6. Special issues | Jamaica | Fighting Domestic Violence

6.1 Battered woman syndrome

6.1.1 Can lawyers present evidence of battered woman syndrome or other domestic abuse as an affirmative defense to crimes that the battered woman has committed? (Note: Battered Woman Syndrome is accepted by courts in certain jurisdictions to show that battered women can use force to defend themselves and sometimes kill their abusers due to abusive and life-threatening situations.)

There is no specific legislative basis for a history of abuse to be considered as a defense or mitigating factor. However, in relation to murder, a person will not be punished if they kill another person by misfortune, in their own defense or in any other manner without felony.^[43] We have not identified any case law where domestic abuse has been raised as a defense for crimes committed by a battered woman.

The Supreme Court of Judicature of Jamaica's Criminal Bench Book^[44] (which is intended to aid judges in directing juries in criminal cases) sets out the fundamental principles to establish self-defense (this is based on English case law):

A person who is attacked (or believes they are about to be attacked) is entitled to defend themselves. In defending themselves, they can do what is reasonably necessary.
The defensive action must be proportionate to the attack.

However, in the middle of the action, a person may not be able to determine exactly what is proportionate, and they may take whatever action they honestly and instinctively thought was necessary.

Therefore, if a battered women was attacked (or thought they were about to be attacked) at the time the crime was committed, this may be presented as a defense. However, based on the principles of self-defense, it may be difficult to argue that past domestic violence leading up to the crime should be considered a defense.

6.2 Domestic violence in the workplace

6.2.1 Can courts issue orders to protect employees suffering from domestic violence?

No. The courts only issue protection orders and occupation orders (see Section 2). While a protection order prevents an alleged abuser from entering, watching or besetting the victim's place of work, this does not impose obligations or responsibilities on employers.

6.2.2 Can departure be deemed "for good cause" if related to domestic violence?

The relevant employment termination legislation — the Employment (Termination and Redundancy Payments) Act — does not set out valid/fair reasons to terminate employment. The act only states the minimum notice periods or payments in lieu.

6.2.3 Can family members of domestic violence victims take reasonable leave to help the victim seek treatment or obtain help and services?

No. There is no statutory leave for family members to assist victims of domestic violence. Employees are entitled to a certain number of days of paid holiday leave and paid sick leave.

If an employee takes more than three days of paid sick leave, they must provide a certificate from a registered medical practitioner stating that they are ill and specifying the period during which they will be unable to perform their duties.^[45] This indicates that sick leave requires the employees themselves to be ill and it would not be the appropriate route of leave to help a victim.

Therefore, an employer would need to use their paid holiday leave or take unpaid leave to help family members.

6.3 Immigration

6.3.1 Does the law include provisions that are intended to prevent abusers who are citizens or permanent residents from using immigration laws to perpetrate domestic violence against their spouse?

N/A

6.3.2 If battered immigrants cooperate with law enforcement in domestic violence, can they obtain immigration remedies?

N/A

6.3.3 Does domestic violence law discuss asylum accessibility?

Asylum accessibility is not mentioned in domestic violence law.

6.4 Armed forces

6.4.1 Can a victim seek a military protective order if the abuser is in active military?

N/A

6.5 Child custody and child/spousal support

6.5.1 Do judges follow special rules to determine custody or visitation of children in domestic violence cases?

Custody is determined according to the Children (Guardian and Custody) Act 1957. The court can make an order regarding custody in line with Section 7 of the act.

General custody and visitation rules are set out in the Children (Guardian and Custody) Act 1957. Under the act, the mother of a child is able to apply to the court regarding any matter affecting the child's custody arrangements.^[46] The court has the power to make any order concerning the custody of the child and the rights of access of each parent as the court thinks fit.

The act emphasizes that, in making its judgment, the court "shall regard the welfare of the child as the first and paramount consideration,"^[47] while also being able to consider the conduct and wishes of both parents.^[48] However, the court must consider the claims of both parents through the perspective of the child's welfare.^[49]

In every case relating to child custody, the court is entitled to make any orders regarding costs as the court thinks fit.

In the context of domestic violence, where the court makes an occupation order under the Domestic Violence (Amendment) Act 2004, the court must only make the order if it is satisfied that in doing so it is in the best interests of the child.^[50]

6.5.2 Can the judge consider the testimonies of the other spouse and the children when determining custody?

As mentioned above, the wishes of both parents may be considered when determining custody. However, such considerations will be supplementary to the paramount consideration of the welfare of the child.

6.6 Housing rights of domestic violence victims

6.6.1 Does the law include any barriers to prevent landlords from forcing a tenant to move out because they are victims of domestic violence?

N/A

6.6.2 Does the law allow a tenant to terminate his/her lease early due to domestic violence?

N/A

6.6.3 Can an order exclude the abuser from the residence?

Yes. Under the Domestic Violence Act, a victim of residential domestic violence can apply for an occupation order, which, if approved, grants them the right to live in the household residence to the exclusion of the abuser for the period and under the terms the court thinks fit.^[51]Upon the application of either party, the court may vary the period and terms of the occupation order.^[52]

6.6.4 Can abusers be forbidden by court orders to alienate or mortgage the property in his/her name if it is the family domicile?

The Domestic Violence (Amendment) Act 2004 provides that any rights created under an occupation order will be subject to the rights of any other person entitled to the benefit of any mortgage, security, charge or encumbrance affecting the property, provided that the mortgage, security, charge or encumbrance was registered before making the order.^[53] However, no money payable under such mortgage, security charge or encumbrance will be called up or become due because of making such order.^[54] The Family Property (Rights of Spouses) Act (2004) does not refer to the family domicile in this context.

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