Domestic violence: know your rights

THE courage to speak out may be regarded as a courageous characteristic to many but to a victim of domestic violence such courage can be the very deterrent from them getting help.

Society has evolved but the “shame” and “blame” is still trite.

Domestic violence can reduce a highly functional, educated and strong minded individual to being fearful and isolated. Domestic abuse is from a person related to the victim by family relations. It can be a spouse, parent, sibling, child, etc. The abuser often uses violence as a mechanism to maintain power over their victim. The abuse manifests itself in the form of harassment and intimidation, emotional, physical, mental, and even financial abuse.

Financial abuse is when the abuser fails to maintain the victim by financially depriving them from the basics such as the payment of a bond or utilities. While it is more prevalent with women, men are also victims.

Domestic violence does not discriminate and can occur in heterosexual relationships and same-sex partnerships. Often clients ask me if I believe they are a victim of abuse. My answer is with three simple questions: When you are around this person - do you walk on eggshells?, are you afraid that a simple act by you may result in a blow up?, and do you feel a sense of edginess?

If any of these questions are answered in the definitive it most probably is a sign of abuse in view of fear of this person. No relationship is perfect. However, the fear that is instilled after a usual disagreement can be the exact trait of an abusive relationship. Victims of abuse usually have a telling sign such as isolation, fear to speak or being unusually anxious around the abuser, physical scars, depression etc.

Children who are abused may refer to leaving their home, miss school and decline in grades .The victim is to gather as much information as possible as proof of the abuse. This, among others,  include photographs of the abuse, recordings and statements of those who witnessed the abuse. It is advisable to report incidents as they happen to the local police station, social services and places of authority such as schools to show a trail of incidents.

A doctor’s examination will assist for medical proof. A victim of abuse can approach the magisterial court in their jurisdiction to apply for a protection order on their own or via an attorney. It is always advisable to secure the services of an attorney specialising and experienced in this field to ensure a smooth process. Often victims are unable to articulate and determine what is the important information required to convince a court that protection is required.

A trained attorney will assist to place before a court the relevant information. There are exceptions to a person making an application on their own. This includes if the victim is a minor child, unconscious or mentally incapacitated person. A parent, legal guardian or interested party concerned about the well-being may approach a court for relief on behalf of the victim. The facts are then considered by the court, and they either grant an interim protection order or a notice to show cause.

A return date will then be given for the parties to return for an appearance. If an interim order is granted the victim has interim relief until finalisation of the matter. If the alleged abuser disobeys the order it can result in that person being imprisoned, fined or both. Accompanied by the interim protection order is often a warrant of arrest whereby the victim can approach the police to have the alleged abuser arrested for disobeying the order. If the police are satisfied that the victim suffered harm they may arrest the abuser.

In a notice to show cause there is no immediate warrant of arrest. The alleged abuser will be ordered by court to on the return date appear in court on that day and give reasons as to why a protection should not be made against them. Orders however will not be in force until it is served on the alleged abuser. The order will be served by police or sheriff on the alleged abuser personally. The proof of service will then be filed with the court.

To alleviate the alleged abuser from evading service the victim is to maintain silence on the steps to follow and can do a physical point out of the victim if necessary to ensure proper service. The court can grant orders not to commit any act of abuse, not to enter a residence or shared residence, not enter a place of employment or specific area of the victim, making payment of necessities, not threatening those related to the victim, not to harass the victim, seizure of weapons such as firearms, etc.

If the alleged abuser does not appear on the return date the court may make the order a final order. If the alleged abuser does appear the court will then allow the alleged abuser to place before court evidence by way of affidavits. The matter will then be postponed to a further date for the victim to respond. The courts will hear submissions from both sides and at a final hearing decide if it is in the interest of justice that the order can be made final or not.In essence abuse in any form is never acceptable irrespective of gender, race or age.

Children become accustomed to the abuse and see it as a form of the norm. we are to break this silence and break the norm of it being “okay”. The courts are accessible and protection is available to ensure safety and for the preservation of dignity. We need to encourage “speaking out”.

Serisha Inderjeeth is a practicing attorney with experience and specialising for over 14 years in family, matrimonial, domestic violence and harassment. She has been affiliated to various abused victim organisations and been a panel member at numerous state and private educational discussions on domestic violence and abuse.

THE POST