Domestic Violence

• Pages: 336-363

CHAPTER 14

DOMESTIC VIOLENCE

PART ONE

DOMESTIC VIOLENCE LEGISLATION

1. INTRODUCTORY

Domestic violence is a hybrid creature of the law in that it straddles both the civil and crimi-

nal arena. With respect to the civil component of domestic violence, the parties are described

as applicant and respondent, not complainant and defendant, with the exception of Barbados

and The Bahamas; the standard of proof is the civil standard; the restraining or prohibition

orders granted are in the nature of the injunctive relief granted by the high court in the exer-

cise of its civil jurisdiction; and the proceedings are conducted essentially as civil proceedings.

However in making protection orders, the court may, and in some of jurisdictions, is required

to attach to the order, a power of arrest for breach of the order. More particularly, where there

is a breach of a domestic violence order, the breach constitutes a criminal offence, in respect

of which criminal sanctions are imposed, whether in the nature of a fine or a term of impris-

onment or both.

2. HISTORY OF DOMESTIC VIOLENCE: AN OVERVIEW

Spousal corporal punishment has long been part of history of the English common law and as

such forms part of the laws of the CC jurisdictions. The common law, in the not too distant

past, not only acknowledged, but also condoned the use of physical force, specifically by the

husband upon the wife. Sir William Blackstone, in his wide ranging and comprehensive

discourse in his celebrated work, Commentaries on the Law of England (1765–1769)1addressed the

ancient privilege of the husband’s right to administer corporal punishment on the wife. He

explained that it was based on the since repealed doctrine of unity of personalities (that a

husband and wife were a legal unity). According to Blackstone, as the husband “has to answer

for his wife’s misbehaviour, the law thought it reasonable to intrust him with this power of

restraining her by domestic chastisement, in the same moderation that a man is allowed to

correct his servants or children for whom the master or parent is liable in some cases to

answer.”2Blackstone noted that the civil law gave the husband the authority to beat his wife

severely with sticks and whips for serious misdemeanours, while for lesser offences, to admin-

ister moderate punishment, but noted that since the reign of Charles the Second, “the powers

of physical chastisement were more properly confined to the lower ranks of people who can

still claim and exert the ancient privilege in the courts of law.”3

1 See Sir William Blackstone, Commentaries on the Laws of England (1765–1769) Book One Chapter 15, Of Husband

and Wife, Blackstone Reprint Oxford Clarendon Press

2 Ibid.

3 Ibid.

Although Lord Halsbury stated obiterin the 1891 case of R v Jackson4that if a husband ever

had a legal right to beat his wife that the entitlement was now obsolete and that the Aggravated

Assaults Act 1853 was enacted specifically to increase the fines for wife beating, it was not until

the passage in 1976 in England, of the Domestic Violence and Matrimonial Proceedings Act,

that legislation was enacted which specifically and far more comprehensively addressed the

broader issue of spousal domestic violence and treated it as the serious criminal offence that it

was. It is to be noted that although the 1976 Act represented a significant legislative break-

through, the view that a husband could not rape his wife remained the law in England until

1991 with the landmark decision in R v R (Rape: Marital Exception).5

Coincidentally, the enactment of the first generation of domestic violence legislation in the

CC jurisdictions began in the 1990s. Prior to the enactment of domestic violence legislation in

the various CC jurisdictions, as was the case in the England until 1976, the remedies available

to spouses or persons in an intimate relationship, were woefully deficient and non-specific,

more particularly, the legislative framework was not designed for or targeted to persons in

domestic relationships who were victims of violence.

On the criminal side, the limited recourse available to victims of domestic violence,

whether male or female, was the filing of a criminal complaint, thereby initiating criminal

proceedings, or causing the initiation of such proceedings against their partners, regardless of

marital status. In terms of civil proceedings, an application could be made for injunctive relief,

which relief was available at the high court level only, or alternatively, proceedings could be

commenced in the lower courts or high court, as the case may be, in respect of the civil tort of

assault and battery. Both civil options, certainly at the high court level, often involved lengthy

and protracted proceedings, and for the majority of victims of domestic violence, a financially

prohibitive recourse.

However since the early 1990s, the CC jurisdictions covered in this text excluding,

Anguilla (which has in bill form a proposed domestic violence act) have enacted domestic

violence legislation. Since then, many of these jurisdictions have either amended, repealed and

replaced the domestic legislation which was enacted in the early 1990s.

3. OBJECTIVE OF DOMESTIC VIOLENCE LEGISLATION

In Trinidad and Tobago, the rationale for domestic violence legislation, a rationale which is

equally applicable to the other CC jurisdictions, is summed up in the Preamble to the Domestic

Violence Act, Chap.45:56 “as the need to reflect the community’s repugnance at the alarming

frequency and deadly consequences of domestic violence and the necessity to strengthen legis-

lation to ensure a prompt and equitable leg al remedy for victims of domestic violence.”

Chapter 14: Domestic Violence 337

4 [1891]1 QB 671, CA.

5 [1991]4 All ER 481, [1992] 1 AC 599, HL. See also Chapter 4, 7D.