A police officer has a duty to be involved from every complaint or report alleging domestic violence whether that report or complaint is made by the victim or not. They must fill out a domestic violence report that forms the basis for which the magistrate may issue a warrant for arrest or issue a protection order (Sections 21 and 22 of the Domestic Violence Act).
Despite the requirement that police officers become involved in every report, victims of sexual-based and gender-based violence who engage with the criminal justice system often complain that they are ill-treated by police officers and that medical examiners often treat them with distrust.[28]
Under Section 22 of the Domestic Violence Act, a magistrate may issue a warrant authorizing a police officer to enter the relevant premises and take the necessary action to prevent the commission or repetition of the offense in question, provided that the magistrate is satisfied that there are reasonable grounds that a person has suffered or is in imminent danger of suffering physical violence.
Under Section 23 of the Domestic Violence Act, a police officer has certain powers of entry and arrest that are exercisable without a warrant, in accordance with the Criminal Law Act, where the police officer has reasonable cause to believe that a person is engaging in or attempting to engage in conduct that amounts to physical violence and the failure to act immediately may result in serious physical injury or death.As potential domestic violence offenders are arrested under the offenses listed in the First Schedule (Section 25) of the Domestic Violence Act, the burden and standard of proof rests upon the prosecution and it is for the prosecution to prove to the jury that, having considered all the evidence relevant to the charge, it is sure that the accused is guilty.[29]
Notably, there is no specific criminal penalty for domestic violence. Those suspected of domestic violence are arrested under another relevant offense, e.g., assault. If they are criminally charged, it will be under that criminal penalty.
However, for a protection order to be issued against a respondent under Section 4 of the Domestic Violence Act, the court has to determine, on the balance of probabilities, that domestic violence has or may occur (Section 5 of the Domestic Violence Act). However, there are considerations such as whether the incident was an isolated one, where there is a desire to preserve the family unit and where the conduct is not considered sufficiently grave. Then, with the consent of the applicant or complainant, the court may withhold the protection order or penalty and require the respondent or defendant to enter a bond of good behavior for a maximum of six months (Section 25 of the Domestic Violence Act).No defenses are mentioned in the Domestic Violence Act.
There is a defense for sexual offenses against children; however, they require the offender to honestly believe that the victim was 18 years old or more.[30] This is unlikely to apply in a domestic violence situation.Consent is not discussed in the Domestic Violence Act. Nevertheless, under the Sexual Offenses Act, the jury has to consider whether a person believed that another person consented to sexual intercourse or to any other sexual act. The judge will direct the jury that the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, when considering whether that person believed it.[33]
The law does not recognize consent as follows:
- where it is extorted by threat or fear of bodily harm to the complainant or to another
- where it is obtained by impersonating someone else
- where it is obtained by false or fraudulent representations regarding the nature of the intercourse
- where it is obtained by unlawfully detaining the complainant[34]
Common law governs self-defense in Trinidad and Tobago.
Palmer v. R [1971] AC 814 is regarded as the classic pronouncement upon the common law relating to self-defense. Lord Morris approved as correct the self-defense direction given by the trial judge, who stated the following:
A man who is attacked in circumstances where he reasonably believes his life to be in danger or that he is in danger of serious bodily harm, may use such force as on reasonable ground he believes is necessary to prevent and resist the attack; and if in using such force he kills his assailant he is not guilty of any crime even if the killing was intentional.[36]
It must be clearly conveyed to the jury that a man (or woman) can act in self-defense even if he has the intention to kill.
Further, under Section 4(A)(1) of the Offenses Against the Person Act, the following applies:
Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.
Therefore, this provides the defense of diminished responsibility.