The defenders of Malta’s femicide law say the goal is to do justice to the victims of violent crime, as the law is set to face its first test after being challenged in court.
Lawyers representing Roderick Cassar, who is accused of killing his wife, Bernice, have filed a constitutional application challenging the new femicide law on grounds that it is discriminatory, sexist and breaches his right to a fair hearing.
The woman was assaulted and shot dead in November last year, with her estranged husband being arrested and charged with her murder.
Cassar is the first person to be charged with the aggravating crime of femicide, introduced into the criminal code in June.
Speaking to Times of Malta, lawyer Therese Comodini Cachia explained that while the criminal code does not specifically make femicide a distinct crime, as the crime itself remains homicide, it provides for a sentencing rule in circumstances which amount to femicide.
This means that when the court is determining what punishment to give to a person found guilty of killing or trying to kill a woman, it must consider circumstances that militate against leniency. This includes circumstances where a woman is killed within an intimate partnership or family relationship, for misogynistic or gender motives, honour killings or when the killing is the result of sexual violence or the victim’s involvement in prostitution or human trafficking.
Further to this, the defence of sudden passion is no longer valid in femicidal circumstances.
In general, the current legislation adequately meets Malta’s obligations in terms of international human rights law, she believes.
“International human rights law recognises the vulnerability of women to violence, which reflects prejudices and stereotypes that are embedded in cultural, religious, political and social spheres.”
This, in turn, imposes an obligation on states to not only prevent gender-based violence and protect women but also ensure that the prosecution and sentencing of such crimes are not shackled by a legal defence meant to excuse it, Comodini Cachia continued, “Such defence would in itself constitute a form of discrimination against women and justify violence against women,” she said.
Since 2009, the European Court of Human Rights has considered gender-based violence to be a form of discrimination against women and recognised the obligation of states to protect women.
“It has clearly recognised that domestic violence affects predominantly women and that passivity of the authorities often creates a climate conducive to such violence. It expects authorities to carry out autonomous, proactive and comprehensive risk assessments to identify if there exists a real and immediate risk to the life of an identified victim and, where there is an identified risk, states are required to take preventive operational measures,” Comodini Cachia said.
A categorical message to society
“Perhaps what we should be discussing is a claim of a violation of the right to life and a violation of the prohibition of discrimination by the families of women killed as a consequence of the lack of those preventive operational measures.
“In every case where a state entity failed to address domestic violence reports or failed to act against gendered violence with special diligence, there is a likelihood that it is the victim’s human rights that were violated.”
Another lawyer, who was involved in the drafting of the law and asked not to be named, said that Malta’s legislation was not created in a vacuum and that Cyprus passed a law making femicide a distinct offence shortly after Malta did.
She said that, though the possibility that the law would be challenged was always considered, whether it is unconstitutional or not was a matter of perspective.
“Ultimately, the law was conceived from the notion that killing a woman because she is a woman is unacceptable and that, in certain circumstances, one should not consider leniency and prevent people from taking advantage of the law to excuse their behaviour,” she said.
However, did this not extend to taking the sudden passion defence off the table completely?
“There are circumstances in which the defence is legitimate, there are situations in which a human being is driven to their limit; however, in femicidal circumstances, this is not justifiable,” she said.
Equality Parliamentary Secretary Rebecca Buttigieg said that introducing the concept of femicide was an “important step” in the fight against domestic violence and misogynistic crime.
“The law spearheaded by this government sends a categorical message to society that violence towards women simply because of their gender will not be accepted in any situation and for no reason,” she said.
“As a country, we need to ensure that we condemn any instance in which a woman is violated on the basis of her gender. This can be achieved through a collective societal effort to eliminate the persisting culture of abuse on women, mothers and daughters once and for all.”