Japanese law does not explicitly provide for domestic violence in terms of prosecutorial considerations. Considering the definition of domestic violence in Section 3 above, however, there are a number of pertinent crimes stated in the Penal Code, including the following: (i) assault;[6] (ii) injury;[7] (iii) injury causing death;[8] and (iv) forcible sexual intercourse.[9] These crimes apply in the context of violence that is both domestic and not domestic.
The Domestic Violence Act 1994 prescribes the duties[20] of an enforcement officer (including police officers), which, in consequence, highlights the circumstances and extent to which they are involved in domestic violence disputes. Generally, police officers are required to:
- assist a survivor of domestic violence to file an application for an interim protection order regarding the domestic violence
- provide or arrange transportation for the survivor to an alternative residence or a safe place or shelter if such transportation is required
- provide or arrange transportation for the survivor to the nearest hospital or medical facility for treatment of injuries if such treatment is needed
- explain to the survivor their rights to protection against domestic violence
- accompany the survivor to their residence or previous residence to collect personal belongings
- remove or supervise the removal of a person excluded from a shared residence, where the court has issued an interim protection order or protection order that excludes the person from the shared residence
- inform the survivor of the status of the investigations relating to the offense involving domestic violence
- inform the survivor of the status of the application for an interim protection order or a protection order, including the service of the order, and the relevant court dates relating to the application
- arrest a perpetrator who breaches or is anticipated to breach an interim protection order or protection order
- arrest a perpetrator for committing domestic violence against an individual protected by an interim protection order or protection order
If the accused has been presented with formal charges arising from the domestic violence dispute and seeks assistance from legal counsel in respect of the same.
Yes. As with any criminal accusation, proof of an offense concerning domestic violence (as charged under the Penal Code) is necessary for the deputy public prosecutor to proceed with a formal charge against the accused, and to establish the legal elements of an offense committed by the accused.
Yes. Evidence is required for a formal charge and the establishment of a criminal offense. There are no evidential or documentary requirements that are specific to domestic violence disputes.
Yes. The standard of "beyond reasonable doubt" will apply in criminal proceedings against the accused as a threshold to establish that the accused committed a criminal offense in the domestic violence dispute.
A different standard of proof applies to civil protection orders sought by survivors pursuant to the Domestic Violence Act 1994. Please see the response to "Is the standard of proof different for ex parte orders?" in Section 5.2 below.EPO:
There are no formal standards of proof that must be met to obtain such an order, even though it is applied for ex parte and is issued administratively by the social welfare department.[21]
IPO and PO:
The standard of "balance of probabilities" will apply.[22] These orders are granted pursuant to the Domestic Violence Act 1994, which does not differentiate the applicability of the standard of proof for ex parte orders.Yes. The right of private defense is expressly provided for under the Penal Code.[23]
Yes. Furnishing false information to any public servant is a criminal offense and is punishable with imprisonment for a maximum term of six months and/or with a maximum fine of MYR 2,000 (approx. USD 495).[25]
"Domestic violence" is defined so as to include 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.[26]
Under the Penal Code, an act from which a person has expressly or implicitly consented to suffer harm or to take such risk of harm would not give rise to an offense, if:
- it is not intended to and not known by the perpetrator to be likely to cause death or grievous hurt,[27] for example, conduct that would normally constitute a criminal assault may be condoned when carried out in the context of rough contact sports such as rugby
- it is not intended to cause death and is carried out in good faith for the benefit of that person,[28] for example, the act of a surgeon in good faith during surgery that caused a patient's death may not attract criminal liability
For persons under 12 years old or of unsound mind, their guardian may consent to an act that may cause harm to them, if the act is done in good faith for the benefit of such persons. Such acts exclude those that are likely to cause death or grievous hurt, unless they are carried out for the purpose of preventing death or grievous hurt or curing grievous disease or infirmity.[29] For example, a mother who, with the intention of curing her child's disease, consents to surgery performed on her child, which causes the death of her child, will not be culpable.
In any event, consent is negated if it is made under fear of injury or under a misconception of fact and the perpetrator reasonably believes that the consent was made under such fear or misconception. Likewise, consent is negated if it is made by a person who is of unsound mind or is intoxicated.[30]
Yes.
- Self-defense: Self-defense is a complete defense provided for under the Penal Code and is referred to as "the right of private defense" in Malaysia. Among others, every person has a right of private defense to defend his/her own body, and the body of any other person, against any offense affecting the human body.[31]
- Insanity: Insanity is a complete defense and is known as "a person of unsoundness of mind" in Malaysia. This refers to an individual who is incapable of knowing the nature of the act, or that what he/she is doing is either wrong or contrary to law.[32]
Before testifying, a witness would have to swear upon oath or affirmation before giving evidence in court.[33] Further, by taking the oath, every person testifying is bound to state the truth.[34]
A person testifying in open court can be summarily punished for contempt (i.e., called upon immediately by the court without prior notice and hearing to give reasons for his/her act of contempt and, upon failure to give proper reasons, be sentenced by the court), if:[35]
- that person knowingly gives false evidence[36] on a material issue
- that person makes two or more contradictory statements of fact on a material issue before the court.
Further, whoever intentionally gives or fabricates false evidence, whether in any stage of a judicial proceeding or in any other case, is also liable for criminal punishment under the Penal Code.[37]
An instance of abstention may arise where the court considers that these potential witnesses are unable to understand the questions put to them or give rational answers to questions posed to them, by reason of very young age, extreme old age, disease — whether of body or mind, or any other cause of the same kind.[38]
As the potential impact of domestic violence may be traumatizing and cognitively damaging, special procedures are available for a child witness, which include the following:
- A child witness may testify in the company of an adult who must not prompt the child witness to answer any question, influence the answers of the child witness or disrupt the questioning of the child witness.[40]
- When testifying, these child witnesses may be prevented from seeing and being seen by the accused or a child charged with any offense by means of a screen drawn up or an alternative arrangement.[41]
- Evidence may be given by means of a live link from a location other than the courtroom in which the proceeding is being held.[42]
Yes. By way of brief definition, a child witness is any person under the age of 16 who is called to testify in any proceedings, but this does not include an accused or a child charged with any offense.[43]
If the court holds the opinion that a child witness does not understand the nature of an oath, then his/her evidence may be received, though it will not be given upon oath. However, this will only happen if the court opines that he/she is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth.[44]
Nevertheless, a child who in the opinion of the court ought not give evidence upon oath, may in any case be admitted to give evidence after being cautioned by the court to speak the truth.[45]
Presently, there are no particular offenses that provide for a different charge to be made for committing an act or acts of domestic violence against a child victim.
The penalties and sentencing for offenses related to domestic violence vary depending on the nature of the offense. Some examples of offenses under the Penal Code with their maximum punishments for first time offenders are provided below:
|
Offense |
Maximum punishment |
|
Committing assault or using criminal force on a spouse[46] |
6 months' imprisonment and/or fine of MYR 2,000 (approx. USD 495) |
|
Voluntarily causing hurt to a spouse, former spouse, a child, an incapacitated adult or other family member[47] |
2 years' imprisonment and/or fine of MYR 2,000 (approx. USD 495) |
|
Voluntarily causing grievous hurt to a spouse, former spouse, a child, an incapacitated adult or other family member[48] |
14 years' imprisonment and/or fine (no maximum limit) |
|
Causing hurt in order to have sexual intercourse with wife[49] |
5 years' imprisonment |
Yes. Offenses related to domestic violence in Malaysia attract criminal penalties.
Anyone who willfully contravenes a protection order commits an offense and upon conviction will be liable to a maximum fine of MYR 2,000 (approx. USD 495) and/or imprisonment with a maximum term of six months. If violence is used on a protected person to willfully contravene a PO, the maximum punishments double for both fine and imprisonment.[50]
For a second or subsequent violation of a PO, the offender will be liable to imprisonment with a minimum term of 72 hours but not more than two years, and to a maximum fine of MYR 5,000 (approx. USD 1,240).[51]
Domestic violence victims may be awarded compensation by the court in respect of injury or damage to property or other financial loss. In deciding the claim for compensation, the court may consider the following:
- the pain and suffering of the victim, and the nature and extent of physical injury or psychological abuse, which includes emotional injury suffered
- the cost of medical treatment for such injuries
- any loss of earnings arising therefrom
- the amount or value of the property taken or destroyed or damaged
- necessary and reasonable expenses incurred by or on behalf of the victim when the victim is compelled to separate or be separated from the defendant due to the domestic violence[52]