A Protection Order: By no means a useless document

Jul 23, 2019 News

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By Feona Morrison

Recently, a young woman was savagely attacked and shot by her estranged partner who had sneaked into her home. The man then shot himself dead. It turns out that the young lady, who thankfully survived the ordeal, was granted a restraining order against this very man who had beaten her in the past.
But what really is a domestic violence restraining order also called a protection order?
Well, simply put, it is a document, which the Court issues to prevent an abuser from harming the victim. It is meant to restrain the abuser. If the abuser harms the victim in spite of the order, the abuser can be arrested without a warrant. The protection order is meant to guarantee the victim’s safety, well being and health—physical or emotional.
WHO QUALIFIES FOR PROTECTION ORDER?
Firstly, a domestic violence offence is defined under the Domestic Violence Act of 1996 as a prescribed offence committed by a person against another person with whom he/she is associated or a relevant child. A Prescribed Offence, according to the Act, means murder or attempted murder, manslaughter, the use or threatened use of any other violence or physical or emotional injury, a rape offence within the meaning of the Sexual Offences Act.
The Act specifies that a person is associated with another person if they are or have been married to each other, they are cohabitants or former cohabitants, they are or have engaged in a relationship of a sexual nature, they lived or have lived together in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder, they are relatives, they have agreed to marry one another (whether or not the agreement has been terminated). Or in relation to any child these are persons falling within Section 3 (2) of the Act which notes, “A person falls within this subsection in relation to a child if; (a) he is a parent of the child; or (b) he has or has had parental responsibility for the child.”
However, in order to qualify for a Protection Order, the person must have suffered abuse or harassment. The Domestic Violence Act notes that harassment includes the intimidation of a person by: persistent verbal abuse, threats of physical violence; the malicious damage to the property of a person; inducing fear of physical or psychological violence or any other means. Further, a person may qualify for such order if they are among other things being persistently followed from one place to another, if a person is consistently making unwelcomed communications to them, among other reasons.
APPLYING
At a recent seminar for the media on reporting on domestic violence and sexual offences, Principal Magistrate Sherdel Isaacs-Marcus said that persons seeking a way out of domestic violence can first approach the Court, instead of the police, for help. According to the Principal Magistrate, persons can approach the Clerk of Court of the Magistrate’s Courts in their district to apply for a protection order, which includes an interim order.
She informed, “Persons can apply for protection orders by going to any Magistrate’s Court. The applicant provides the Clerk of Court with the information as it relates to the conduct or words of the abuser. In the alternative, persons can approach the Legal Aid Clinic or an attorney-at-law who can file for a Protection Order with the court’s registry with an Affidavit in Support.”
This simply means that domestic violence victims can approach the court directly to file for a protection order. In addition, a qualified social worker or police officer can do so on behalf of the victim. In the event, the victim is a child under 16, or mentally disabled, the parents or guardian, or the person, with whom the victim lives, or a qualified social worker or a police officer must go to the court and make the application on their behalf.
Nonetheless, the Principal Magistrate said that matters of this nature are treated with utmost urgency and are placed for hearing before a Magistrate the same day or soon after. As it relates to the procedure for hearing an application for a protection order, Section 18 (1) of the Act stipulates that it is to be held in camera, or without an audience, which includes members of the public and the media, unless the court otherwise directs. This means that no person shall publish any report or proceedings under this Act, except with leave of the court, and anyone who contravenes commits an offence and is liable on summary conviction to a fine not exceeding $5,000.
Moreover, once the matter is heard, Isaacs-Marcus said, “Once the Magistrate is satisfied having listened to the applicant or the Affidavit used, the Magistrate can grant an interim order in the absence of the abuser. The abuser must be served personally with the document. The applicant usually accompanied the policeman to serve the document on the respondent (abuser).”
At the second hearing, Isaacs-Marcus said that a Magistrate is empowered to go ahead and hear the matter in the absence of the respondent, or can issue a warrant for his or her arrest. The Principal Magistrate explained that once the matter is heard for the second time, the court has a number of factors to consider like the need to secure the health and well being of the applicant, health and well being of any children, or relevant child, accommodation needs of the applicant, any hardship that may be caused to the abuser, income assets and financial obligations of the abuser, among other things.
In this regard, the Magistrate, she said, can request that a probation report be prepared by a probation officer. As it relates to orders the court can make, Isaacs-Marcus said that the court can restrain the abuser from verbally, and/or physically abusing and/or threatening the applicant or from malicious damage to property.
BREACH
Moreover, the Principal Magistrate said that once the protection order is granted, it prevents the abuser from entering the home or workplace of the applicant or from going anywhere the applicant goes; it can make the abuser provide the victim with money for the upkeep of any children involved; it prevents the abuser from moving the applicant’s property; it also restrains the respondent from contacting, calling or sending any messages to the applicant; it can also make the abuser go into a counseling programme.
According to the Domestic Violence Act of 1996, where the Court proposes to make an order or orders under this Act and the respondent (abuser) is before the court, the court shall before making the order or orders, explain to the respondent (a) the purpose, terms and effect of the proposed order or orders (b) the consequences that may follow if the respondent fails to comply with the terms of the proposed order or orders and (c) the means by which the proposed order or orders may be varied and revoked.
According to the Principal Magistrate, “Once the order is granted by the Magistrate and it is breached, the applicant can go to the nearest police station and make a complaint and the police will charge the abuser in breach of the Domestic Violence order which attracts a fine or imprisonment.”
When it comes to the penalties for breaching a protection order, Section 32 of the Domestic Violence Act specifies that the respondent on summary conviction is liable to a fine not exceeding $10,000 and to imprisonment for a period not exceeding 12 months.
ROLE OF THE POLICE
Under the Domestic Violence Act, the police have an important role to play in ensuring that domestic violence victims are protected. Section 42 of the Act states, “Whenever a police officer intervenes in a case of domestic violence the police officer shall as soon as possible take all the reasonable measures within his power to prevent the victim from being abused again.”
The Act states that where a victim indicates that he/she has suffered injuries, which require medical assistance, the police officer shall assist the victim to obtain medical treatment as soon as possible. It also states that if so requested, the police officer shall accompany the victim where he/she takes his personal belonging from a place where the respondent may reside and advise the victim on the importance of preserving the evidence. Further, the Act says that police officers must inform victims as to his/her rights and services which may be available to assist them whether government or private organisations.

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