The Domestic Violence Act (DVA) in Malaysia-WAO
In 1985 a Joint Action Group (JAG), comprising five women’s organisations (including WAO), trade union, university and consumers’ associations and individual women, was set up against Violence Against Women. JAG declared domestic violence a ‘social concern’ and called for the enactment of a Domestic Violence Act in Malaysia. The Act was passed by parliament in 1994, but two years later, was yet to be implemented. After eleven years of workshops, campaigning and negotiations, the Domestic Violence Act (DVA) was finally implemented on 1st June 1996.
The need for a Domestic Violence Act
Prior to the DVA, legal measures available to domestic violence survivors were hampered by a reluctance to enforce domestic violence as a criminal offense. Although criminal proceedings and injunctions were available under the Penal Code and existing legislation, domestic violence was regarded as a private family matter, and police and the courts were generally unwilling to take action against batterers. Furthermore, the legal process was laborious and expensive. Protection injunctions often proved to be little more than pieces of paper which failed to protect women from their abusers. Finally, the implementation of a Domestic Violence Act sends out a strong message of the seriousness with which society regards domestic violence.
Criminalising domestic violence
“Criminalising domestic violence has a powerful symbolic value as it is a clear indication of society’s abhorrence of abuse”.
(Monitoring the Domestic Violence Act 1994 Malaysia, WAO, December 1997).
The original drafters of the DVA wanted to classify domestic violence as a crime in itself. But this proposal was rejected. Under the DVA, domestic violence is not defined as a specific crime punishable by new penalties, but it is attached to the Penal Code under definitions and procedures for hurt, criminal force and assault.
What constitutes domestic violence under the DVA?
Under the DVA, domestic violence includes the following acts:
- Willfully or knowingly placing, or attempting to place the survivor in fear of physical injury.Causing physical injury to the survivor by such an act that is known, or ought to have been known would result in physical injury.Compelling the survivor by force or threat to engage in any conduct or act, sexual or otherwise, from which the survivor has a right to abstain. A crucial limitation is that this does not include marital rape. This is because the DVA is attached to the Penal Code, which specifies that a woman does not have the right to abstain from sexual relations unless she is divorced, judicially separated, or has obtained a restraining order on her husband.Confining or detaining the survivor against the survivor’s will.
- 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 survivor.
Who is protected by the Domestic Violence Act?
The DVA defines domestic violence as an act by a person against:
- His or her spouseHis or her former spouseA child An incapacitated adult
- Any other member of the family
Spouse refers to “…a person who has gone through a form of ceremony according to the religion or custom of the parties concerned, notwithstanding that such a ceremony is not registered” (Section 2, Laws of Malaysia: Domestic Violence Act 1994 (Act 521). Although the DVA recognises spouses who do not share the same residence, it does not protect those who live together but are not married, or survivors of dating violence.
Making the DVA applicable to all Malaysians
The Domestic Violence Act was originally intended to apply to both civil and criminal law, irrespective of religion or culture. Civil reforms were to include areas of maintenance, child custody and divorce, while criminal reforms were focused on improving protection order procedures, and empowering the police to make arrests and remove offenders from homes. Efforts to include civil reforms in the DVA met with objections, that for Muslims, there would be conflict between the DVA and Syariah Law. Islamic authorities maintained that Islamic Family Law provides adequate remedies and protection for survivors of domestic violence. But women’s organisations campaigned that limitations to the Islamic Family Law did exist, and that furthermore, it would weaken the DVA making it vulnerable to loopholes, if certain laws were applicable to some groups and not to others. Although Syariah Law has jurisdiction over all family matters for Muslims, criminal matters fall under the Federal Government and criminal laws apply equally to Muslims and non-Muslims. Therefore, attaching domestic violence to the Criminal Procedure and Penal Code enabled domestic violence to be classified as ‘criminal behaviour’ and ensures its applicability to all Malaysians.
How effective is the Domestic Violence Act?
WAO has been monitoring the implementation of the Domestic Violence Act since 1996, to examine the experiences of battered women post-DVA, and to make recommendations to strengthen the Act.
Differences in interpretation of the law, the lack of gender sensitivity of implementing authorities, and the influence of culture, have all combined to effect the content and effectiveness of the DVA.
A patriarchal system continues to assign women to a lower position in the family, society, and before the law. The law does not perceive of women as autonomous individuals capable of making decisions appropriate to their own lives. Rather, women continue to be recognised only in terms of their relationships with others, as mothers, or wives. Cultural influences affect not only the content of the law, but also how the law is enforced. If members of society do not respect or understand the law – including those individuals responsible for the law’s enforcement – the objectives set forth by the law will not be achieved.
Survivors’ Voices – Experiences of Seeking Protection
under the DVA
Here are some of the critical areas of concern voiced by battered women who have sought protection from violence through the DVA.
The difficulties experienced by women who are seeking legal protection where there are no signs of physical violence.
Sarah* has been married for four years. Almost immediately following the marriage, Sarah’s husband began isolating her from her family and confined her to the home. Every day when the husband went to work, he locked the front gate of the house so Sarah could not leave. The home does not have a telephone, despite Sarah’s insistence that she be given access to one. Her husband restricted use of the television and radio, as he did not want her receiving too much information about what was going on outside the home. He also humiliated her by telling her “…you mean nothing to me, you are nothing.”
In September 1997, Sarah’s husband forced her out of the house, locking the doors and refusing her entry. Sarah had no money or food or identity card. She called the police and was told to go to the nearest station to make a report. The police accompanied her home, but the husband would not open the door. Since the husband would not willingly permit officers to enter the home, and Sarah was not under a threat of physical violence, the police told her they were unable to take action.
By this time, it was late in the evening. The police did not offer to take Sarah to a safe place, but instead told her to sleep outside the front gate of her home. Sarah was forced to stand outside all night. She had only the clothes that she was wearing when her husband kicked her out. She was not given any food or water.
The next day Sarah’s husband still would not let her into the house. When she returned to the police station, officers advised her to stay with relatives and contact a lawyer. Through the advice of the Legal Aid Bureau, Sarah spoke to a counselor at the All Women’s Action Society of Malaysia (AWAM) who suggested she stay at WAO’s refuge.
Sarah once again sought the assistance of the police, this time to recover her belongings. When Sarah arrived at her home, her husband once again refused entry. The police did not take action because they said it was not within their rights to forcibly open the door. Sarah was told that since her husband did not physically abuse her, officers could only accompany her to her home, or assist her from leaving if she was being confined.
The complicated and long-drawn out process of obtaining protection orders
Protection orders are court orders to stop abusive husbands, parents or relatives from committing further acts of violence against the complainant.
Under the DVA, while police investigations are on going the court may issue an Interim Protection Order (IPO), which prohibits the person on whom the IPO is served from using domestic violence against the survivor(s). If the accused is charged with an offence under the DVA, a Protection Order (PO) can then be served, with greater powers to restrict the activities of the abuser.
Survivors of domestic violence are at high risk of further abuse and protection orders are vital. However, the length of time women wait for protection orders has ranged from only two days, to over four months. Even one month remains too long for women to wait for protection. The period of time between the registering of a complaint and the court hearing is often the most dangerous and frightening for women.
The procedures for obtaining protection orders must also be clarified and simplified. The application process for an IPO is not included in the DVA. However, the following scenario is typical…
Leela* was married 15 years and has two children. Leela’s husband began beating her six months after the marriage. The beatings and quarrels became more violent after four years of marriage. There was violence almost every day, especially when her husband was drunk. Her husband hit her with his hands and a belt, kicked her, pushed her on the floor and stepped on her. About twice a month he would chase her out of the house after having hit her. Leela would spend whole nights outside. When she returned home in the morning, she would be accused of spending the night with another man. Leela had made police reports dating Back as far as 1987.
On the 5th August 1996, Leela made a police report at her local station after being battered once again. She was sent by the police to the General Hospital, and after treatment, she went home. On the 1st September, she was beaten again. She decided to leave home.
Leela was referred to WAO by the Pure Life Society and arrived at the refuge on the 6th September. When she arrived, she was not able to speak to the social workers because of the swellings to her mouth and face from her last beating.
On the 7th September, Leela made another police report at a police station local to the WAO refuge. On the 14th September, Leela visited her local police station to provide them with a copy of the 14th September police report made at the local WAO station, and to collect a copy of her 5th August report. On the 18th September, Leela spoke to a Welfare Officer about obtaining an Interim Protection Order (IPO) against her husband. On the 26th September, Leela was informed that she would need to go to the Welfare Office local to her home to obtain the IPO. On the 6th November, her husband was interviewed.
Leela continued to wait for her IPO for the next two and a half weeks. During this time, her husband had made threats to kill her and the children.
On the 27th November, Leela contacted the Welfare Office to ask about the delay in the IPO. Leela was told that the delay was because the police report had been made a long time ago, in April, and because she had got medical treatment from a private clinic. Leela informed the Welfare Officer that the police report had in fact been made in August, and that she had been to the General Hospital for treatment. Leela tried over and over again to meet with a Welfare Officer so they could set a date for a court hearing for her IPO.
On the 6th December, four months later, a Welfare Officer accompanied her to a court and Leela received her IPO.
Women’s organisations acknowledge that the DVA is not as far reaching as was originally intended because concessions and limitations were agreed upon in order that the DVA finally be implemented. The implementation of this Act is a monumental achievement.
But it is vital that we continue the process of revisiting and strengthening the Act, to best serve the survivors of domestic violence that the DVA is meant to protect.
Lynn*, who sought protection from her abusive husband under the DVA, has this to say:
“As a long-time patient survivor of domestic violence may I make some very basic suggestions:
- Please inform us of police procedure with regard to what happens from the time we file a police report, to the time when and if a case is called to court. Please inform us of any conditions that might disqualify us from filing a case under the DVA or cause a delay in the proceedings. Please educate us on how to apply directly for a quick restraining order that can protect us while the police may require a long time to complete investigations and paper work.
- Please educate the police and hospitals that the psychological fear, shame and trauma that a human being experiences when he/she is repeatedly beaten may not be visible but is much more damaging than the visible injuries he/she may sustain.
In our culture, it takes a lot of courage to make a domestic problem public. In doing so the survivor experiences shame and the oppressor feels more angry because of ‘jatuh air muka’ (saving face)… Please try to provide us with moral support, sympathy and protection because we are not just body, but mind and heart and soul as well.” (* All names altered to protect identities.)