By Eric Toh

Based on statistics published by the Women’s Aid Organisation, there were 5,421 reported cases of domestic violence in 2018.[1] The statistics also show that the majority of both domestic violence survivors and perpetrators are individuals between the age of 26 to 35.[2]

This article provides a brief overview of the Domestic Violence Act 1994, beginning with the description of what constitutes an act of domestic violence under the Act. This article will then provide a summary of the protection orders that may be obtained by victims under the Domestic Violence Act 1994, which are the emergency, interim protection and protection orders. Finally, this article will address how a domestic violence victim can claim compensation from the perpetrator pursuant to the Domestic Violence Act 1994.


What is Domestic Violence?

The Domestic Violence Act 1994 provides that any of the following acts will amount to domestic violence (“Acts of Domestic Violence”):[3]

  1. Wilfully or knowingly placing, or attempting to place, the victim in fear of physical injury;
  2. causing physical injury to the victim by such act which is known or ought to have been known would result in physical injury;
  3. 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;
  4. confining or detaining the victim against the victim’s will;
  5. 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;
  6. dishonestly misappropriating the victim’s property which causes the victim to suffer distress due to financial loss;
  7. threatening the victim with intent to cause the victim to fear for his safety or the safety of his property, to fear for the safety of a third person, or to suffer distress;
  8. 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;
  9. causing psychological abuse which includes emotional injury to the victim;
  10. 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
  11. in the case where the victim is a child, causing the victim to suffer delusions by using any intoxicating substance or any other substance.

Further, to constitute domestic violence under the Domestic Violence Act 1994, the above acts have to be committed by an offender, whether by himself or through a 3rd party against: [4]

  1. his or her spouse;
  2. his or her former spouse;
  3. a child who is a member of the offender’s family or of the family of the offender’s spouse or former spouse;
  4. an incapacitated adult; or
  5. any other member of the family (e.g. adult children, parents or siblings of the offender).

(collectively referred to as “Possible Victims of Domestic Violence”)

The Domestic Violence Act 1994 expressly refers to spouses and does not apply to unmarried couples.


Protection Orders

There are three types of protection orders available to victims of domestic abuse. These are:

  1. Emergency Protection Order;[5]
  2. Interim Protection Order;[6]
  3. Protection Order[7]

Emergency Protection Order (EPO)

Who can apply:

  1. Victims who fall under point 1 or point 2 of the Acts of Domestic Violence listed above, or the victims’ lawyer.
  2. Where the victim is a child or an incapacitated adult, the guardian, relative or the carer of the child or incapacitated adult can apply on their behalf.
  3. Applications may be made in the absence of the offender.

Where to apply:

  1. Apply at the Social Welfare Department, also known as the Jabatan Kebajikan Malaysia (“JKM”) office nearest to where the victim or the offender resides, the domestic violence occurred or where the victim is temporarily sheltered.
  2. Can be applied pending the application for an Interim Protection Order (IPO) or Protection Order (PO).

How it is issued:

  1. Issued by a social welfare officer from the JKM.
  2. Valid for 7 days from the date of issuance of the order.

Effect:

  1. Prohibits an offender from using acts of domestic violence or inciting another person to commit the acts of domestic violence as listed in point 1 or point 2 of the Acts of Domestic Violence above against the persons in the Possible Victims of Domestic Violence list above.
  2. Prohibits the offender from entering a protected person’s place of residence or shelter.

Punishment for breach:

  1. Fine not exceeding RM2,000 or imprisonment not exceeding six months or both.
  2. If EPO is breached by using violence on a protected person, fine not exceeding RM4,000 or imprisonment not exceeding one year or both.
  3. Repeated breaches of the EPO by using violence on a protected person will result in imprisonment of not less than 72 hours and not more than two years, and a fine of not exceeding RM5,000.


Interim Protection Order (IPO)

Who can apply:

  1. Victims of Acts of Domestic Violence or the victim’s lawyer or social welfare officer from the JKM.
  2. Where the victim is a child or an incapacitated adult, the guardian, relative or the carer of the child or incapacitated adult can apply on their behalf.
  3. Applications may be made in the absence of the offender.

Where to apply:

  1. Apply at the JKM nearest to the victim’s residence. However, a police report and referral letter are required. When making a police report, a victim should inform the police officer that he/she wishes to apply for an IPO.
  2. The victim can then obtain a referral letter from the police officer and bring the letter together with the police report to the JKM office.
  3. The victim can then inform the social welfare officer that he/she wishes to apply for an IPO.
  4. The social welfare officer will make arrangements to accompany the victim to the court to apply for an IPO.

How it is issued:

  1. Usually issued by the Magistrates Court.
  2. Valid until:
    • Completion of criminal investigations and no further action is taken against the alleged offender;
    • 7 days after the victim is informed about the commencement of criminal proceedings against the offender and no application for a protection order is made;
    • Determination of an application for a protection order; or
    • Set aside by the court.

Effect:

  1. Prohibits the offender from using domestic violence against a victim, child or incapacitated adult.
  2. Additionally, an order can also:
    • Grant a protected person the right to exclusive occupation at a shared residence;
    • Prohibit the offender from entering any place of residence, shelter, place of employment of a protected person or going near any protected person at a distance of at least 50 metres;
    • Prohibit the offender from personally contacting any protected person other than in the presence of a police officer or social welfare officer or deny communication altogether; or
    • Require the offender to permit a protected person the control and possession of a vehicle that was previously used by the protected person.

Punishment for breach:

  1. Same as for EPO

Protection Order (PO)

Who can apply:

  1. Same as for IPO

Where to apply:

  1. Apply at a court nearest to where the victim or the offender resides, the domestic violence occurred or where the victim is temporarily sheltered;
  2. Apply within seven days after the victim has been informed that an offender will be charged in court for the act of domestic violence; or
  3. At any stage of the criminal proceedings where the offender is charged with an offence involving domestic violence.

How it is issued:

  1. Issued by the Court.
  2. Valid for 12 months from the date of commencement of the order, but:
    • New orders may be made / existing PO may be renewed if the offender contravenes the existing order.
    • Existing order may be extended once, for no longer than 12 months, if the court is satisfied that the extension is necessary for the protection and personal safety of the protected person or persons.

Effect:

  1. Same as for IPO

Punishment for breach:

  1. Same as for EPO


Compensation

Pursuant to section 10 of the Domestic Violence Act 1994,[8] a victim of domestic violence may claim for compensation for:

  1. Personal injuries;
  2. Damage to property; or
  3. Financial loss as a result of domestic violence.

In considering a claim of compensation, the court may take into account:[9]

  1. The pain and suffering of the victim, and the nature and extent of physical injury or psychological abuse, which includes emotional injury suffered;
  2. The cost of medical treatment;
  3. Loss of earnings;
  4. Value of property damaged;
  5. Reasonable expenses incurred by the victim who is forced to live separately from the offender due to domestic violence such as lodging expenses, moving expenses and rental payments.

Case Example:

In Chin Yoke Yin v Tan Theam Huat,[10] the wife petitioner sought damages for domestic violence against the husband respondent during the course of divorce proceedings. The husband respondent argued that damages for domestic violence could not be awarded in divorce proceedings and that the High Court did not have jurisdiction to hear the matter.

The High Court held that it did have jurisdiction to award for damages for domestic violence. The High Court then awarded compensation of RM 4,000 to the wife petitioner based on the medical report which was the evidence of her injuries due to domestic violence.

In conclusion, if you are personally suffering from domestic violence or know of someone who is suffering from domestic violence, do seek immediate help from the police, JKM officers, NGOs such as Women’s Aid Organisation or a lawyer. One or more of these parties can assist you in obtaining the protection orders to prevent further harm to you or your loved ones.

After you have removed yourself from harm’s way and are in a safe and settled environment, there are laws in place for you to consider filing a claim against the perpetrator for compensation due to the injuries and losses suffered by you or your loved ones as a result of the domestic violence, if you wish to do so.

[1] Women’s Aid Organisation, https://wao.org.my/domestic-violence-statistics/, 19 March 2020

[2] Ibid

[3] Section 2 Domestic Violence Act 1994

[4] Ibid

[5] Section 3A Domestic Violence Act 1994

[6] Section 4 Domestic Violence Act 1994

[7] Section 5 Domestic Violence Act 1994

[8] Section 10(1) Domestic Violence Act

[9] Section 10(2) Domestic Violence Act

[10]  [2015] 11 MLJ 577

By Eric Toh

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