#BTColumn – The intent and spirit of the law

Disclaimer: The views and opinions expressed by this author are their own and do not represent the official position of the Barbados Today Inc.

This week I wanted to broadly examine the Cap 130A Domestic Violence (Protection Orders) (2016) Act. An appeal has been filed by Attorney at Law Lalu Hanuman in reference to a matter under the Act. The matter is filed as Court of Appeal reference number 1 of 2020. While I am not at liberty to delve into the specific matter, I wanted to examine more closely the legislation and what it says.

The Domestic Violence (Protection Orders) Act is the primary piece of legislation to protect victims of domestic and intimate partner violence and offer them remedies for their pain and suffering. One of the major lacunas in the law prior to the 2016 amendments was the fact that although historically and culturally many relationships in Barbados are visiting relationships, such relationships were not recognized in law.

There are various types of visiting relationships but just by way of example, this comprises two adults who live in one household but spend weekends or other stretches of time at their intimate partner’s house. In many cases, the households are extended where several relations live and in some cases, children of the visiting couple may live in the household as well.

The 2016 Amendments to CAP 130 A fixed the issue at Section 2 with visiting relationships being recognized for the purposes of the Act. It stands to reason that if the Act was expanded to include visiting relationships that the definition of ‘spouse’ would also have to be expanded.

The definition for ‘spouse’ in section 2 of the amendments to the Act is “a party to a marriage or cohabitational relationship.” This is decidedly broader than the 1993 definition which reads, “‘spouse’ includes a party to a relationship where the parties are living with each other in the same household as husband and wife.”

While the Amendment carries a specific definition for a cohabitational relationship, it also carries definitions for more than one type of cohabitational relationship by including the definition for a visiting relationship. Any interpretation that restricts the definition of spouse in a way that excludes the parties to a visiting relationship is contrary to the spirit of CAP 130 A.

As if the definitions were not clear enough about the intent of the law, the explanatory memorandum schedule that accompanies the CAP 130A brings clarity to the issue. Clause 2 specifically indicates that the definitions of critical aspects of the Act, including the definitions of ‘spouse’ have been replaced.

It is known internationally, regionally and locally that the most volatile period of a violent relationship is the point at which the victim terminates the relationship. This is when the perpetrator loses his abusive control and seeks to exert his will over the victim in ways that force compliance or punish for noncompliance.   

Any modern law to address domestic violence that does not factor in the dissolution phase of a relationship would be grossly inadequate. Thus, ex intimate partners must be fully covered and treated to under CAP 130A. As we established, these would be parties to marriage, cohabiting relationships or visiting relationships.

In order to get all actors in the policing and judicial administration of justice on the same page in relation to justice for people impacted by domestic and intimate partner violence training is going to be critical. Although there are unique features of every case of domestic violence, there are also very clear patterns and behaviours in abusive relationships.

I think that a lot of the ways that lawyers and others in the system interpret the law are based in misconceived notions about women and the causes for violence and, more broadly, patriarchy and the maintenance of it. While we harbour those types of misconceptions and political will to deal with these matters, domestic violence persists, and is deeply impacting the lives of several women and children across the landscape of Barbados.   

Marsha Hinds is the President of the National Organisation of Women