By Dr Renè Darmanin – Junior Associate
On the 8th of May, Ireland enacted the ground-breaking new Domestic Violence Act 2018, this act came into operation on the 1st of January, 2019. By means of this enactment, the Irish legislator introduced a new crime – the crime of ‘coercive control’. Coercive control has been criminalised by the United Kingdom in 2015.
‘Coercive control’ may be defined as “a pattern of acts of assaults, threats, humiliation and intimidation or other psychological or emotional abuse” Statistics show that 4 in 10 women and 4 in 10 men have experienced at least one form of coercive control by an intimate partner in their lifetime ( Breiding, M. J., Chen, J. & Black, M. C. (2014). Intimate partner violence in the United States – 2010. Retrieved from http://www.cdc.gov/violenceprevention/pdf/ cdc_nisvs_ipv_report_2013_v17_single_a.pdf).
By means of this enactment, Irish law would allow the prosecution of people who create ongoing threatening atmosphere within a relationship, even in the absence of violence or overt threats of violence.
Article 39 of the aforementioned legislation holds that:
“A person commits an offence where he or she knowingly and persistently engages in behaviour that— (a) is controlling or coercive, (b) has a serious effect on a relevant person, and (c) a reasonable person would consider likely to have a serious effect on a relevant person.
A person who commits an offence under subsection (1) is liable—
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, and
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years, or both”.
Even though under domestic legislation, we do not have a specific provision regulating the crime of coercive control, the ‘Gender-based violence and domestic violence Act’ defines domestic violence as:
“…all acts or omissions including verbal, physical, sexual, psychological or economic violence causing physical and, or moral harm or suffering, including threats of such acts or omissions, coercion, or arbitrary deprivation of liberty, that occur within the family or domestic unit, whether or not the perpetrator shares or has shared the same residence with the victim, and shall include children who are witnesses of violence within the family or domestic unit” .
Consequently, under Maltese law, the crime of domestic violence is not limited to physical violence but extend also to psychological harm hence in a way incorporating what other countries refer to as ‘coercive control.’ In addition, Article 251B of the Maltese Criminal Code holds that any person whose course of conduct causes another to fear that violence will be used against him shall be guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions.
Both European and Maltese law establish a set of rights which all victims of crime are entitled to. In fact Chapter 539 of the Laws of Malta sets out various rights which protect victims of crime from secondary and repeat victimisation as well as to safeguard the dignity of victims when testifying.
From a practical point of view, a victim of crime in Malta is only obliged to testify once at court. This implies that the defence is obliged to cross-examine such witness on the same day and time. So as to prevent the risk of further emotional or psychological harm, Maltese law allows victims of crime to testify via video-conferencing so as to avoid contact between the victim and the alleged offender.
Going back to the newly enacted Irish Domestic Violence Act, apart from the rights afforded to victims of crime here in Malta, the Irish legislator introduced a new right. As a matter of fact, if the case involves domestic violence and specific criteria coincide, the court may direct that the accused may not personally cross-examine the victim. In such a case the alleged offender would be invited to arrange for a legal representative to act for him.
On the other hand Article 6(3) of the European Convention on Human Rights grants every person charged with a criminal offence the right to defend himself in person as well as the right to examine witnesses produced by the prosecution.
Given that such enactment has only been in operation for a few weeks, it is still premature to say how this preclusion will work out in practice, what consequences such restriction will have on the rights of the accused and above all whether such prohibition may be constitutionally challenged.
Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr René Darmanin on email@example.com.