HomeOpinion & AnalysisAbusive behaviours warranting ‘protection orders’

Abusive behaviours warranting ‘protection orders’

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By Rinse Nyamuda

TO protect vulnerable people from abusive behaviour(s) perpetrated on them within the family environment, the legislature enacted the Domestic Violence Act.

As prescribed by this Act, if an application is made to court, a protection order may be issued against the abuser to keep the peace with the abused.

This article will briefly outline and discuss the various abusive behaviours that squarely fall under domestic violence and recognised by courts in the issuance of protection orders.

Under section 3 of the Act, an abusive behaviour or domestic violence is defined as any unlawful act or omission of an act which results in the death or direct infliction of physical, sexual or mental injury to any complainant (abused) by the respondent (abuser). It includes:

Physical abuse — this is an actual act or threatened act of physical violence towards an abused.

It is physical assault which is not limited to beating, stabbing, scalding an abused with hot cooking oil or any burning chemicals, to mention just a few.

Sexual abuse — is any conduct that humiliates, degrades or otherwise violates the sexual integrity of the abused.

This may be mere commenting on the biological make-up of an abused which has a negative or positive sexual connotation.

Emotional, verbal and psychological abuse — this is a pattern of degrading or humiliating conduct towards an abused which includes: repeated insults, ridicule, name-calling; or threats to cause emotional pain; or exhibition of obsessive possessiveness which constitutes a serious invasion of an abused’s privacy, liberty, integrity or security; any act or omission of an act constituting domestic violence which, when committed in the presence of minor members of the family, is likely to cause mental injury to both minor(s) and the abused. In certain instances, this may extend to locking up or restricting the movements of an abused.

Economic abuse — this is the unreasonable deprivation of economic or financial resources to which an abused is entitled under the law or requires out of necessity.

The unreasonable deprivation may be of household necessities, medical expenses, school fees, mortgage bond and rent payments, or other essential expenses.

This may also encompass denying an abused the right to seek employment or engage in any income-generating activity.

Intimidation — is uttering or conveying a threat or causing an abused to receive a threat which induces a fear of imminent harm.

This imminent harm is premised on the known violent historical behaviour of the abuser towards the abused.

Harassment — this is engaging in a pattern of conduct that induces in an abused fear of imminent harm or feelings of annoyance and aggravation.

This includes: watching or loitering outside or near the building or place where an abused resides, works, carries on business, studies or happens to be; repeatedly making or sending or causing another person to make or send abusive phone calls or electronically-transmitted messages to an abused, whether or not conversation ensues; sending, delivering or causing the delivery of offensive or abusive letters, telegrams, packages, facsimiles, emails or offensive objects to an abused.

Stalking — this is following, pursuing, or accosting an abused wherever, without his or her consent.

Malicious damage to property — this is the cruel destruction of any property belonging to an abused.

Normally, this happens in a fit of rage where the abuser destroys movable or immovable property belonging to an abused such as destroying household property or smashing of window panes of a house.

Forcible entry into an abused’s residence where the parties do not share the same residence.

Some abusers tend to justify this forced entry on the basis of owning the property or paying rent on behalf of an abused. Such justification can be deemed to be abusive.

Depriving an abused of or hindering access to or a reasonable share of the use of the facilities associated with an abused’s place of residence.

This includes restricting an abused from the free and enjoyable use of any facilities that form part of the residence.

Unreasonable disposal of household effects or other property in which an abused has an interest. In worse situations, an abused learns through either neighbours, a purchaser or upon being served with summons of eviction that the property in which he or she has an interest has been sold to another person.

Abuse derived from cultural or customary rites or practices that discriminate against or degrade women. This includes: forced virginity testing; female genital mutilation; pledging of women or girls for purposes of appeasing spirits; forced marriage; child marriage; forced wife inheritance; sexual intercourse between fathers-in-law and newly married daughters-in-law.

Abuse perpetrated on an abused by virtue of an abused’s age, or physical or mental incapacity.

Abuse perpetrated on an abused by virtue of an abused’s physical, mental or sensory disability, including a visual, hearing or speech functional disability.

Abuse perpetrated on an abused by virtue of an abused’s mental illness, arrested or incomplete development of the mind, psychopathic disorder or any other disorder or disability of the mind.

Any act of domestic violence perpetrated on the person or property of an abused’s representative.

Without any form of justification, the above abusive behaviours or acts warrant issuance of a protection order by courts.

However, it is apparent and normal that not every abused person can stand up against or challenge an abuser due to some form of incapacity such as infirmity, age or mental disability.

In such circumstances, capacitated persons are urged not turn a blind eye on the above abusive behaviours when they are happening or perceived to be happening in our communities.

The Domestic Violence Act empowers persons, whether related or not, to act in a representative capacity of the incapacitated abused persons in the application of a protection order.

Such capacitated persons, may include, police officers, social welfare officers, employer of the abused person, relative, neighbour, fellow employee of an abused or a counsellor.

In addition, any person acting on behalf of a church, a private voluntary organisation with interests and welfare of victims of domestic violence, are also capacitated to act in a representative capacity or assist the incapacitated abused person(s) in applying for a protection order.

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