The system is failing domestic violence victims | Mary Muscat

A recent Council of Europe report highlighted serious shortcomings in Malta’s judicial approach to domestic violence cases. Dr MARY MUSCAT – former police inspector, now a lecturer at the Faculty of Law – outlines why the criminal justice system often falls at the first hurdle

Mary Muscat
Mary Muscat

The CoE’s group of experts on domestic violence, GREVIO, has observed a ‘serious lack of training when it comes to sensitivity and awareness’ when it comes to dealing with domestic violence cases at law. From your own experience, do you agree with that assessment?

Yes. It was much worse in my early days with the police, to be fair. I joined the Force in July 1997: and I can’t deny that I’ve seen some progress since then. This, too, was acknowledged in the same report. But it is also true that a lot still needs to be done.

Apart from my experience within the Police, as a Child Advocate I have also observed how the law-courts – especially, the family court – functions in practice. I’m not saying this gives me any ‘privileges’, or anything; but at least, I can see gaps, that maybe others will not be able to see.

And I do see certain gaps in the system. This is partly because our procedures are still based on the criminal justice standard of ‘beyond reasonable doubt’. It requires evidence – ideally, the best evidence available – to prove guilt in a court of law; and that can make things very hard for the victim to step forward.

Applied to domestic violence cases, it is sometimes not even possible. In, for example, a case of verbal abuse: how you can prove a crime, if you don’t have a recording…?

But surely the principle of ‘innocent until proven guilty’ has to be maintained in domestic violence cases as well?

Yes; but the nature of the crime is such that the existing procedures – though they work well in another context – do not necessarily apply.

In Maslow’s hierarchy of needs, for instance, the bottom tier of the pyramid – i.e., the most fundamental vital needs – consists of ‘food’, ‘shelter’ and so on. The very basics.

But the second tier is ‘security’: feeling safe in your own body. If the victim doesn’t even have that – the second most vital human requirement – how can they be expected to also have the strength to collate and present the sort of evidence required to prove guilt in a criminal court?

In civil law, however, it’s a different story. The family court, for instance, operates on the principle of ‘balance of probabilities’.

Recently, there was a case in Gozo – a civil case – involving mostly verbal domestic violence. A father was accused of consistently berating his eldest daughter, to the point where the victim suffered severe psychological effects. As it happens, she won the case, and was awarded damages… though it is now at appeals stage.

But it was a civil case, not a criminal one. Had the victim filed criminal charges, the same case would almost certainly have been thrown out of court. How can you ‘prove’ – in the traditional sense – years of consistent verbal abuse…?

And very often, the first failure of the system is precisely at that point. Access to justice.  When reporting a case of domestic violence, the first response – by the police, and even sometimes by lawyers – is to say: ‘Sorry, but you don’t have a case here. How can I be expected to proceed, without evidence?’

And this, in turn, is a form of ‘gaslighting’, in itself…

The term ‘gaslighting’ is most often used to describe the abusive, domineering way in which perpetrators (in this case, of domestic violence) convince their victims that the abuse isn’t happening at all… causing them to question their own sanity in the process. Yet you seem to be suggesting that it is actually the legal system itself (as opposed to the perpetrator) that is doing the gaslighting…

Yes. It pains me to say this, but if the system itself doesn’t recognize that a crime has been committed… wouldn’t the victims themselves start doubting it, too? Besides: in practical terms, victims of domestic violence don’t have that many options at their disposal to begin with. Often, the most they can do is simply leave home… only to afterwards say, ‘maybe I should have don’t this, or that…’ So everything is stacked against them from the start. And it doesn’t help that the legal structures only make things harder, instead of easier.

What we need to do is look into ways of making it easier for victims to have access to justice: in order to protect their own safety, within the criminal justice system. And I’m not saying it’s ‘easy’: it has to be done without lowering standards, or compromising the basic principles of justice. Truth be told, nobody has ever found the perfect solution.

But this is where sensitivity comes in. If we were to increase the system’s sensitivity towards victims… that, alone, would already be a great step forward.

In practical terms, however… what can actually be done to achieve that?

I would say the change that is needed is more cultural, than structural. From a legal framework point of view, a lot of the changes have already been made. The structures themselves are already in place: we have a Commission for Domestic Violence; a dedicated branch of the Police Force… it’s all there, on paper.

But… is that enough? Let me give another example. Environmental law. Malta is signatory to the UN’s Aarhus Convention, in which ‘access to justice’ is based on three pillars. The first involves creating all the necessary structures to ensure that environmental crimes can be prosecuted at law – and this part is already covered, in the context of domestic violence.

Then there’s access to information: which is also, up to a point, covered by the principle of disclosure… e.g., that the accused has the right of full access to any evidence in the possession of the police.

But while this is all well and good, for most criminal offences… with domestic violence, it often hits a stumbling block. If the evidence itself is so difficult to collect, the system – although designed to deliver justice – will end up hindering, not helping, the victim.

Coming back to environmental law, however: the third pillar is the participation of people in the decision-making process. This part, on the other hand, is completely absent. Now: the analogy might not hold 100%: the environment is a different issue, and the procedures are bound to be slightly different, too.

But justice is justice: regardless whether it is applied to the environment, or any other sphere. So if we were to adopt at least the same model – creatively applying it to the context of domestic violence – there will surely be an improvement…

I don’t want to sidetrack into environmental issues: but the example you’re giving may not be very encouraging. The proper systems and structures may all be in place: but we still see outrageous (often obscene) environmental decisions, being taken on an almost daily basis. So how can adopting the same structures improve justice in domestic violence cases?

But that’s precisely the point I was coming to. The systems exist, but they don’t work because they’re not sensitive enough. And in the case of domestic violence: not all the structures are even in place. We have implemented the first of those three pillars… but not the other two.

So where we have taken strides forward in environmental law; we haven’t really done the same with domestic violence. We are still two whole steps behind…

Turning to the GREVIO report itself: it seems to identify precisely the same gaps you just mentioned. Yet in its official reaction, the Justice Ministry has denied the charge that – for instance – the justice system is ‘insensitive’ to domestic violence victims.  How do you respond to that, yourself?

GREVIO may not use the same terminology; but they still identified the same shortcomings, because…they’re there. And it was important that finally, someone said this, in black on white.  Because… how long have been talking about these issues? Even as an academic: nobody listens. You’d have better luck talking to the walls, to be honest. And it gets frustrating: after a while, you stop even talking about it at all…

And this, too, is part of the gaslighting process. It’s the same thing that makes victims of domestic violence gaslight themselves: because they feel that nobody listens, nobody cares…

Which brings me back to the sensitivity issue. I used to give in-service training to the police: coaching police officers on issues such as cohabitation… LGBTi rights… basically, to explain how the recent legislative changes to family law would affect the job of policing.

Because what was often happening was that – for the simple reason that many officers simply didn’t know the law – they were turning cases away: telling them, for instance, that: ‘It’s a civil matter, not a criminal one.’

And again, it’s a case of having the structures in place, without the basic training. In many cases, there wasn’t even awareness of what the law actually says: for instance, that there is no longer a distinction, in criminal justice terms, between married or cohabiting partners… still less, same-sex unions, and so on.

But doesn’t the fact that you were giving this course also mean that the training was, in fact, being provided?

At the beginning, maybe… even if the course itself only amounted to an hour and a half a week. But now that the in-service courses have resumed: it was removed. Because they didn’t see it as ‘valid’.

Today, there isn’t any training at all. And I voiced my opinion about this: I asked, ‘how can we progress towards sensitivity in domestic violence, if we don’t even know the legal definitions of, for instance, status… or gender… or that there is a legal transitional period, when gender is changed…?’

This is all very basic information, by the way. It’s not exactly rocket science. Yet, they removed that course, specifically… because they didn’t see the point. They saw it as an unnecessary ‘extra’. And to me, that’s a symptom of just how insensitive the system has become…

Earlier, you mentioned that a ‘cultural’ – more than structural – change was needed. This also seems to reflect of GREVO’s other finding… i.e., that the law-courts themselves seem to show insensitivity towards victims of domestic violence. Are you suggesting that (notwithstanding recent legal changes) the justice system still retains an archaic approach to the issue?

Let me put it this way: I have a background in Canon Law – which provides the basis for contemporary family law – and up until 1983, Canon Law was still governed by the archaic Roman principle of ‘ius in corpus’: in a nutshell, that the ‘pater familias’ held legal power over the life and death of his family members.

That was removed from Canon Law in 1983; and – subsequently – it was removed from Malta’s civil law around 10 years later. And I must add that the Church was not just ‘quicker’ to make that change: it was also arguably more successful in at eradicating the mentality itself. The Ecclesiastical Tribunal often shows more sensitivity, in domestic violence cases, than the criminal justice system. It’s only fair to point that out.

I am sorry to say, however, that the same archaic concept of ‘ius in corpus’ has never really gone away. The old-school mentality still there. Until not that long ago, for instance, we even had a University lecturer (no names mentioned) teaching first-year students that ‘marital rape’ did not even exist… on the basis that the woman ‘went in for it’, by choosing to get married in the first place…

So unfortunately, there’s a whole legal anthropology behind it. It’s not just about the law itself, as such; but also about our own attitudes towards the law. The police has its own attitudes; the law-courts have theirs… and so does everyone else, at some level or other. And at the basis of it all, there is an old system that – despite having been abolished nearly 30 years ago – still exerts its influence today.

And it is that old system… and the cultural mentality that it perpetuates… that we really need to challenge.

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