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There are several critical gaps in the response and protections available to survivors of domestic violence, as raised by the highlights:

·                Survivor-centred responseThe system needs to inspire confidence from all sides. The system fails survivors when they feel unsupported and when they are not accorded their due rights. We recommend a thorough review of barriers women face in accessing justice and protection; training of all service providers to understand better the challenges of being a domestic violence survivor; increasing information available publicly; and strengthening communication with survivors about their cases.

·                Data and evidenceGreater understanding of domestic violence, profiles of survivors, and information on perpetrators and domestic violence related crimes are crucial to ensure we have a complete picture to plan, target resources, and monitor progress. We recommend that the government review current data collection procedures, and refocus data collection on domestic violence matters—including data disaggregated by age, gender, and relationship of the perpetrator to the survivor—to better understand the dimensions of domestic violence. This should be accompanied by a central case management database, accessible to all state responders.

·                Training and awarenessAll stakeholders have a critical role to play in stopping abuse and ensuring that the survivor is supported. We recommend all front-line state service providers and court officials receive comprehensive training within a common learning platform built around the Garis Panduan. A key need is to change perceptions of women survivors, foster full understanding of their needs, and promote sensitivity and understanding of the many dimensions of domestic violence. In this way, service providers would be able to ensure the most appropriate response is given to all survivors. Service providers must not focus on reconciliation or assume that the survivor will retract reports, and must instead focus on supporting the woman through her difficult journey.

·                Strengthening legislationWe recommend that current legislative reforms pending tabling in Parliament are prioritised and passed, and that additional legislative amendments are introduced to close the gaps.

Associated with these critical areas are the following specific recommendations, some of which were previously made in WAO’s 2015 publication, “Working Together: Case Studies in Domestic Violence Response.”

To Parliament

Recommendation 1. Pass the Ministry of Women, Family and Community Development’s Bill to Amend the DVA

Amendments to the DVA have been committed to by the Ministry of Women, Family and Community Development,[18] with substantive input having been provided by WAO, as part of the Joint Action Group for Gender Equality (JAG). Among the positive aspects of these amendments are:

ü  the recognition of the survivor’s right to exclusive residence

ü  the elimination of reconciliatory counselling, and the requirement that the survivor consent before the Court can issue an Order for her to undergo counselling  

ü  the provision of an Emergency Protection Order (EPO), which would allow a survivor to obtain protection against imminent violence

ü  the clarification of when protection under the IPO ends and protection under the PO begins

WAO urges Parliament to enact the Ministry of Women, Family and Community Development’s bill to give these amendments the force of law so that they may be implemented.

To the Ministry of Women, Family and Community Development

Recommendation 2. Pursue additional amendments to strengthen the DVA 

While WAO applauds the government for its initiative in undertaking certain amendments to the DVA, there are still additional changes required in order for the Act to be truly and comprehensively protective of women suffering from domestic violence. Among these additional changes are the following:

§  Broaden the definition of domestic violence in section 2 of the DVA to include abuse between intimate partners

o   Domestic violence is characterised by repetitive violence, power imbalance, and control by the perpetrator over the survivor. These characteristics can be present in violence between intimate partners who are not married.

o   It is an international best practice to include intimate partners as a type of relationship covered under domestic violence laws. The United Nations Handbook for Legislation on Violence Against Women recommends that domestic violence “legislation should apply at a minimum to individuals who are or have been in an intimate relationship, including marital [and] non-marital” relationships.[19]

o   Of the 110 domestic violence survivors who sought shelter with WAO in 2014, five women were abused by their boyfriends, the same amount or more who were abused by a parent, sibling, or other family member—relationships all covered by the DVA.

§  Recognise stalking in the DVA as a form of domestic violence

o   Stalking is not a crime in Malaysia. Studies conducted in other jurisdictions show that stalking is highly dangerous. The majority of stalkers have been in relationships with their victims, but there are many who either never met their victims, or were just acquaintances.[20]

§  Amend section 7 of the DVA so that a power of arrest is attached to every IPO and PO

o   If a defendant is likely to violate the protection order in ways other than actual physical violence, the victim is not necessarily protected through the IPO with powers of arrest. Victims are also not protected from defendants who do not seem likely to cause physical injury, but who subsequently do commit a violent act.

o   An explicit power of arrest will make it clear to enforcement officers that they can make an arrest.

§  Enable survivors to obtain protection without prosecution

o   Although an EPO is slated to be introduced as part of the set of amendments to the DVA that are anticipated to be tabled in the next Parliamentary sitting, these amendments remain to be passed, and it also remains to be seen how the provision for an EPO will be implemented.

o   Thus, it is necessary to also ensure that survivors can fully utilise the already existing provisions for IPOs and POs. However, currently, domestic violence protection from the police can only be obtained if the police carry out an investigation, which could eventually lead to prosecution. Survivors cannot obtain IPOs if they choose not to lodge a police report against a perpetrator. Because of this, women who only seek protection but do not wish to have their abusive partner prosecuted may be reluctant to seek protection from the police. Further, if an investigation ends or is not carried out by the police, a survivor will not have protection.

o    A remedy should be created for survivors who seek protection independent of prosecution. It is important to note that protection of the survivor does not limit the lawful rights of an alleged perpetrator, as this person would only be prohibited from committing violent acts.

§  Extend the duration of the PO to protect survivors from on-going risk of harm

o   As many domestic violence cases illustrate, the risk of harm to the survivor does not end even with the perpetrator being charged with the crime and going to prison; survivors often deal with an on-going fear of being found by their perpetrator even once they have served their punishment. However, the law does not currently account for this on-going harm, and leaves survivors vulnerable.

o   The law should be amended so that a PO is valid until the point where the abuser can prove that they no longer pose a threat to the survivor.

Recommendation 3. Conduct a comprehensive review of the DVA, Penal Code, and other relevant laws to assess compliance with CEDAW

As part of Malaysia’s obligations under CEDAW, which it ratified in 1995, the government must take progressive measures toward eliminating discrimination against women. In its General Recommendation 19, the CEDAW Committee has recognised the link between discrimination and gender-based violence[21], and outlined the state’s obligation toward addressing both discrimination and gender-based violence. Among the state’s obligations are enacting appropriate laws, which are in compliance with the principles embodied in CEDAW.

To this end, WAO urges the Ministry of Women, Family and Community Development to conduct a comprehensive review of all relevant domestic laws, including, but not limited to, the DVA, Penal Code, and Employment Act, and propose amendments as necessary to bring these laws into full compliance with CEDAW.

Recommendation 4. Propose a gender equality bill for enactment by Parliament

Among the government’s other obligations under CEDAW, perhaps the foremost is to incorporate CEDAW into domestic law, as without this, individuals cannot seek redress for harms done in violation of the principles of the convention. In the 2014 case, AirAsia Bhd v Rafizah Shima bt Mohamed Aris [2014] 5 MLJ, the Court of Appeal ruled that CEDAW did not have the binding force of law in Malaysia since it had not been expressly incorporated into domestic law. As such, a comprehensive ‘Gender Equality Act’ must be introduced into domestic law, which defines discrimination, articulates acts constituting discrimination, and outlines remedies for such discrimination.

In November 2016, the Minister of Women, Family and Community Development announced that gender equality legislation was in the works,[22] and that the Ministry was committed to enacting this by the end of 2017. JAG is putting together a draft gender equality bill for the Ministry’s consideration. WAO urges the Ministry to see this commitment through and ensure that comprehensive gender equality legislation is introduced into Parliament and enacted.

Recommendation 5. Create a multi-stakeholder committee for on-going review of response to DV

 

There is insufficient monitoring and evaluation by the government of its handling of domestic violence cases. The Social Welfare Department chairs an inter-agency committee on domestic violence. However, it is unclear whether the committee is operational, and it does not include relevant NGOs, even though NGOs are the majority service providers for domestic violence survivors. A multi-stakeholder committee must be established, with the inclusion of NGO service providers and experts. Regional or state-level multi-stakeholder committees should also eventually be established, consisting of relevant local, state, and federal government agencies and NGOs which meet at least twice a year.[23]

 

Recommendation 6. Increase funding for domestic violence shelters

There exists a large gap between needs and availability of services.

Every year, only a few hundred women are able to seek shelter services at one of the 42 shelters gazetted by the Malaysian government. Of the 42 shelters, 34 are government shelters. In the five-year period between 2008 and 2012, these government shelters housed on average a total of just 32 domestic violence survivors each year (the shelters housed other women who were not domestic violence survivors). WAO, the largest gazetted shelter provider, shelters roughly one hundred domestic violence survivors each year (117 women in 2016).

In contrast, a study conducted by the Women’s Development Research Centre (KANITA) in Universiti Sains Malaysia estimated that hundreds of thousands of women in Malaysia have experienced domestic violence in their lifetime.[24] While not every survivor needs shelter in a particular year, the study suggests the needs are orders of magnitude larger than what existing services provide. Demand for WAO’s shelter services consistently exceeds capacity.

Additionally, as discussed in Highlight 12, shelter services can provide a variety of social work and counselling services beyond ensuring a safe place to stay. The provision of such services to domestic violence survivors is discussed, among other issues, in the Domestic Violence Shelter Standards and Toolkit, which was launched by WAO and the Ministry of Women, Family and Community Development in 2016.

More resources should be allocated to domestic violence shelters, including funding new (government and NGO run) domestic violence shelters, and in supporting and improving existing shelters to bring their services in line with the best practices outlined in the Domestic Violence Shelter Standards and Toolkit, so that eventually a nation-wide network of these shelters is established.

Recommendation 7. Implement a targeted public awareness campaign to educate both survivors and the public on DV

A lack of awareness around DV is not limited only to government responders; members of the community and many women themselves are not aware of what constitutes domestic violence, the fact that it is a crime, and how one can seek help.

As the government agency dealing specifically with women’s issues, the Ministry of Women, Family, and Community Development is uniquely positioned to launch a comprehensive and targeted public awareness campaign that incorporates information for women on their rights and where to seek support services.

To the Royal Malaysia Police (PDRM)

Recommendation 8. Incorporate psychological first-aid and crisis counselling as part of survivor-centred response

As emphasised in Highlight 14 and several of the case studies, survivors of domestic violence have undergone trauma, and suffer from a variety of consequences as a result of this. Thus, it is critical that, when survivors seek help from the police and other state responders to DV, they receive a specialised response that is sensitive to their unique needs. The current response to DV does not account for the trauma that survivors have endured.

To address the needs of survivors and ensure that the response from the police—who are often the first responders in DV cases—act in a manner that is sensitive to these needs, specialised staff must be placed in each police district to address the psychological needs of survivors, including through delivering psychological first aid and counselling. While currently, the role of the Victim Care Officer (VCO) exists to serve this function, as of early 2016, there were only approximately two dozen VCOs for the entirety of the country. As illustrated by the case studies, many survivors do not receive any form of specialised support from the VCO programme, and additional specialised staff is needed. Additionally, all police officers should be trained in basic techniques to sensitively respond to survivors of trauma. The core principles of psychological first aid—1. promoting safety, 2. promoting calming, 3. promoting connectedness, 4. promoting hope, and 5. promoting help—must be incorporated into this training.  

Recommendation 9. Re-allocate more funds to increase police personnel who handle domestic violence cases.

IOs dealing with domestic violence cases are overworked, sometimes working 24-hour shifts. There is also a lack of supporting personnel, such as counselors, to assist front-line officers, and a lack of specialised staff equipped to deal with the unique needs of survivors of domestic violence.

To demonstrate that responding to domestic violence is a priority, the budget within the police force can be re-allocated to increase the number of front-line officers handling domestic violence cases, as well as provide more support for these officers, for example via access to counsellors and regular training.

Recommendation 10. Broaden efforts to train front-line police officers in gender sensitivity and handling of domestic violence cases

As the police are typically the first responders to domestic violence, their interactions with survivors must be sensitive, open, and understanding. While there are undoubtedly many police officers that conduct their duties professionally, there are also those who do not, as the case studies suggest. This includes those who bring their own beliefs, prejudices, and values into their interactions with survivors, resulting in treatment that may be insensitive and minimise the experience of survivors.

It is important that every front-line police officer is well trained on the DVA, the Garis Panduan, and other relevant laws and procedures, as well as how to appropriately interact with domestic violence survivors.

It must be emphasised, for example, that consistent with the law, protection must be the first priority and that reconciliation is not under the purview of the police. Additionally, it must be emphasised that domestic violence is a crime, and victims should not be blamed.

Recommendation 11. Introduce standardised inter-agency referral process

Government agencies and police districts lack a standardised referral process. Although police consistently act as first responders in the majority of domestic violence cases, pursuant to the guidelines of the Garis Panduan, an effective police response includes collaboration with other relevant stakeholders, including NGOs, the welfare department, and hospitals.

A standardised referral process that is in compliance with the Garis Panduan should be implemented to create consistency, allowing for immediate referral by police to survivors in need of crisis support services, temporary shelter, medical attention, an IPO, financial assistance, or other services.

To the Ministry of Home Affairs

Recommendation 12: Propose amendments to the Immigration Act 1955/63

Current laws discriminate against foreign wives of Malaysian citizens. Women married to Malaysian men are not able to renew their spousal visa, open bank accounts, or access credit without the consent of their husbands. This makes them more vulnerable to domestic violence and creates additional barriers for them to escape abusive situations.

To the Ministry of Education and all schools

Recommendation 13: Create uniform and gender-equal policy around parental consent for school transfers, with recognised exception for DV cases

When a domestic violence survivor escapes an abusive home with her child, she often relocates to another area away from the perpetrator. Typically consent of the father is required to transfer a child to a different school, a policy which is discriminatory against the mother.

The relevant laws and policies surrounding a school transfer need to be amended, so the consent of both parents or guardians is required to complete a school transfer, with an explicit exception for domestic violence cases. Domestic violence survivors must be able to transfer schools without the knowledge or consent of the perpetrator-parent, through showing an IPO, a reference letter from JKM, or other appropriate evidence. In this way, survivors and their children can rebuild and continue their lives with minimal disruption. Such a policy would take into account the best interests of the child.

To Jabatan Pendaftaran Negara (JPN)

Recommendation 14: Allow DV survivors to apply for divorce in any jurisdiction

Currently, domestic violence survivors are restricted to applying for a divorce in the jurisdiction where they last resided, which is typically where they lived with their perpetrator-husband. This means that, in order to attend the three mandatory JPN tribunals, a survivor is forced to return to the location where she last resided with her perpetrator, which may put her in serious danger and cause her to experience fear and trauma.

WAO urges JPN to revise this policy to allow survivors to apply for a divorce and attend marriage tribunals in any area, in order to ensure the survivor’s physical and emotional well-being.

Recommendation 15: Abolish practice of joint attendance requirement at marriage tribunals

Attendance at the JPN tribunals is mandated by Section 106(5)(a) of the Law Reform (Marriage and Divorce) Act 1976, but, importantly, this section does not require that the parties be present and heard together. Despite this, in WAO’s experience, most of the time women are called to appear at the same time as their husbands, even in domestic violence situations.

This shows a discrepancy between policy and practice, which indicates a lack of training. To rectify this, JPN should engage in training of its officers and active dissemination of its policies to its staff and relevant stakeholders. By ensuring that JPN officers, survivors, and other stakeholders are aware that the current JPN policy does not require both parties in a divorce proceeding to attend a marriage tribunal at the same time, risk to survivors of domestic violence can be minimised.

Recommendation 16: Introduce protocols ensuring survivor’s safety at Marriage Tribunals

To further secure the safety of DV survivors, WAO urges JPN to implement procedures placing security staff or police officers on-call in the event that a survivor is threatened or put at risk of harm when attending her marriage tribunal. A separate and secured entrance and exit to the facility would also be helpful in high-risk situations. 

To the Legal Aid Bureau (Legal Affairs Division, PM’s Department)

Recommendation 17: Raise maximum income to qualify for Legal Aid in DV Situations

The current maximum income allowed in order to obtain legal representation from the Legal Aid Bureau is RM25,000 per annum (RM2,084 per month). Unfortunately, this results in many domestic violence survivors falling through the cracks, as many survivors earn above the threshold, but still not enough to be able to support themselves and their families and afford legal representation. Although there is an exemption wherein the merits of the case are considered, the default maximum eligible income should be raised for DV cases in order to avoid further burdening survivors.

To The Minister of Law (Prime Minister’s Department)

Recommendation 18: Amend Section 375 of the Penal Code to criminalise marital rape
As highlighted by several of the case studies in this report, sexual abuse is one common form of domestic violence. Among the sexual abuse endured by survivors of DV is marital rape. Currently, under Section 375 of the Penal Code, sexual intercourse without consent is not recognised when it takes place between a man and woman who are married.

 

Rape, whether or not it occurs in a marriage, is a crime under international standards and in other jurisdictions. Rape within marriage is recognised in the CEDAW Committee’s General Recommendation 19, which states: “Within family relationships women of all ages are subjected to violence of all kinds, including battering, rape, [and] other forms of sexual assault.” ‚Ä®Furthermore, the United Nations CEDAW Committee requested the Malaysian government to enact legislation criminalizing rape within marriage in 2006, defining such rape on the basis of lack of consent of the wife.[25]‚Ä®We urge the government to immediately amend the language of Section 375 of the Penal Code and stop implicitly sanctioning the practice of marital rape.

We hope that all stakeholders will act on these recommendations and build on the learning points highlighted in this report.

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