Domestic violence: Time for Malaysia to go the 'victimless prosecution' route — Ivy Josiah

SEPTEMBER 4 — When stories of a popular YouTuber's marital problems went viral earlier this year, there were people on social media asking what women's groups were doing for her; have they tried to help her, have they advised her to leave her husband?

There was also a heated conversation as to why the police had not charged the husband for domestic abuse.

I want to attempt to address these questions.

First of all, women's groups like Women's Aid Organisation (WAO), Women’s Centre for Change (WCC), Sisters in Islam (SIS) or the All Women Action Society (AWAM) who all provide telephone counselling services do not aggressively reach out to known survivors, but will publicly state that they can offer advice IF the survivor wishes to seek help.

The survivors come to us because they want our support or shelter services.

Most often, victims may be directed to a women’s group through friends, hospital, police, welfare organisations, embassies and in my experience with WAO, a woman may seek help after years of holding on to a newspaper article or brochure, biding her time before she decides that she does want to leave an abusive situation.

So in the case of this YouTuber, she has stated openly that she wants to give her husband a second chance and we have to accept that decision.

Generally, women’s groups abide by this principle of respecting a woman's decision, allowing her to decide in her own time, because she knows when she is ready to leave an abusive relationship.

Only she will know the levels of danger. She will know too whether a husband can change or not, and some husbands do change, especially when there's early intervention.

A wife stays with her violent husband for several reasons, chief among them is to give her husband another chance (she still loves him) and he would have promised to change.

Admittedly there may be certain situations where she feels coerced and trapped, lives in fear of further violence, not only for herself but her children and even her family members may be in danger. Perpetrators have been known to threaten to harm children, family members and pets.

At the WAO shelter, we have never forced a woman to leave her husband; neither do we force a woman to remain in the shelter. She can leave anytime.

However, anytime a woman seeks help, social workers walk through safety plans including emphasising that the law now protects family members from domestic violence.

Of paramount importance is to assure all victims of domestic violence that doors and lines are always open, no judgment.

Now, the other question is why didn't the police just go ahead and charge him?

For the record, in the case of the YouTuber, due credit to the police for their quick action that the husband was charged for possession of a weapon.

But to my knowledge, he has not been charged with domestic violence.

Here in Malaysia and in other jurisdictions too, police investigations depend on the witness statement of the complainant (victim), most often a wife who will provide details of the hurt caused to her; incidents, dates, times, weapons, medical reports and witnesses. And if the complainant withdraws a report, it may become a case of NFA — No Further Action.

In contrast, the criminal justice system in the UK and the USA in cases of domestic violence adopts a proceeding called “victimless prosecution.”

The investigation and prosecution proceed without the complainant having to appear in court to give oral evidence.

The premise is not to assume that a complainant giving evidence in court is the only way to prove a crime but to look for other forms of evidence to support the prosecution independently of the complainant.

For instance, it may well be that the wife has made a 999 call and this recording becomes a piece of evidence. When the police arrive at the scene of the crime (the home), they take photographs of the domestic dispute, the signs of a struggle — broken furniture, broken cutlery, broken lock etc.

In other words using evidence other than that of the statement by the complainant. The police investigation checklist could include witness statements from neighbours, friends, children, medical records, past police reports, history of abuse of the alleged perpetrator to name a few.

In the UK, it used to be that the police could not press charges for domestic violence without the co-operation of the victim, but the UK domestic violence law changed in 2001.

The police can now pursue an investigation and run a victimless prosecution if they believe there is serious risk to the public and the accused will be violent again.

When I spoke with police and prosecutors during a study tour in the US, the police understood that a woman may be too scared to proceed, the threat of danger is heightened especially if you have been traumatised.

Safety and protection of the victim-survivor is priority so in a sense she is not put in a vulnerable position. By pursuing a victimless prosecution, this takes the decision (and burden) away from the victim-survivor.

So, can victimless prosecution take place in Malaysia? From several conversations with lawyers, they say it is quite possible. One scenario could be that the IGP merely instructs the police to continue with the investigation, the AG's Chambers can then prosecute if indeed there is enough evidence.

I am proposing that we really need to explore this option.

Allow me to put it another way; if a criminal snatched my gold chain and then I decided to forgive him, the police will still charge him.

Domestic violence is a crime.

* This is the personal opinion of the writer(s) or organisation(s) and does not necessarily represent the views of Malay Mail.

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