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How does Malaysian law define domestic violence?

According to the Domestic Violence Act, “domestic violence” means the commission of one or more of the following acts:

  • wilfully or knowingly placing, or attempting to place, the victim in fear of physical injury;
  • causing physical injury to the victim by such act which is known or ought to have been known would result in physical injury;
  • compelling the victim by force or threat to engage in any conduct or act, sexual or otherwise, from which the victim has a right to abstain;
  • confining or detaining the victim against the victim’s will;
  • causing mischief or destruction or damage to property with intent to cause or knowing that it is likely to cause distress or annoyance to the victim;
  • dishonestly misappropriating the victim’s property which causes the victim to suffer distress due to financial loss;
  • threatening the victim with intent to cause the victim to fear for his or her safety or the safety of his or her property, to fear for the safety of a third person, or to suffer distress;
  • communicating with the victim, or communicating about the victim to a third person, with intent to insult the modesty of the victim through any means, electronic or otherwise;
  • causing psychological abuse which includes emotional injury to the victim;
  • causing the victim to suffer delusions by using any intoxicating substance or any other substance without the victim’s consent or if the consent is given, the consent was unlawfully obtained; or
  • in the case where the victim is a child, causing the victim to suffer delusions by using any intoxicating substance or any other substance

Whom does domestic violence laws protect?

The Domestic Violence Act protects spouses, former spouses, children, family members (adult sons and daughters, fathers and mothers, brothers and sisters, and any other relatives), and “incapacitated adults” who are living as members of the family.

The act also covers “de facto spouses”, which means couples who have gone through a religious or customary marriage ceremony, but did not register the marriage.

The act, however, does not cover non-married couples.

What is an Emergency Protection Order (EPO)?

The Emergency Protection Order (EPO) is issued by the social welfare department (JKM), can be obtained immediately — in most cases, within two hours after you apply for it at JKM.

The EPO may contain one or more of the following orders:

  • prohibiting the perpetrator from using domestic violence against the survivor
  • prohibiting the perpetrator from inciting any other person to commit domestic violence against the survivor; or
  • prohibiting the perpetrator from entering the survivor’s safe place, shelter, place of residence, shared residence or alternative residence.

The EPO is valid for seven days. You don’t need to make a police report in order to obtain an EPO. You can apply for an EPO before obtaining an Interim Protection Order (IPO) or Protection Order (PO).

How to apply for an Emergency Protection Order (EPO)?

You can obtain an EPO by calling Talian Nur (15999) which is available 24 hours a day, or by visiting the nearest JKM office. You should bring your IC and your child’s birth certificate (if applicable) with you to JKM.

What is an Interim Protection Order (IPO)?

An Interim Protection Order (IPO) is issued by the Magistrate Court and is valid throughout the police investigation, before the case is charged in court.

The IPO restrains the perpetrator from using domestic violence against the survivor. The court may also include a provision prohibiting the perpetrator from inciting any other person to commit domestic violence against the survivor.

In addition, the court may also include one or more of the following orders in the IPO:

  • the granting the survivor exclusive occupation of the shared residence by excluding the perpetrator from the shared residence, regardless of whether the shared residence is solely owned or leased by the perpetrator or jointly owned or leased by the survivor and perpetrator;
  • prohibiting or restraining the perpetrator from―
    • entering the survivor’s safe place, shelter, place of residence or shared residence or alternative residence;
    • entering the survivor’s place of employment or school;
    • entering any other institution where the survivor is placed;
    • going near the survivor at a distance of at least fifty metres or at a distance the court thinks reasonable; or
    • making personal contact with the survivor other than in the presence of a police officer or social welfare officer or such other person as specified in the order;
  • requiring the perpetrator to permit the survivor to enter the shared residence, or to enter the residence of the perpetrator, accompanied by a police officer or social welfare officer for the purpose of collecting the survivor’s personal belongings;
  • requiring the perpetrator to avoid making communication by any means with the survivor and specifying the limited circumstances in which such communication is permitted;
  • requiring the perpetrator to permit the survivor to have the continued use of a vehicle which has previously been ordinarily used by survivor; and
  • the giving of any such direction as is necessary and incidental for the proper carrying into effect of the IPO or PO.

Once the police informs you in writing that your case has been charged in court, the IPO would expire within seven days. Thus, you should apply for a Protection Order (PO) as soon as possible.

How to apply for an Interim Protection Order (IPO) ?

You can ask the police officer to start the application for an Interim Protection Order (IPO) when you make a police report.

  • In your police report, state that you want an IPO. The IPO can also cover other family members, such as your children.
  • Get a referral letter from the police, which states that the police is investigating the case.
  • Go to the nearest social welfare department (JKM) office with the police report, referral letter, and your IC.  Inform the welfare officer that you want an IPO.
  • The welfare officer will accompany you to the court to apply for an IPO.

What is a Protection Order (PO)?

A Protection Order (PO) is issued by the Magistrate Court and is valid once the case has been charged in court and during the court trial (following the completion of the police investigation).

The PO restrains the perpetrator from using domestic violence against the survivor. The court may also include a provision prohibiting the perpetrator from inciting any other person to commit domestic violence against the survivor.

In addition, the court may also include one or more of the following orders in the PO:

  • the granting the survivor exclusive occupation of the shared residence by excluding the perpetrator from the shared residence, regardless of whether the shared residence is solely owned or leased by the perpetrator or jointly owned or leased by the survivor and perpetrator;
  • prohibiting or restraining the perpetrator from―
    • entering the survivor’s safe place, shelter, place of residence or shared residence or alternative residence;
    • entering the survivor’s place of employment or school;
    • entering any other institution where the survivor is placed;
    • going near the survivor at a distance of at least fifty metres or at a distance the court thinks reasonable; or
    • making personal contact with the survivor other than in the presence of a police officer or social welfare officer or such other person as specified in the order;
  • requiring the perpetrator to permit the survivor to enter the shared residence, or to enter the residence of the perpetrator, accompanied by a police officer or social welfare officer for the purpose of collecting the survivor’s personal belongings;
  • requiring the perpetrator to avoid making communication by any means with the survivor and specifying the limited circumstances in which such communication is permitted;
  • requiring the perpetrator to permit the survivor to have the continued use of a vehicle which has previously been ordinarily used by survivor; and
  • the giving of any such direction as is necessary and incidental for the proper carrying into effect of the IPO or PO.

The PO is valid for one year and may be renewed for up to another year — as long as there is an ongoing court trial.

How to apply for a Protection Order (PO)?

You can apply for a Protection Order (PO) once your domestic violence case has been charged in court. 

The social welfare department (JKM) officer will accompany you to court to apply for the PO. The JKM officer will bring along a few documents including a letter from the welfare department, a letter from the police confirming that the case has been charged in court, a photocopy of your IC and (if applicable), a photocopy of your children’s birth certificate or IC.

What happens if the perpetrator violates an EPO, IPO, or PO?

If the perpetrator violates an Emergency Protection Order (EPO), Interim Protection Order (IPO), or Protection Order (PO), the perpetrator may be jailed up to 6 months and fined up to RM 2,000 or both.  If the perpetrator also committed acts of violence in violating the EPO, IPO or PO, the perpetrator may be fined up to RM 4,000 or jailed up to one year or both.

If the perpetrator were to violate the EPO, IPO, or PO more than once, the perpetrator may be jailed not less than 72 hours and not more than 2 years, and in addition, also fined up to RM 5,000.

If your EPO, IPO, or PO has been violated, you should make a police report about the violation.

The police can arrest, without a warrant, a perpetrator for violating an IPO or PO.

How can a police officer or social welfare officer assist me?

According to the Domestic Violence Act, police officers and social welfare officers have the following duties:

  • Assisting a survivor of domestic violence to file an application for interim protection order regarding the domestic violence.
  • Providing or arranging transportation for the survivor to an alternative residence or a safe place or shelter if such transportation is required.
  • Providing or arranging transportation for the survivor to the nearest hospital or medical facility for treatment of injuries if such treatment is needed.
  • Explaining to the survivor the rights to protection against domestic violence.
  • Accompanying the survivor to the survivor’s residence or previous residence to collect personal belongings.

Police officers also have the following additional duties:

  • Arresting a perpetrator for breaching an Interim Protection Order (IPO) or Protection Order (PO), or for committing domestic violence against someone protected by an IPO or PO. The police officer may arrest the perpetrator without a warrant.
  • Removing or supervising the removal of a person excluded from a shared residence, where the court has issued an IPO or PO that excludes the person from a shared residence.
  • Informing the survivor on the status of the investigations relating to the offence involving domestic violence.
  • Informing the survivor on the status of the application for an interim protection order or a protection order, including the service of the order, and the relevant court dates relating to the application.

What is the punishment for domestic violence?

The punishment for domestic violence varies, depending on the nature of the offence. The Domestic Violence Act, which defines domestic violence and provides protection orders, is read together with the Penal Code, which outlines punishments for various offences.

An example of a charge for domestic violence is Section 323 of the Penal Code (“punishment for voluntarily causing hurt”), which carries a punishment of imprisonment for up to one year, or a fine of up to RM 2,000, or both.  Click here to view other possible charges and their corresponding punishments.

Penal Code charges are not specific to domestic violence, meaning that one can be charged under the penal code for committing an offence against anyone. However, if one commits certain Penal Code offences against a spouse, the punishment may be greater, compared to if the offence is committed against a non-spouse. Additionally, survivors of domestic violence are also entitled to protection orders under the Domestic Violence Act.  

According to Section 326A of the Penal Code, anyone who causes hurt to one’s spouse and commits an offence under Section 323, 324, 325, 326, 334 or 335 of the Penal Code would be imprisoned for a term up to twice as long as the maximum term of these offences.

For example, if a perpetrator is charged under Section 323 of the Penal Code for causing hurt to a spouse, the perpetrator will be imprisoned for up to two years (instead of up to one year), and may also be fined up to RM 2,000.

Getting Justice for Domestic Violence

You can make a police report in Bahasa Malaysia or English, either by typing it yourself at the police station or by orally dictating it to the police officer. You can also draft your report in advance.

In your police report, write down the details of the abuse, such as what happened, when it happened (date and estimated time), where it happened, and who was involved.  Remember to get a copy of the police report.

If you don’t want to press charges but would like to document the incident, you can make a “cover report” instead of an “action report”.

If you file an “action report”, the Investigation Officer (IO) will open an investigation based on the police report you have made. The IO may interview witnesses, suspects, and may also ask you to give a further statement at the police station. Depending on the evidence, the IO may bring the case to the Deputy Public Prosecutor (DPP).

The DPP will determine whether there is a case to charge against the perpetrator.

If there is insufficient evidence, the case will be closed and classified as ‘No Further Action’ (NFA). Then, there will be no charge.

If the Deputy Public Prosecutor (DPP) decides that there is sufficient evidence, the DPP will charge the suspect. The charge will be read in court and the suspect can either plead guilty or not guilty.

If the suspect pleads guilty, the case will proceed to sentencing. However, if the suspect pleads ‘not guilty’, a full trial begins.

The trial process will begin with the prosecution stage, in which the Deputy Public Prosecutor (DPP) calls witnesses to give their testimony. Following that, the defence lawyer (who is the person defending the accused) will cross-examine the witness; this means, the defence lawyer will ask another set of questions directed at the witness. The DPP then re-examines the witness (by asking questions) in order to explain any doubtful or contradictory answer given by the witness during cross-examination.  

If the judge decides that the evidence is strong enough to show that the accused has committed the crime (i.e. there is a prima facie case), the defence lawyer will begin the defence. At this stage, the defence lawyer will call witnesses to give evidence suggesting that the crime did not happen. The same three-step cross-examination process occurs, except this time, the defence lawyer begins the cross-examination, followed by the DPP, and then the defence lawyer again.

The judge will then decide whether the accused is guilty or not guilty. If guilty, the judge will sentence the accused.

* This is a simplified version of the court trial process. For the full process, refer to http://wccpenang.org/wccnew/wp-content/uploads/2014/09/Surviving-Court-booklet_English.pdf

Reference:

Women’s Centre for Change (WCC Penang), ‘Surviving Court’ <http://wccpenang.org/wccnew/wp-content/uploads/2014/09/Surviving-Court-booklet_English.pdf>

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