic violence advisors and independent sexual violence advisors, so that all victims of domestic violence can get the right help and advice.
Usually, such advisors work closely with specialist domestic violence courts and specialize in prosecuting cases of domestic violence.
No training and education is offered to abusers and potential abusers after arrest, and we have no domestic violence programmes provided to the guilty party as part of his or her conviction conditions. In England and Wales, domestic violence programmes are mandatory in any probation order. In Malta we provide nothing of the sort: rather we try to mitigate the incident and unless the victim is half dead or dead we do not realize that there is a problem of domestic violence.
We still do not know how to deal with this problem: we have no code of procedure on the subject of domestic violence. We do not know if Appogg are right in dealing with the problem on a complaint without further evidence; we do not know if Appogg is right in investigating the report without sending for the other party to see what such party has to say; we do not know if the doctors at health centres are right in making a report to the police, asking them to investigate the allegations made; we do not know if the police are right in questioning the children without the knowledge of the parent who is being investigated; we simply do not know what is the best approach in these delicate situations.
Many people feel helpless and prefer to suffer in silence as they know that if they open their mouth they must resign themselves to living away from home: most probably in shelters depending on the alimony of the state or on the good mood of their spouse .
I think the time has come to research as to whether the amendments in the law on domestic violence are giving the desired results; and if there is a student waiting for a subject to her thesis in social work or psychology, may I suggest that this be the one. Only then can we know if the system is working well.
I sincerely hope that Catherine Agius did not die in vain.
What the law says
The Domestic Violence Bill, passed in 2005, was welcomed as a step in the right direction, but also criticised as a “watered-down” version of the original 1998 White Paper. Here are a few of the relevant excerpts:
Definition of ‘harassment’ The person whose course of conduct is in question ought to know that it amounts to harassment of another person if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other person.
‘Reasonable’ defence It is a defence for a person charged with an offence under this article to show that... in the particular circumstances the pursuit of the course of conduct was reasonable.
Protection order A protection order may impose any restrictions or prohibitions on the accused that appear to the court necessary or desirable in the circumstances. (These include):
(a) prohibits or restricts the accused from approaching or following the movements of the injured person or any other individual specified in the order;
(b) prohibit or restrict access by the accused, for a period not exceeding six months or until final judgement, to premises in which the injured person, or any other individual specified in the order, lives, works or frequents, even if the accused has a legal interest in those premises;
(c) prohibit the accused from contacting or molesting the injured person or any other individual specified in the order.
Parameters for protection orders Before making an order, the court shall take into account:
(a) the need to ensure that the injured person or other individual specified in the order is protected from injury or molestation;
(b) the welfare of any children or any dependants who may be affected by the order;
(c) the accommodation needs of all persons who may be affected by the order, in particular of the injured person, his children and his other dependants;
(d) any hardship that may be caused to the accused or to any other person as a result of making the order;
(e) the accused’s willingness or otherwise to submit to such treatment as the court may deem appropriate;
(f) any other matter that, in the circumstances of the case, the court considers relevant.
Any comments?
If you wish your comments to be published in our Letters pages please click button below. Please write a contact number and a postal address where you may be contacted.
Download front page in pdf file format
All the interviews from Reporter on MaltaToday's YouTube channel.
There is no doubt that although we preach about the need to curb domestic violence and to punish those who perpetrate it, in actual reality we are not taking the problem seriously. 
