I am all for any measure that can be effective in the fight against femicide, a long-dormant subject that has suddenly again reared its ugly head in our country, but the manner in which the latest legislative attempt by our legislators to introduce the concept of femicide to Malta’s Criminal Code was done, simply amounts to messing around with the law that in all probability will lead to nowhere and will not achieve what it intends to achieve in the first place.
The legal amendments, tabled in Parliament as Bill 261, aim to direct our criminal courts to give due consideration to whether the homicide or attempted homicide has any femicide hallmark connotations that can range from intimate partner violence to misogynist motives. If, and when, such connotations are identified and proven in the event of 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 consider the existence of any of the said circumstances as a factor militating against leniency in punishment.
Apart from the fact that it would be a moot point to question why such a specific situation was not also extended to when a person of the female gender is equally convicted of the murder of any one of the female gender and also to cover the offences and charges of grievous bodily harm and the attempt thereof, equally a moot point is to ponder on why the legislator has not also considered introducing on an equal legal footing the criminal offences of androcide and memicide, that is the killing of men and boys because of their gender and the killing of a man by another man with the feeling of hatred.
With this shortcoming, there is a blatant discriminatory scenario that the legislator will be embedding in our criminal code. Androcide and memicide might be the odd criminal offence you might say but it does happen now and then as it did in the past and it might happen again in the future. So much for gender equality!
In reality, what the Bill is laying down as situations or circumstances that are to give the offence of wilful or attempted homicide a femicide connotation amount to what prosecutors are usually wont to attribute as a motive for the offence allegedly committed by the accused. I know, from a number of trials I have experienced as a former public prosecutor, how difficult, if not impossible, it turns out to be to prove a specific motive that can be attributed to the accused in committing the offence in question. All that the prosecution has to prove beyond a reasonable doubt is that the offence was committed by the accused with a specific intention (that is to kill or put the life in manifest jeopardy) and the accompanying material act. The herculean task of also proving the motive behind it might provide a clearer picture for the prosecution’s case but in fact, this usually is quite a tall order.
Apart from the extreme difficulty of proving the motive behind any wilful or attempted homicide for that matter, there could be other uncertainties in the manner the Bill is drafted. Who will have the final word as to whether the particular offence here amounts to femicide or not, will it be the presiding judge or will it be left to the jury to decide? Furthermore, just because one comes to the conclusion that the offence committed partakes of this novel offence of femicide, will it mean that the elements giving rise to the defence of either excusable (save when it is committed while acting under the first transport of a sudden passion or mental excitement) or justifiable wilful homicide provided for in other sections of our criminal code, no longer apply when dealing with a “femicide” case? And would a decrease of punishment in case of a supervening accidental cause apply? Would not the denial of a legitimate lesser punishment, applicable in other cases but not here, also create an unnecessary discriminatory situation in our Statute Book?
Perhaps, with hindsight, Justice Minister Zammit Lewis was right when his initial reaction to the immediate uproar following the murder of Polish woman Paulina Dembska was that femicide cannot be listed as a crime or an aggravating offence to homicide since murder, irrespective of gender, already carries the maximum punishment of life imprisonment. Perhaps this Bill ought to be sent back to the drawing board. One could draw a lot from what Italy has done to tackle the root of femicide.
In July 2019 it passed a series of tougher new laws against domestic and gender-based violence, the so-called Codice rosso or Code red law in response to the high rates of violence against women in Italy. The new law promises tougher penalties, including longer prison sentences for the perpetrators of violence, sexual abuse and stalking. It also means cases will be dealt with by courts as a priority and investigations will be fast-tracked. The new law states that those reporting incidents of domestic or gender-based violence will be summoned to a court hearing within three days.
Having sensible legislation in place is only one in a series of holistic measures needed to thwart femicide. Not all men practise violence against women but all women live with the threat of male violence every single day. It is on allaying that threat and fear that we should be concentrating on and spending our creative and remedial energy.
Dr Mark Said is an advocate