Victims of domestic violence could see the immediate eviction of perpetrators from the family home, according to changes to the law being considered by the government. 

The change will give victims reprieve from the current situation, which often sees them moving out of the family home until the court case starts being heard.

Under the proposed amendments, the police receiving a complaint could ask the duty magistrate to issue a temporary protection order against the perpetrator if a risk assessment shows the victim is at serious risk of harm.

The temporary protection order will have to be issued by a magistrate within 12 hours and can be communicated by email in emergency situations.

The change forms part of a wide-ranging reform to criminal and civil laws that deal with gender-based violence being piloted by the Civil Liberties Ministry.

The changes were drafted by lawyer Roberta Lepre, a long-standing advocate of crime victims’ rights. A spokesman for the ministry said temporary protection orders would address an issue victims of domestic violence have long highlighted as a major failing in the system.

“As things stand victims are penalised for reporting the crime because the available options are to return to the family home alongside the perpetrator or move out as if they have done something wrong,” he said.

A temporary protection order would ensure the perpetrator is removed from the house pending the start of the court case proper, when a protection order is normally issued.

The proposed changes also include harsher penalties, including imprisonment, for perpetrators who breach conditions of a protection order.But the legal changes proposed by Dr Lepre also cover other issues, including a clearer definition of rape.

The law will specify that rape is “non-consensual… vaginal, anal or oral penetration of a sexual nature of the body of another person” with any bodily part or object.

As things stand rape is defined vaguely as “carnal knowledge” and presupposes violence. The law currently does not make reference to consent and does not specify whether the insertion of an object is rape.

It is also being proposed that the burden of proof of consent shall lie on the accused and that penetration shall be deemed to be complete by “the commencement of the carnal connection”.

According to the ministry spokesman the changes will transpose into law the provisions that emanate from the Istanbul Convention, which Malta ratified in 2014. The convention is a Council of Europe convention against violence against women and domestic violence.

“What we are proposing goes beyond the convention since we are widening it to gender-based violence rather than just limiting it to violence against women and while in the process some archaic laws will also be removed,” the spokesman said.

The draft changes are currently being evaluated by the ministry and will be presented to Cabinet shortly.

“We would like to have the parliamentary debate started by the end of the year,” the spokesman said, adding a consultation period will precede the Bill.

Part of the reform process will also include the formulation of standard operating procedures to be used by the police, social workers from Appoġġ, a government agency, and healthcare professionals, when faced with victims of domestic and sexual violence.

The spokesman acknowledged more had to be done to make police officers more sensible to the trauma victims face when they handle reports at police station level.

“Apart from having training programmes, the standard operating procedures will provide clear guidelines on how to act in these circumstances,” the spokesman added.

Coming down hard

A snapshot of what is being proposed to tighten criminal provisions that deal with gender-based violence.

General increase in fines and prison terms for most crimes of a sexual and violent nature.

In certain crimes such as rape, the court will not be able to hand down suspended sentences or probation orders.

The existing provision whereby the criminal court can award compensation to a victim for damages and physical injury will be extended to cover moral harm.

The duty magistrate will be obliged to issue a temporary protection order for the victim within 12 hours of a criminal complaint being filed.

Rape will become more specific and include penetration by objects and not just body parts.

kurt.sansone@timesofmalta.com