Domestic Violence: Men Can Be Victims Too!

Traditionally, women were seen as the victims of domestic violence and men were viewed as the perpetrators of such violence. However, it should be recognized and accepted that both men and women can be victims of domestic abuse. Recently in Barbados, the legislature amended the Domestic Violence (Protection Orders) Act, Cap. 130A (‘the principal Act’) to make provision for a comprehensive definition of the term domestic violence; to extend the classes of persons who are considered to be victims of domestic violence, among other things. The recently passed Domestic Violence (Protection Orders) (Amendment) Act, 2016 (‘the 2016 Act’) reforms the law on domestic violence and reflects the realities of a modern society by maintaining the use of gender neutral language.

The gender neutral language is notable in the given definitions of important terms. In the 2016 Act, victim is defined as “a person against whom an act of domestic violence is committed and includes a child”, and perpetrator is defined as “a person who commits an act of domestic violence”.

Previously, the principal Act did not define “domestic violence” or “domestic relationship”. The 2016 Act inserts the following definition of domestic violence: “the wilful infliction or threat of infliction of harm by one person in a domestic relationship upon another person in that relationship and includes child abuse, emotional abuse, financial abuse, physical abuse and sexual abuse”.

The 2016 Act defines “domestic relationship” as “the relationship between a perpetrator of domestic violence and victim who is a spouse, former spouse, child, dependant or other person who is considered to be a relative of the perpetrator by virtue of consanguinity or affinity and includes cohabitational and visiting relationships”.

Some men complain that police officers do not take seriously men’s complaints of domestic violence. Section 11A (1) of the principal Act as amended by the 2016 Act now provides that “a member of the Police Force shall respond to every complaint alleging domestic violence”. Men who allege that they are victims of domestic violence may therefore find solace in this provision.

Both men and women should note that, as mentioned above, the 2016 Act makes clear that domestic violence is not limited to physical or sexual abuse but extends to emotional abuse and financial abuse. The 2016 Act defines the above categories of domestic violence as follows:

• Physical abuse means “any act or omission by a perpetrator which causes pain or injury to the body of a victim”;

• Sexual abuse means “the performance by a perpetrator of a sexual act on a victim by the use of force, threats, fear, manipulation or guile and includes the actual or attempted commission of any of the offences stated in Part I of the Sexual Offences Act, Cap. 154”. The offences under Part I of the Sexual Offences Act include, among other things, rape, incest, buggery, indecent assault and serious indecency.

• Emotional abuse means “any act by a perpetrator which causes psychological pain or injury to a victim and includes harassment, the use of threatening words or behaviour and withholding from a victim, access to the victim’s child, parent or guardian”;

• Financial abuse means “the exercise of control by a perpetrator over a victim’s access to financial resources through coercion, deception or intimidation, the effect of which is to hinder the victim’s financial independence or ability to maintain a child or dependant or to ensure financial dependence on the perpetrator and includes exploitation of the victim’s financial resources and withholding the financial support necessary to maintain a victim, child or dependant”.

This piece of reformatory legislation is expected to aid members of the society to accept that men can also be victims of domestic abuse and assist in combatting the scourge of domestic violence.

 

                                -Kara-Je Kellman

Yes! A Man Can Rape His Wife!

In a previous article, we discussed whether a man can rape his wife in the Barbadian context in light of the Sexual Offences Act CAP 154 (‘the Act’) of the Laws of Barbados. Previously, the Act provided that the husband was only guilty of the offence of rape on his wife where there was in existence in relation to them a decree nisi of divorce; a separation order within the meaning of Section 2 of the Family Law Act; a separation agreement; or an order for the husband not to molest his wife or have sexual intercourse with her.

However, as recently as last night, the Senate of Barbados passed legislation creating the offence of marital rape. The Sexual Offences (Amendment) Act, 2016 is an Act amending the Sexual Offences Act CAP 154 to provide for the circumstances under which the offence of rape is committed by a husband against his wife. Consequently, it removes the restrictive circumstances under which the husband may commit the offence of rape on his wife.

Section 3 (4) of the Act now reads “A husband commits the offence of rape where he has sexual intercourse with his wife without her consent by force or fear, where he knows that she does not consent to the intercourse or is reckless as to whether she consents to the intercourse.”

Therefore, the Barbadian legislation now provides for the offence of marital rape, specifically as it relates to the husband committing the offence against his wife. This will be a welcomed change for some who believe that marriage should not erase the possibility of one partner raping the other. There are some others however who will be disturbed by this amendment since they are very devoted to traditional views. In my view, this new amendment should be embraced as it is definitely a step forward in the right direction.

                                                                                                                                           -Kara-Je Kellman

Do Fathers Have Equal Rights?

The hearts of young children are delicate organs. A cruel beginning in the world can twist them into curious shapes. The heart of a child can shrink so that forever afterward it is hard and pitted as the seed of a peach. – Sir Hugh Wooding

This is why parents are under an obligation to create a nurturing environment for their children. However there is no doubt that many men feel that the law does not favour them when it comes to the custody of their children.

Meaning of Custody
When considering the custody of a child the terms custody, care and control are used. In many consent orders custody is shared and care and control is given to one parent with the other being given liberal access to the child.

Custody refers to the rights and duties and powers of the parent or guardian in relation to the child, which terminate at the age of majority. Care and control or possession of the child is a subset of those rights, which terminate at an earlier age, at the age of discretion.

Contentious Issues Over Children
It is expected that the parents will act in a mature way always keeping in mind that the welfare of the child is of paramount importance.

Nevertheless where parents find themselves before the Courts it is often the case that parents are filled with mixed emotions about each other. Sometimes having been hurt in the relationship one or both might feel bitter toward the other.

Indeed they might argue that it could never be in the best interest of the child for the other parent to have care and control. This is where the Court is called upon to make a decision.

There is a perception that the Courts will always find in favour of the mother unless she has some serious problem which makes her incapable of caring for the child.

Let us see what the law says.

The Historical Perspective
The common law, which Barbados inherited from the British, established that the mother had the right to the custody, care and control of a child born outside of marriage. On the other hand with respect to the child born within marriage, the father’s right to custody, care and control was superior to that of the mother.

Arguably however with the introduction of the Status of Children Reform Act 1979 (Cap. 220 of the Laws of Barbados) and other such legislation across the Caribbean where all children are to be treated equally, that distinction in the allocation of parental responsibility has changed. Section 3 of the Act states:

For the purposes of the laws of Barbados the distinction at common law between the status of children born within or outside of marriage is abolished, and all children shall, after the commencement of this Act, be of equal status; and a person is the child of his or her natural parents and his or her status as their child is independent of whether the child is born within or outside of marriage.

In Barbados the rights of the putative father with respect to a child born out of marriage is linked to cohabitation with the mother in a union other than marriage which is recognised under the Family Law Act. If no such union exists then the father has no automatic parental rights unless there is declaration of paternity in his favour. Once that paternity has been established however it would seem then that the law will view both parents as equals.

No Presumption that a Child should be with either Parent
In the case of Edwards v. Edwards (Barbados: Unreported No. 187 of 2004) where one of the children in question was 10 months old Justice LeRoy Inniss stated:

There is no presumption that it is in the interest of children to be with either parent. In considering all of the evidence however, it cannot be ignored that nature has provided a mother with a special source of easily available nutritious food for her young. No doubt in the very act of feeding, besides receiving physical nourishment, a close bond is created between mother and infant child. It is only for some compelling reason that a court should seek to overrule nature.

He concluded that he had found no reason in this case.

The Court therefore found that the mother could take the children from Barbados even though she had absconded with them previously. The fact that the father feared that he might never see them again was not persuasive enough.

The Court felt that the Canadian courts would exercise their jurisdiction to assist the father if the mother prevented him from seeing the children.

Father Awarded Custody
In the case of Gill v. Gill  (Barbados: Unreported No. 302 of 1988) the children were in their early teens and had been living with their mother in British Colombia. There had been an interim order there giving the mother care and control of the children. Chief Justice Sir Denys Williams in this case acknowledged that the father had taken the children from British Colombia by means of a trick.

While he did not condone the flouting of the order of that Court he took the view that in examining the circumstances that the children were better off with their father in Barbados. They were doing well in school and close to taking their Advanced Level examinations and had been in Barbados for over two and a half years.

The Chief Justice spoke to the children and took their views into account. The CJ acknowledged that they had grown accustomed to life in Barbados with their father and therefore it would be upsetting and unsettling for them to be taken away from the environment to which they had grown accustomed. The Court therefore found that the father should have care and control.

So it is clear that the law recognises that each parent is equally entitled to custody of the child. One should note however that the Courts are not immune from the influence of cultural norms and it would therefore not be surprising if mothers, all things being equal might have a slight advantage in the case of very young children.

    -Lynette Eastmond