The Gender Based Violence and Domestic Violence Act, Chapter 581 of Laws of Malta, defines domestic violence to include:
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.
The Act also provides a list of persons who would be considered offenders as well as those that may fall victim to such an offence. Such persons are referred to as a ‘family or domestic unit’ and include:
- (a) current or former spouses, civil union partners or cohabitants;
- (b) persons living in the same household as the offender or who had lived with the offender within a period of three years preceding the offence;
- (c) persons whose marriage has been dissolved or declared null;
- (d) an ascendant or descendant;
- (e) other adults sharing the same household;
- (f) persons in an informal relationship, who are or were dating;
- (g) persons who are, or have been, formally or informally engaged with a view to get married or enter into a civil union;
- (h) persons who are related to each other either by consanguinity or affinity up to the third degree inclusively;
- (i) persons having or having had a child in common
Parliament implemented amendments to the Act based on the recommendations made by the Council of European Convention on Prevention and Combating of Violence against Women and Domestic Violence.
Moreover, another significant amendment was further implemented to ensure gender-neutrality is applied in such cases. In fact, this is substantiated in the definition of a ‘family or domestic unit’, as defined above, which includes a broad range of persons who may be considered victims and/or offenders excluding any reference to their gender. This is further enforced by a non-discrimination provision, precisely Article 4, which states that when implementing the provisions found in Chapter 581:
“in particular measures to protect the rights of victims, shall be secured without discrimination on any ground such as age; association with a national minority; belief, creed or religion; colour, ethnic origin and, or race; disability; family responsibilities and, or pregnancy; family and, or civil status; gender expression and, or gender identity; genetic features; health status; language; migrant or refugee status; national or social origin; political or other opinion; property; sex or sex characteristics; sexual orientation or any other status.”
Commission on Gender-Based Violence and Domestic Violence
The Act provides for the set up of an administrative body to assist in advising, regulating, monitoring, engaging relevant stakeholders, determining the funding and support research in the field of gender-based violence and domestic violence and much more. This administrative body is known as the Commission on Gender-Based Violence and Domestic Violence. The most important function of the Commission is that of monitoring and overseeing the effective implementation of the Action Plan which is to be developed by the Government of Malta.
Procedural Nature of the Offence
The procedural nature of the offence of domestic violence, in practice, is that it is considered to survive depending on the willingness complaint of the injured party. However, there is a conflict between what is done in practice and what is being stated by the Criminal Code. As the Criminal Code in Article 543 states that the Executive Police ex officio (out of its own motion) may anyway institute proceedings even without the willingness of the complaint of the injured party when the offence is such that is qualifies to be one of domestic violence. Nevertheless, the Criminal Code has introduced a new concept of staying proceedings upon the request of the injured party. This would only be applicable when considering whether it is in the best interest of the injured party, or any minors, and any other relevant third parties. It is in the discretion of the Court to take cognisance of these considerations and the Court shall determine whether or not it should proceed anyway with the case or stay proceedings.
