Government’s newly proposed law, which introduces the concept of femicide to Malta’s Criminal Code, is, owing to a particular stipulation within it, discriminatory, some of the country’s top legal minds have said.
Former European Court of Human Rights Judge Giovanni Bonello and two of Malta’s top criminal lawyers have told The Malta Independent on Sunday of how government’s proposed legal amendments, which were revealed last Wednesday, are problematic in the sense that they discriminate on the basis of gender.
This is not because of the introduction of the concept of femicide itself, but because of a stipulation that for a femicide to be considered as being such, it would have to be committed by a person of the male gender.
Bonello said that “it is very obvious that the Femicide Bill, introduced recently, is problematic from the discrimination angle” because the Bill treats a homicide committed by a man on a woman differently to a homicide committed by, for instance, a woman on a woman.
Indeed he pointed out that the proposed amendments could be in breach of both Malta’s Constitution and of the European Convention on Human Rights on the basis that the amendments may create what is known as “impermissible discrimination”.
Two of Malta’s top criminal lawyers also questioned the logic behind this stipulation in the law, with Joe Giglio telling this newsroom that the proposal does not contemplate for a number of scenarios where a femicide may be committed by someone who is not a man.
What does Malta’s proposed law say?
The legal amendments, tabled in Parliament as Bill 261, seek to introduce the concept of femicide within Malta’s Criminal Code.
To do so a new article – Article 221A – would be added to the Criminal Code.
The proposed article in full reads as follows:
“In sentencing a person of the male gender convicted of the wilful homicide or of the attempted wilful homicide of a person of the female gender the court shall, in establishing the punishment, give due consideration to whether the homicide or attempted homicide:
(a) was the result of violence by an intimate partner with whom the victim was or is still in a relationship or whom the victim is the spouse or former spouse; or
(b) resulted from violence by a member or members of the family; or
(c) was committed for misogynist motives; or
(d) was committed for reasons of honour of the perpetrator, or of family reputation, or for reasons related to religious or cult belief or practices; or
(e) was committed due to motives based on the gender, or gender identity, or sex or sexual orientation of the victim; or
(f) was committed as a result of sexual violence or of acts of a sexual nature; or
(g) was committed due to the victim being involved in prostitution, or being subjected to sexual exploitation or being the victim of human trafficking for purposes of sexual exploitation,
and the court shall consider the existence of any of the said circumstances as a factor militating against leniency in punishment."
The proposed law was unveiled by government on Wednesday, a month to the day after the brutal rape and murder of Paulina Dembska, which prompted activists to put pressure on authorities for femicides to be recognised by Malta’s laws.
The proposal does not seek to make femicide a distinct legal offence, as homicide already carries the maximum penalty of life imprisonment, but instead seeks to encourage the court to consider circumstances of the case which would have rendered it a femicide when deciding upon what sentence to hand down.
Other legislative changes, such as the removal of the “crime of passion” justification in the case of femicides, were announced in Wednesday’s press conference but do not appear in Bill 261, which was made public in Friday’s Government Gazette.
How is the proposed law discriminatory?
The point within this proposed law which appears to be discriminatory is not as such the introduction of femicide itself into the Criminal Code, but rather the stipulation that for a femicide to be considered as being such, it would have to be committed by a person of the male gender.
This means that if a femicide is committed by a woman or a person identifying as, for instance, non-binary, then the courts are not bound to consider the circumstances of the case as they would if a man were to be the aggressor.
Indeed the decision to include the stipulation on the male gender differs from how femicide has been defined by other institutions.
The European Institute for Gender Equality for instance defines femicide as the “killing of women and girls because of their gender”, which can happen in various scenarios such as a murder as a result of violence from an intimate partner, a murder of misogynistic reasons and honour killings, among others.
At no point, however, is it mentioned that for a murder of a woman to be considered a femicide, it has to have been committed by a person of the male gender, as Malta’s proposed law appears to be stating.
Proposed law could breach Constitution and European Convention on Human Rights – Giovanni Bonello
Asked by The Malta Independent on Sunday about this legal quandary, and whether the way in which the proposed law has been written can be construed as discrimination, former European Court of Human Rights Judge Giovanni Bonello described the Bill as “problematic from the discrimination angle”.
“There exists impermissible discrimination whenever there is a difference in treatment due wholly or mainly to reasons of race, place of origin, political opinions, colour, creed or sex,” Bonello explained.
“On the human rights level the ban on discrimination is regulated in Malta by three important legal instruments, which are not quite identical. In fact, the focus of each is very different,” he continued.
“Article 45 of the Constitution bans discrimination in the enjoyment of any right recognised by law, but only if the discrimination is based on the six grounds mentioned above. But the Constitution does not prohibit discrimination based on other grounds.
Article 14 of the European Convention on Human Rights bans discrimination on any ground, but not in the enjoyment of all rights. It bans discrimination on any ground whatsoever, but only in the enjoyment of Fundamental Human Rights, not of all rights.
Finally, Article 1 of Protocol 12 of the European Convention has a blanket ban on all discrimination based on any ground. Malta has ratified this Protocol and bound itself to observe it, but has not made it enforceable in the Maltese Courts.”
Turning to the proposed Bill itself, Bonello said that “it is very obvious that the Femicide Bill introduced recently is problematic from the discrimination angle”.
“It treats a homicide committed by a man on a woman in a different manner from a homicide committed by a woman on a woman, or by a woman on a man, or by a man on a man. If the only or the main reason of this difference in treatment is the sex of the victim, then this could be impermissible discrimination that falls foul not of one, but of all three instruments mentioned above,” he said.
“The Constitution expressly permits positive discrimination in favour of women, but only if the discriminatory measures are aimed at accelerating equality between men and women. It is difficult to see how the measures, as proposed in the Femicide Bill, would accelerate equality between men and women,” he concluded.
Top criminal lawyers baffled at legal amendments
Two of Malta’s top criminal lawyers, contacted by The Malta Independent on Sunday for their own interpretations on the same legal question, both agreed that the focus on the male gender in this instance is discriminatory.
Joe Giglio was baffled at how such a stipulation was included in the proposed law and pointed out how there were potential scenarios of femicide which the law, as proposed, would not cover.
“It’s strange that we are speaking about femicide but forgetting that there is a reality which relates also to partners of the same sex, for instance. Why are they being treated differently? Shouldn’t the woman also be protected in such an instance or does she merit less protection?” Giglio told The Malta Independent on Sunday.
Another hypothetical example he brought up was in such an instance where a husband cheats on his wife with another woman, and the wife ends up killing the said other woman, or else in a case where a woman may develop a sense of hatred for other women and be driven to kill other women as a result.
In both such cases, Giglio said, these would be defined as femicides, however, the law proposed does not contemplate for such examples.
Another criminal lawyer, who preferred not to be named, was similarly baffled at the reasoning behind the proposed law and also criticised why the “crime of passion” justification in a case should be removed for only specific cases.
“That point should either be removed for everyone or for no one. Why can a woman be allowed to have a rush of blood while a man cannot? Why can a woman kill another woman and use that as an excuse where a man cannot?” the lawyer, who is female, told this newsroom.
The lawyer warned that we should not get carried away because of the “senseless” murder of Paulina Dembska.
“We cannot make laws as knee jerk reactions because they end up not being fair, and end up discriminatory. Like I don’t like women being discriminated against, I don’t feel men should be discriminated against either,” she said.
What comes next for the proposed law?
The Bill is still, for now, just that. It has to go through the parliamentary process before eventually becoming law.
Till that point, government can make changes to the law to reflect any feedback, or even criticism, which is received.
No target date for when the Bill will be heard has been set yet but it has been added quite high up on Parliament’s agenda, meaning that government will be seeking to push things through as soon as possible.
That stands to reason, particularly as a general election looms ever larger.
Once a general election is called, Parliament would be dissolved, and any Bills, which are still on the agenda for discussion, will fall through and would then have to be re-tabled by the new government once it is elected and sworn in.