5. Prosecutorial considerations | Jamaica | Fighting Domestic Violence

5.1 Police procedures

5.1.1 When do the police get involved in domestic disputes or legal actions?

The timing for police involvement is not specified under legislation. However, they can apply for a protection or occupation order where a child is involved.^[37]

Police procedures relating to domestic violence in Jamaica are difficult to identify, as the role of the police has been heavily criticized. Woman Inc., a nongovernmental organization, reported that women found that the police failed to treat domestic violence as a crime and make the necessary reports.

The relationship between the police and domestic violence victims has been largely criticized. It has been commented that the police are averse to enforcing laws relating to domestic violence, in part due to the perceived lower social standing of women in society.^[38]

Statistics from the Jamaica Constabulary Force indicate that of the number of victims of gender-based violence who seek help, only 28% go to the police; 7% go to a healthcare provider; and 3% go to a church for advice and support.^[39]

The police appear to only be involved in cases where they have been called to a dispute, but they are often slow to respond. There is insufficient awareness and training for many professionals, including police officers, regarding domestic violence/violence against women in general. However, the police can make an order as per Sections 2 and 3 of the Domestic Violence Act where the conduct is threatened on a child.

5.1.2 What circumstances effect law firm involvement?

We have not found any information about law firms' involvement.

5.2 Standard of proof

5.2.1 Is proof required by any legal means?

No, proof is decided on the balance of probabilities.^[40]

5.2.2 Are there any requirements regarding evidence and documents?

Please see Section 5.2.1.

5.2.3 Is proof "beyond a reasonable doubt" required?

N/A

5.2.4 Is the standard of proof different for ex parte orders?

We have not identified any different requirements/standards.

5.3 Affirmative defenses

5.3.1 Are affirmative defenses available to the accused?

We have not identified anything on affirmative defenses in the context of domestic violence.

5.3.2 Is willful intent required?

We have not identified anything on affirmative defenses in the context of domestic violence.

5.3.3 Are false accusations punishable for the victim?

We have not identified anything on affirmative defenses in the context of domestic violence.

5.3.4 How is consent discussed in the law?

We have not identified anything on affirmative defenses in the context of domestic violence.

5.3.5 Is self-defense or insanity a defense?

Self-defense laws justify defending oneself only when they perceive a threat against their life or serious injury. Please refer to Section 6 for additional information.

5.4 Witness status

5.4.1 What is a witness's duty to testify honestly and completely?

N/A

5.4.2 Who may abstain from testifying in certain situations?

It is not possible to abstain unless an individual is not a competent witness. This is decided on the balance of probabilities.

5.4.3 What potential "excuses" can a witness raise to refuse to testify in a domestic violence action?

N/A

5.4.4 What is the impact of domestic violence on witnesses who are children?

As above, they may still be called to testify but they may rely on special measures.

5.4.5 Can children be called upon to testify?

Children can be called to testify. Section 31N(2) of the Evidence Act 2009 states the following:

A child is competent to give evidence, if and only if it appears to the court that the child is a person who – (a) is possessed of sufficient intelligence to justify the reception of the evidence; and (b) understands the duty of speaking the truth.

It is not necessary for the child to understand everything to be competent as a witness.^[41] The competence of the child is determined on the balance of probabilities, as per Section 310(b) the Evidence Act 2009. Special measures can be put in place for the child under Sections 5-7 of the Evidence (Special Measures) Act 2012. These measures may include giving evidence via a live link or via a recorded message.

The special measures can also be used where the court deems it is appropriate. There do not appear to be special provisions for domestic violence cases.

5.4.6 What is the effect of a child victim on the charges against the offender?

A larger number of people can apply for an order where a child is involved, including another member of the household, a police officer or a social worker.^[42]

5.5 Penalties and sentencing; penalty enhancements

5.5.1 What are the penalties and sentencing laws for first-time domestic violence offenses?

There appears to be no differentiation between domestic violence and other violence against women. There does not appear to be reductions for first-time offenders.

5.5.2 Are there criminal penalties?

The table below sets out the relevant sentencing.

Offense	Section of the Sexual Offenses Act	Statutory maximum	Statutory minimum	Normal range	Usual starting point
Rape	Section 3	Life	15 years	15-25 years	15 years
Grievous sexual assault	Section 4	Life	15 years	15-25 years	15 years
Marital rape	Section 5	Life	15 years	15-25 years	15 years

5.5.3 What is the result of a violation of an existing order for protection?

Please refer to Section 5.5.1.

5.5.4 What fines and other penalties are imposed besides incarceration and liberty restriction?

Please refer to Section 5.5.1.

5.6 Post-release restrictions

5.6.1 Does the law notify the victim of the offender's release from custody?

We have not identified a conclusive answer regarding whether the victim is notified of the offender's release from custody.

Fighting Domestic Violence

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