A judgment for all women

Dr Gabrielle Jamela Hosein

THE JUDGMENT of High Court judge Robin Mohammed in the application for redress between Tot Lampkin and the Attorney General is significant for activists, the police, the judiciary and state agencies.

It is especially historic for the approximately 11,000 women who face intimate partner physical and/or sexual violence each year, and those at risk of lethal violence.

Male-partner violence against women is the most common crime in the country.

Everyone is familiar with reports to police not being investigated and the challenges victims face in courts. The failures of the magistracy are so widespread that they have resulted in what is called "the vanishing complainant" or a victim who, over multiple disempowering experiences, falls out of the very system that failed to protect her in a timely and effective manner.

Ms Lampkin’s daughter, Samantha Stacey, was tragically murdered by Kahriym Garcia in 2017, leaving behind a son who also witnessed and experienced violence. The judgment documented repeated state failures to protect Stacey and Ms Lampkin’s family.

There was no further investigation or even statements taken after police themselves had to restrain Garcia, and poor police records of the incident. There was no police car to come when the family called during a later attack.

The magistrate with responsibility for the case also disbelieved Stacey’s motive for seeking a protection order, failed to grant one when Garcia was willing to give an undertaking, and dismissed the matter when Stacey did not appear, believing the perpetrator's claim that things had been resolved.

Disciplinary proceedings recommended by the Police Complaints Authority (PCA) were dismissed by the Commissioner of Police.

Addressing this, the judgment imposed a positive obligation on the state to apply the law with due diligence and take effective action to prevent deprivation of the right to life, infringement of the right to equality before the law and protection of the law, and infringement of the right of respect for family life.

What does a positive obligation mean? A negative obligation refers to a state’s responsibility to refrain from unreasonably and disproportionally interfering with individual enjoyment of rights. A positive obligation means that, by failing to protect an individual from domestic violence through taking necessary measures, the state can violate that individual’s constitutional rights.

There is therefore an obligation to take action to prevent, protect and safeguard, while ensuring due process, in cases where authorities know of real and immediate risk to an individual’s life. This requires developing and implementing effective legislation and law-enforcement measures; taking steps to protect an individual facing a clear and pressing risk to life from the criminal acts of another individual; investigating potential violations of human rights; and ensuring punishment of perpetrators and redress to victims.

Instead, the judgment found an “irrational, unreasonable, fundamentally unfair and/or arbitrary exercise of power” by the police and magistracy as the TTPS failed to use existing criminal laws to investigate and punish Garcia and prevent further violence.

The magistrate who adjudicated Stacey’s application for an order of protection failed to seek sufficient information and offer the full measure of protection available under the Domestic Violence Act, thus frustrating and unfairly depriving Stacey of her rights.

The police could have sought assistance from neighbouring police stations to respond to a lethal threat, instead of using vehicle unavailability as an excuse for inaction. They could have kept records. They could have determined whether prosecution for criminal conduct was necessary, not just recommend Stacey seek an order of protection.

The magistrate could have considered whether failure to provide maintenance for his son was a form of financial abuse by Garcia, and could have used discretionary powers to grant an interim protection order. She could have believed Stacey on the basis of the evidence of threats to her life.

There was enough knowledge of Garcia’s violence to require an obligation on the state to protect Stacey, her son and her parents’ right to family life from being traumatically and permanently fractured on December 17, 2017.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) frames male violence against women, including domestic violence, as a form of gender-based discrimination because such violence is directed against women because of their sex or affects women disproportionately because of their sex.

A state’s positive obligation is to promote and protect gender equality by comprehensively preventing, investigating and punishing such violence. Here, too, the state failed to take necessary action.

Now in our hands, this historic judgment provides powerful leverage for state accountability, victims’ rights and feminist activism.

Diary of a mothering worker

Entry 532

motheringworker@gmail.com