Bermuda

WHAT IS THE LEGAL STANDARD SET FOR STATE ACTORS AND LAWMAKERS IN BERMUDA IN RELATION TO GENDER-BASED VIOLENCE?

• Duty to comply with ratified international human rights conventions
• Duty to comply with the Constitution as the supreme law

WHAT LAWS ADDRESS GENDER-BASED VIOLENCE?

• DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997
• CRIMINAL CODE ACT 1907

HELP FOR SURVIVORS

• GETTING HELP UNDER THE DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997
• CRIMINAL TRIALS FOR SEXUAL OFFENCES
• GETTING HELP UNDER THE STAKING ACT 1997

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A. WHAT IS THE LEGAL STANDARD SET FOR STATE ACTORS AND LAWMAKERS IN BERMUDA IN RELATION TO GENDER-BASED VIOLENCE?

Duty to comply with ratified international human rights conventions

State actors and lawmakers Bermuda have a legal duty to comply with the terms of the international human rights conventions to which Bermuda is a State Party. The main international human rights convention in relation to gender-based violence, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979 has not yet been extended to Bermuda.

Duty to comply with the Constitution as the supreme law

The Constitution of Bermuda 1968 is the supreme law. It guards the human rights of all persons within the country and holds the State accountable for violation of human rights. Gender-based violence threatens women’s right to life and to security of the person. The obligation mandated by the Constitution to protect the human rights of persons within the country extends to a positive obligation on the State to protect women and girls from domestic violence and sexual violence.

B. WHAT LAWS ADDRESS GENDER-BASED VIOLENCE?

The laws which address gender-based violence in Bermuda are:

• Domestic Violence (Protection Orders) Act 1997

• Criminal Code Act 1907 (1989 Rev) , with relevant amendments by the Criminal Code (Sexual Offences) Amendment Act 1993 and the Criminal Code Amendment Act 2007 ( child pornography)

• The Stalking Act 1997 and the Stalking Amendment Act 1998

• the common law

The legal framework which protects women and girls from gender-based violence includes the Constitution, Acts of Parliament and rules from the common law. Some acts of violence which cause physical injury amount to a criminal offence (for example assault, wounding) and may be prosecuted under the Criminal Code Act and under the common law. The domestic violence legislation provides protection from physical and sexual violence, but it is not meant to exclude the criminal laws or replace criminal proceedings. Rather, it is to expand the range of options which are available to victims of domestic violence.

Bermuda does not have sexual harassment legislation. However, the common law can be used to provide remedies to persons who are victims of sexual harassment in the workplace by reliance on the law of torts (duty of care) and the law of contract (breach of implied trust/constructive dismissal).

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I. DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

The law governing domestic violence in Bermuda is the Domestic Violence (Protection Orders) Act 1997. This Act creates a wide range of speedy and effective remedies which are aimed at reducing the incidences of domestic violence. A magistrate can grant a protection order that prohibits abuse and molestation, excludes the abusive person from the home or workplace etc.

II. CRIMINAL CODE ACT 1907

The law governing sexual offences in Bermuda is the Criminal Code Act 1907, which was recently amended in 2010. It now has new provisions which protect children from sexual exploitation, child pornography and child abusive material. Not all offences under this Act involve what would be considered gender-based violence, for example prostitution. Some acts amount to offences even if they are consensual (example buggery).

Offences recognized under the Criminal Code Act include:

• sexual assault

• serious sexual assault

• aggravated sexual assault

• Gross indecency between male persons

• buggery

• Sex trafficking/procuration

• Sexual offences in relation to children

• Sexual offences in relation to persons with mental impairment

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OFFENCES

SEXUAL ASSAULT

In Bermuda, where a person has sexual intercourse with another person without that person’s consent, the offence is no longer called rape. Rather, it is recognized as sexual assault. The Criminal Code Act recognizes three different forms of sexual assault. These are all separate offences, namely: (i) sexual assault; (ii) serious sexual assault; and (iii) aggravated sexual assault.

As explained by a judge of the Supreme Court:

the Criminal Code (Sexual Offences) Amendment Act, 1993 did away with the old offence of rape, and replaced it with a broader offence known as ‘sexual assault’, which carries a maximum penalty of 20 years imprisonment. If it is accompanied by aggravating circumstances, such as the use of a weapon or bodily harm to the victim, it is called ‘serious sexual assault’, for which the maximum is 30 years imprisonment.[1]

Penalty for sexual assault

Anyone who commits sexual assault may be imprisoned for five years on summary conviction. If convicted on indictment, the person may be imprisoned for twenty years.

Sexual assault by a person who has a sexual disease or sexually transmitted infection

The broad offence of sexual assault not only covers situations where a person is forced to have sexual intercourse. It also extends to where a person knowing that he has a sexual disease has consensual sexual contact with another person in a manner which is capable of transferring bodily fluids to that person, without informing the person that he has a sexual disease. Anyone who does this, commits the offence of sexual assault and may be imprisoned for up to twenty years. The sexual diseases to which the law refers are: (i) Acquired Immune Deficiency Syndrome (AIDS); hepatitis B; and (iii) Human Immunodeficiency Virus (HIV) infection.

Serious sexual assault

Serious sexual assault is where a person in committing a sexual assault also does any of the following:

• carries, uses or threatens to use , a weapon (or an imitation of a weapon);
• causes bodily harm to the person;
• threatens to cause bodily harm to another person
• commits sexual assault with another person

The penalty for committing a serious sexual assault is imprisonment for thirty years.

Serious sexual assault by a person who has a sexual disease or sexually transmitted infection

If a person knows that he has a sexual disease and forces someone to have sexual contact with him, that person commits the offence of “serious sexual assault”. The penalty for doing this is imprisonment for thirty years.

Aggravated sexual assault

If a person while committing a sexual assault also wounds, maims or disfigures the other person or endangers the life of the person, the person commits the offence of “aggravated sexual assault”. This offence carries a maximum penalty of imprisonment for life.

Sexual assault within marriage

In Bermuda, there is no immunity for a husband or wife who commits sexual assault, serious sexual assault or grievous sexual assault against one’s spouse. The law states clearly that a husband or wife who commits any of these offences is to be prosecuted whether or not the offence happened while they were living together.

DEFENCES: Sexual assault, serious sexual assault, aggravated sexual assault

For the offences of sexual assault, serious sexual assault and aggravated sexual assault, a person who is accused of any of these offences may have a defence if all of the following conditions are satisfied.

• Firstly, the accused person must prove that the victim consented to the activity and that he had reasonable cause to believe and did believe that the victim was sixteen years of age or older.
• Secondly, the accused person must not have been twenty one years of age or older at the time the activities took place.
• Thirdly, the accused person must not have previously availed himself of this defence to charges concerned with sexual exploitation or sexual assault.

If however the victim was under fourteen years of age at the time when the offence was committed, the accused person has no defence to the charge.

Conspiring to induce permission to have sexual intercourse

It is a criminal offence for a person to conspire with another person to induce a woman or a girl by fraudulent means to have unlawful sexual intercourse with a man. This offence carries a penalty of imprisonment for twelve months on summary conviction. If convicted on indictment the penalty is imprisonment for two years.

Procuring defilement of a girl, woman

If a person procures or attempt to procure the unlawful carnal connection of a woman or girl by threats, fraud or administering drugs to her, that person may be imprisoned for three years.

Gross indecency between male persons

The penalty for acts of gross indecency between male persons is imprisonment for twelve months on summary conviction. If convicted on indictment, the penalty is imprisonment for two years. It is also a criminal offence for a male person to procure or attempt to procure another male person to commit an act of gross indecency. Any male person who does this may be imprisoned for two years.

No offence is committed if the acts of gross indecency are done in private by consenting adults.

Buggery

The Criminal Code Act does not criminalize consensual anal sex between adults where the act takes place in private. It is only where persons have anal sex in public that it becomes an offence. The penalty for committing buggery in a public place is imprisonment for ten years. An attempt to commit buggery in a public place carries a penalty of imprisonment for five years.

Procuration

A person who procures or attempts to procure a girl under eighteen years of age to have unlawful sexual connection commits a criminal offence. It is also criminal offence for any person to procure or attempt to procure a woman or a girl to become a prostitute or to be an inmate in a brothel. The penalty for each of these offences is imprisonment for twelve months on summary conviction. If convicted on indictment, a person may be imprisoned for two years.

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Sexual offences in relation to children

Sexual intercourse with girls under fourteen years of age

Having sexual intercourse with a child who is under sixteen years of age is commonly known as statutory rape. If a person has unlawful sexual intercourse with a girl who is under fourteen years of age, that person commits a criminal offence and may be imprisoned for twenty-five years. It is also a criminal offence for a person to attempt to have unlawful sexual intercourse with a girl who is under fourteen years of age. The penalty for this offence is imprisonment for fifteen years.

Sexual intercourse with girls between fourteen and sixteen years of age

If a person has sexual intercourse with a girl who is not younger than fourteen years of age but is not yet sixteen years old, he may be imprisoned for five years on summary conviction. If that person is convicted on indictment, he may be imprisoned for twenty years. Attempting to have unlawful sexual intercourse with a girl who is between the ages of fourteen and sixteen years also carries a penalty of imprisonment for twenty years.

Defence

Where a person under eighteen years of age has or attempts to have unlawful sexual intercourse with a girl who is between the ages of fourteen and sixteen years, that person has a defence if he proves that he had reasonable cause to believe and did believe that the girl was sixteen years of age.

Limitation Period

There is a limitation period for the prosecution of the offences of (i) having unlawful sexual intercourse with a girl who is between the ages of fourteen and eighteen years and (ii) attempting to have unlawful sexual intercourse with a girl who is between the ages of fourteen and eighteen years. Prosecution for any of these offences must commence within twelve months after the offence was committed.

Sexual exploitation of young persons

Sexual exploitation of a child under fourteen years of age

Touching the body of a child under fourteen years old (with a part of one’s body or with an object) for a sexual purpose is a criminal offence. Inviting such child to touch the body of another person (with her body or with an object) for a sexual purpose is also a criminal offence. The penalty for each of these offences is imprisonment for five years on summary conviction. If convicted on indictment, the penalty is imprisonment for twenty years.

Defence

If the child consents to the activities, this is not a defence. If however, the person accused of the offence is under sixteen years old, that person may have a defence if he is less than three years older than the victim and is not in a position of trust or authority or in a relationship of dependency towards the child.

Further, if the person who is accused of sexual exploitation is also under fourteen years of age, he will not to be tried for the offence unless he is in a position of authority or trust or is in a relationship of dependency towards the child.

Sexual exploitation of child under sixteen years of age by person in position of trust, authority etc

It is a criminal offence for a person who is in a position of trust or authority towards a child under sixteen years old touches that child’s body for a sexual purpose (with his body or with an object). It is also a criminal offence if that person invites a child under sixteen years of age to touch another person’s body for a sexual purpose. The penalty for each of these offences is imprisonment for five years on summary conviction. If convicted on indictment, the penalty is imprisonment for twenty-five years.

Defence

If the person accused of sexually exploiting the child is under twenty-one years old and did in fact believe that the child was consenting to the act, he has a defence. If however the accused person was previously charged with this offence and he used this defence, he is not allowed to use it again.

Acts of indecency involving children

Persons should not commit any act of indecency in the presence of children. It is a criminal offence for a person to willfully and without reasonable excuse commit an indecent act in the presence of a child, with the intention that the indecent act is to be seen by the child. The penalty for this offence is imprisonment for five years on summary conviction. If convicted on indictment the maximum penalty is imprisonment for ten years.

Inviting or attempting to induce a child to commit an indecent act is a criminal offence. The penalty for this offence is imprisonment for five years on summary conviction. If convicted on indictment, the person may be imprisoned for twenty years.

The consent of the Director of Public Prosecution must be obtained for prosecution to commence against persons who are accused of these offences.

Acts intruding upon the privacy of women or girls

Any act which under the provisions of the legislation would be considered to be an intrusion upon the privacy of a woman or a girl in such a way as is likely to and actually does alarm, offend or insult her is criminalized. The following actions when done willfully and without lawful excuse are deemed to be an intrusion upon a woman’s or girl’s privacy:

• accosting or following her
• saying a word or making a sound or gesture intending for her to hear it
• showing an object or committing an indecent act intending for her to see it.

The penalty for this offence on summary conviction is imprisonment for five years. If convicted on indictment, there is a maximum penalty of imprisonment for ten years. The consent of the Director of Public Prosecution must be obtained for a person to be prosecuted for this offence.

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CHILD PORNOGRAPHY and OTHER OFFENSIVE MATERIALS

The Criminal Code Amendment Act 2007 introduced new provisions which deal with child pornography, child abusive material and offensive material. Prosecution for these offences requires the consent of the Director of Public Prosecutions. Where the material in question is justified for the public good, a person will not be convicted of an offence. The police as well as customs officers has the power to seize, remove or detain anything which they have reason to suspect to be child abusive material or child pornography. Further, the police may be issued a warrant by a magistrate or a justice to search premises where it is suspected that a person has child abusive material or child pornography.

Showing child pornography, child abusive material to a child under sixteen

It is a criminal offence to show child pornography, child abusive material or offensive material to children who are under sixteen years of age. Child abusive material includes material which depicts a child being tortured or being physically abused in a way that would be regarded as being an abuse of the child. Offensive materials are those which describe or deal with matters of sex, drug misuse or violence in a manner which is likely to offend an adult.

Anyone who knowingly shows to a child under sixteen years old, child pornography, child abusive material or offensive material commits an offence. The penalty for this offence is imprisonment for ten years on conviction on indictment. On summary conviction the penalty is imprisonment for five years.

Using a child for child pornography, child abusive material

If a person who has the custody or care of a child who is under sixteen years old allows that child to be used for the production of child pornography or child abusive material, that person commits an offence. He may be imprisoned for ten years if convicted on indictment. On summary conviction, the penalty is imprisonment for five years.

Luring

It is a criminal offence for a person to communicate with a child for the purposes of committing or attempting to commit certain sexual offences (such as buggery, unlawful sexual intercourse, sexual exploitation etc.) against the child. This applies to any communications medium used (e-mail, letters, phone calls etc.)The penalty for luring a child for such purposes is imprisonment for ten years if convicted on indictment. On summary conviction the penalty is imprisonment for five years.

A person who is charged with this offence may have a defence if the person asserts that at the time he lured the child he believed that the child was sixteen years of age or older and he further establishes that he took all reasonable steps to ascertain the age of the child.

Making, distributing child abusive material or pornography

It is a criminal offence for a person to knowingly make, print or distribute child abusive material or child pornography. It is also a criminal offence for a person to knowingly distribute, sell or make available child abusive material or child pornography. The penalty for each of these offences is imprisonment for ten years if convicted on indictment. On summary conviction, a person may be imprisoned for five years.

Possessing child abusive material or child pornography

If a person knowingly possesses child abusive material or child pornography for showing to or viewing by other persons, he may be imprisoned for five years if convicted on indictment. On summary conviction, the penalty is imprisonment for three years.

Accessing child abusive material

Knowingly accessing child abusive material or child pornography is also a criminal offence. If you cause yourself to view such material or cause it to be transmitted to you, you are deemed to have knowingly accessed it. The penalty for knowingly accessing child abusive material or child pornography is imprisonment for five years if conviction on indictment. On summary conviction, the penalty is imprisonment for three years.

Sexual offences in relation to persons suffering from mental disorders

Persons who suffer from mental disorders are in special need of protection. The Criminal Code Act describes these persons as “defectives”. It is a criminal offence for anyone to have or attempt to have e unlawful sexual intercourse with a woman who is a defective. The penalty for each of these offences is imprisonment for twenty-five years if convicted on indictment. On summary conviction the penalty is imprisonment for five years.

If a person who is charged with any of these offences proves that he did not know and had no reason to suspect that the woman was a defective, he has a defence to the charge and may not be convicted.

C. HELP FOR SURVIVORS

I. GETTING HELP UNDER THE DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

Where do I apply for an order?

You should make an application for a protection order at the Magistrate’s Court. You do not need an attorney to make the application for you.

Will the person who is abusing me be informed that I have made the application?

Yes. The abusive person against whom you are seeking the order must be formally made aware that you are seeking an order from the court. The abusive person must be served with a copy of the application for the order and also notice of the date at which, and the time and place at which the application is to be heard. This is called notice. In certain circumstances the court may grant a temporary or an interim order for your protection even though the abusive person has not been given notice.

How does the law define domestic violence?

The law recognizes domestic violence as violence which is perpetrated by one person against the other where both persons are or were in a domestic relationship. Physical abuse, sexual abuse, psychological abuse (which includes harassment) and also threats of abuse all amount to domestic violence.

What types of orders and protection can I get?

A protection order is available from the court. It prohibits the person who is abusing you from using violence against you or harassing you. It may also prohibit the abusive person from being at your workplace or school. Even if you do not own the place where both you and the abusive person live, the protection order can allow you to remain there and direct that the abusive person leave. If the abusive person was paying rent, mortgage or utilities, the protection order may instruct the abusive person to continue paying those expenses although that person is no longer living there.

What must I prove to get the order?

Firstly, you must first establish that you qualify to seek relief under the Act. In order to qualify you must fall into at least one of the following categories:

• you are or were married to the abusive person

• you live together with the abusive person as husband and wife although not married to each other

• you are a member of the abusive person’s household

• the court determines that you have a “close personal relationship” with the abusive person

• you have a child in common with the abusive person

Secondly, you must prove that the abusive person is engaging in, has engaged or threatens to engage in conduct which amounts to domestic violence towards you.

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What factors will the court take into account in deciding whether to grant the order?

The court may make a protection order once it is satisfied that the abusive person used is engaging or has engaged in conduct which amounts to domestic violence towards you and the order is necessary for your protection. There are certain matters which the court must consider before making a protection order, giving the greatest weight to the need to ensure that a person is protected from domestic violence and the welfare of a child who is a protected person. All matters which the court should consider are:

• the need to ensure that persons are protected from domestic violence;

• the welfare of any child who is a protected person;

• the accommodation needs of a protected person;

• any hardship that will be caused to the abusive person or to any other person as a result of the making of the order; and

• any other matter that in the circumstances of the case the court considers relevant.

How long will the protection order last?

The protection order may last for twelve months.

Does the protection order affect anyone’s right to ownership of property?

No. These orders do not affect a person’s right to ownership of property.

Can I get any monetary order for my support of my children’s support or compensation for injuries?

The court may direct the abusive person to compensate you for expenses you incurred for e.g. medical expenses, as a result of the abusive conduct towards you.

What is a temporary protection order?

If you make an application to the court for a protection order, the abusive person is to be given notice of your application. However, in certain circumstances the court may make an order for your protection without notice to the abusive person. This is a temporary order and it may last for only twenty-eight days. For the court to grant a temporary protection order, it must be satisfied that if the temporary order is not made, there may be undue hardship or risk of harm to you.

What happens if the protection order is breached?

It is a criminal offence for a person to breach a protection order. Anyone who breaches a protection order may be imprisoned for twelve months or $5,000.00 or be subject to both such fine and imprisonment. If a person breaches a protection order, the person who had applied for the protection order may institute prosecution against the abusive person for breaching the order.

What powers do the police have under the Act to protect me from domestic violence?

Power of arrest for suspected breach of protection order

Where a power of arrest is attached to a protection order, a police officer may arrest without warrant anyone whom he has reasonable cause to suspect is in breach of the protection order. The arrested person must be brought before the court within forty-eight hours after his arrest or as soon as reasonably practicable thereafter and unless the court gives permission, he should not be released within this period.

Power to enter premises

A police officer is authorized to enter any premises without a warrant for the purpose of giving assistance to a person on the premises if he has reasonable grounds to suspect that a protection order is being contravened.

How will my privacy be protected during the court proceedings?

There will be restrictions on the persons who may be present in the court during the proceedings. There are also restrictions on publication of reports of these proceedings. The identity of the persons involved and any other information which may lead the public to readily ascertain your identity, the abusive person’s identity or the identity of any other person involved should not be published in a newspaper or be broadcasted to the public. The penalty for contravening this provision is imprisonment for twelve months or a fine of $5,000.00 or both such fine and imprisonment.

How does the law ensure that the rights of the abusive persons are protected?

The abusive person must be given notice of the application for an order and has a right to be heard by the court to answer the allegations made. Where the court makes an order against the abusive person, the abusive person has the right to apply for it to be discharged or its conditions varied. The abusive person as well as the person who applied for the order also has the right to appeal the court’s concerning the making of an order or the refusal to make an order.

II. CRIMINAL TRIALS FOR SEXUAL OFFENCES

Is there any provision to protect the privacy of a survivor of sexual violence?

There should be no written publication or broadcast available to the public which may lead members of the public to identify the victim and the person accused. This restriction may be removed in only certain circumstances. A person who contravenes this provision commits an offence and may be fined $5,000.00.

The judge may order that the identity of the witness or any information that could disclose the identity of a witness should not be published or be broadcasted. A person who without lawful excuse contravenes the judge’s order commits an offence and may be fined $5,000.00.

Is my past sexual history relevant?

It is in very limited circumstances that the court may allow evidence of your sexual activity and reputation. It is only the sexual activity which forms the subject-matter of the charge against the accused person that the court should hear evidence on and allow cross-examination of. The permission of the court is required for an accused person to bring other evidence concerning the sexual activities of the victim. A special application must be made to the judge for such evidence to be allowed. For the judge to allow such evidence, the evidence or question must:

• relate to specific instances of sexual activity; and
• be relevant to an issue in the case; and
• have significant probative value or relevance that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

In deciding whether to allow the evidence, the judge must have regard to: the interests of justice; the risk of prejudice in the jury; the potential prejudice to the your personal dignity and right of privacy etc.

Evidence of your sexual reputation is not admissible for challenging or supporting your credibility.

What is ‘recent complaint’ evidence and how will the court view it?

Where a woman says that she is the victim of a sexual offence, there is a rule at common law that allows her to give evidence that she actually told someone about what happened as soon as she was reasonably afforded the opportunity to do so. The person whom she told about the offence may also be allowed to give evidence. The judge can allow this to confirm the woman’s evidence of what happened and where consent was an issue in the case, to rebut or disprove consent.[2] These rules are known as the common law rules regarding recent complaint.

These common law rules are no longer applicable in Bermuda. The Criminal Code (Sexual Offences) Amendment Act 1993 abolished these rules.

Must there be independent evidence to confirm my account of the violation?

Corroboration

No.

You are concerned with what the law describes as corroboration. Corroboration is independent evidence which implicates a person accused of a crime by connecting him with it. In sexual offences cases, judges were required to warn the jury that it was dangerous to convict a person upon the uncorroborated evidence of a woman who complained that she was the victim of a sexual offence. [3] The reason for this warning was the mistaken belief or widely held perception that women often lie about being raped. Judges are no longer mandated to give a corroboration warning in sexual offences cases. In R v Gilbert (2002) 61 WIR 174, the Privy Council decided that the question whether to give a corroboration warning in sexual offence cases is a matter for the discretion of the trial judge.

The corroboration warning is no longer required in Bermuda. The Criminal Code (Sexual Offences) Amendment Act 1993 abolished these rules and expressly states that corroboration is not required for a conviction. Further, a judge should not tell the jury that it is unsafe to find the accused guilty in the absence of corroboration.

III. GETTING HELP UNDER THE STALKING ACT 1997

It is not uncommon for persons to be stalked by persons with whom they have or have had a sexual or an intimate relationship. Often times, such acts are motivated by jealousy, unwillingness to accept that the relationship has ended, desire to control or desire to cause fear etc.

How does the law define stalking?

Stalking is defined as where a person without lawful authority engages in conduct with the intention to cause harm to another person or with the intention to put another person in fear for his safety or the safety of a member of his family or someone with whom he has a domestic connection. The Act uses the term “connected person” which means a person who has a family or domestic connection with a victim of stalking or with a complainant.

For there to be an offence of stalking, the accused person must have engaged in the conduct knowing that it is likely to cause harm or induce such fear in the person. The conduct of the accused person must have also resulted in harm or induce such fear in the person.

Certain types of conduct if done over time will amount to stalking. These are:

• following a person

• telephoning or sending electronic messages to a person or otherwise contacting a person

• interfering with property which is in a person’s possession

• entering and loitering in a person’s home or workplace or any other place frequented by the person

• loitering outside a person’s home or workplace or outside any other place frequented by the person

• keeping a person under surveillance

What type of order and protection can I get?

If you are being stalked or have been stalked you can take measures to protect yourself. You should apply for a protection order from the court. This protection order will prohibit the person from engaging in conduct which amounts to stalking. It does not matter if the accused person has already been convicted of the offence or if proceedings against the person have not yet ended. The Act states clearly that a person can apply for a protection order against another person in cases where:

• the person has been convicted of stalking;

• proceedings have begun against the accused person but have not been concluded; or

• the court is satisfied that court proceedings against the accused person will take place.

How long will the protection order lasts?

A protection order may last for as long as twelve months. Where court proceedings have begun against the accused person but has not yet ended, the protection order may last for up to sixty days. Where the protection order is a temporary one its duration should not exceed twenty-eight days.

What is the penalty for stalking?

A person who stalks another person may be imprisoned for twelve months or fined $2500.00 or be subject to both such fine and imprisonment.

Having an offensive weapon while stalking

If a person has an offensive weapon in his possession while he is stalking another person, the penalty is imprisonment for three years or a fine of $5,000.00 or both such fine and imprisonment.

Being in breach of a court order while stalking

If while stalking, the accused person was also in breach of an order which was made against him, such as an order under the domestic violence legislation the penalty is imprisonment for three years or a fine of $5,000.00 or both such fine and imprisonment.

What are the powers of the police under the Act?

Power of arrest

A power of arrest may be attached to the protection order. Where this is done, the police may arrest the person against whom the order was made without a warrant if the police have reasonable cause to suspect that he is in breach of the order.

Power of entry upon premises

A police officer may also enter any premises without a warrant for the purpose of helping someone on that premises, where he suspects that a protection order is being breached or where he suspects that a person is committing the offence of stalking.

[1] Per Kawaley J in Middleton v Director of Public Prosecutions, Citation # BM 2007 SC 37 (Judgement delivered May 4, 2007)

[2] P. Murphy, Murphy on Evidence (11^th edn, Oxford University Press 2009) 580

[3] P. Murphy, Murphy on Evidence (11^th edn, Oxford University Press 2009) 635