The Malta Independent 19 May 2022, Thursday

Hidden victimisation

Mary Muscat Sunday, 8 May 2022, 10:36 Last update: about 12 days ago

I had the privilege, last month, of recording a Q&A organised by the Gender Based Violence and Domestic Violence Commissariat on victimisation and the victim’s access to justice. Seven minutes on tape might seem like a breeze but there’s so much preparation necessary for giving clear, concise and legally accurate explanations – not to mention making them as empowering as possible.

There are victimisation instances I come across in my profession that warrant writing about. Or shaking the system, if needs be. I’m going to address three in particular that are symptomatic of more, similar examples that I come across as a Child Advocate and DV lawyer.

The first is the misunderstood definition of what constitutes a family unit in domestic violence legislation. So imagine having a couple that is separating, and one of the parties starts a new relationship. For some odd reason, the district police do not consider this third person as part of the domestic unit and if he or she bears the brunt of the ex’s wrath, then it’s just classified as bodily harm. If you’re lucky, you’ll get the bonus of something else such as threats, a breach of public peace, or fear of violence. It just doesn’t occur to the officers that it falls squarely within the legal meaning of a ‘family unit’ within our DV laws and even more so, within the source of all of this: the Istanbul Convention. And yet it is such a common misinterpretation.  “You’re stretching the definition, Dottoressa.” “No, I’m applying the law, officer. Read it again.”

The second instance concerns the infamous situation of settling an issue during separation proceedings only to be constantly and purposedly challenged with the sole purpose of irritating the other party. It’s stretching the patience of the ex beyond elastic limit, which is a genuine form of martyrdom. Technically, it’s contempt of court. Considering that there are contraventions in the Criminal Code that address the two most common issues that crop up between separated parents – access to the child and the payment of maintenance – how about introducing at least another such minor offence that the aggrieved party can resort to? Simply filing a rikors entails so much effort, time, energy and money that taxes the soul. So why not create new contraventions that address more of the common issues, even if it’s just the omission of honouring an obligation emanating from the separation contract or from a decree given by the Family Court?

A third and curious phenomenon, but one that I have experienced quite often as a lawyer, is the manipulation of a mother who is raising the child on her own and who gets invited by the baby’s father’s family to reside with them. The red flag is usually the fact that the invitation comes out of the blue. The standard excuse is the rising rent rates, or a specific ‘family-oriented’ event, such as Christmas or Mother’s Day. Then the inevitable, sort of, happens: the couple ‘fight’ and the mother is typically thrown out of the house, sans bébé and often without her belongings too. Looking back, it becomes obvious that it was a baiting ploy from the start. But the police always deem it as a case of civil nature, failing to realise the element of entrapment and mise-en-scene, and therefore the existence of mens rea. They fail to understand that they need to intervene in the best interests of the child because it’s basically abduction, or kidnapping by another name “Let them fight it out for themselves, that’s a civil matter.” Speak of becoming instant civil law experts – how about filling this legal gap appropriately, in the best interests of the child? The actus reus is clear enough, so how about defining the mens rea and legislating accordingly?

Just one last suggestion: I’m sure there are so many stories that still need to be told, whether by the victim or the legal representative experiencing gaps in the substantive and procedural law. Even this needs to be addressed through a specific repository that channels the data to professionals who can do something truly valuable with it.



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