Lawmakers on both sides of the Parliament have agreed to explore the possibility of making domestic violence a stand-alone crime amid uncertainty about what would constitute the offence.
“I would certainly ask that it be up for discussion,” said Olivia Grange, chairman of the Joint Select Committee of Parliament that is reviewing the Domestic Violence Act, during a meeting on Wednesday.
Her suggestion was embraced by government and opposition members of the committee from both the Lower and Upper Houses of Parliament.
However, Solicitor General (SG) Marlene Aldred indicated to the committee that it would first have to define domestic violence.
“This act does not define it,” said Aldred, making reference to the Domestic Violence Act.
“You will first need to define what you mean by domestic violence before you can then decide that you are going to criminalise it,” she cautioned.
But opposition Senator Donna Scott Mottley said she believed it was “worth the effort for us to sit down and really consider it because I believe that until we criminalise it, we will not have it be taken seriously”.
“I understand what the SG [is saying] and I respect it, but I think that this committee should at least take that step so that a clear signal is sent to everybody that it is not a matter … [to] be taken lightly,” said Scott Mottley, who is also an attorney.
However, another member of the committee, government backbencher Marlene Malahoo Forte, took “a slightly different view”.
She acknowledged the need for a revised approach to tackling the issue of domestic violence but said: “I see it differently about the need to create domestic violence as an offence and to define it.
“I am not on that train at this time, but, of course, I could always be persuaded. But I am not so persuaded right now,” said Malahoo Forte, a former attorney general and minister of legal and constitutional affairs.
GRAVE CONCERN
She acknowledged, too, that the issue of domestic violence in Jamaica is of grave concern “literally and metaphorically” but cautioned her colleagues to “pause and consider whether we want to add this layer”.
Asserting that “we are not short of laws in this country”, Malahoo Forte said: “I don’t believe in overcriminalising our people”.
“We have numerous offences … a wide range of the conduct referred to as domestic violence already constitutes offences under the law of Jamaica,” she said.
“Every time we ask for additional provisions, not recognising that many of what we ask for is already in laws that we have passed [or] already in amendments that we have passed.”
It is reported that roughly 63 per cent of domestic violence incidents in Jamaica go unreported because victims are fearful.
Malahoo Forte’s views are in line with a 2016 report drafted by a previous Joint Select Committee of Parliament, which also conducted a review of the Domestic Violence Act.
REPORT FINDINGS
Noting that physical and psychological abuse are among the elements of domestic violence, the 2016 report opined that a stand-alone crime of domestic violence would be difficult to prosecute.
The report noted, too, that in domestic violence cases involving physical abuse, charges could be filed against the perpetrator under the Offences Against the Person Act for assault, assault occasioning grievous bodily harm, wounding with intent, wounding, unlawful wounding and rape, including marital rape.
Perpetrators could also face criminal charges under the Sexual Offences Act, the report added.
“We were, therefore, of the view that instead of seeking to criminalise domestic violence, the act should be strengthened,” said the report, which proposed a number of recommendations to bolster the law.
Some of the recommendations, including making it a criminal offence to breach a protection order imposed by the court, were implemented when the Domestic Violence Act was amended in 2023.
However, the suggestion that domestic violence become a stand-alone offence was placed before the Grange committee by a civil society group, and this time, lawmakers from both sides say they are prepared to consider it.
Scott Mottley said she had “absolutely no hesitation in saying it should be criminalised”.
“We, in the Parliament, have always used legislation to signal how we feel about certain issues. If we continue to treat domestic violence as being compartmentalised to protect an abuser, then I think that we would have failed at what it is that we have to do,” she said.