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Sexual & Gender Based Violence

SAMOA: New legislative provisions in relation to sexual offences; introduction of family protection legislation

During March 2013, the Family Safety Act 2013 and Crimes Act 2013 were passed.

The Crimes Act 2013 (here) commenced on 1 May 2013. The Act repeals the Crimes Ordinance 1961, and in doing so introduced several significant changes to provisions relating to sexual offences. These include an increase in the maximum penalties for most sexual offences, for example: Attempted rape (sexual violation): an increase from 10 years to 14 years (section 53); and sex with a minor under 12: increased from 7 years to life (section 58).

Part VII of the Crimes Act 2013 establishes the offence of sexual violation, which includes rape and unlawful sexual connection. Both terms are defined by section 48 – 50 of the Act. The Crimes Act introduces a more inclusive definition of these offences, including a variety of forms of unwanted sexual contact.

The Crimes Act also provides that a person may be convicted of sexual violation notwithstanding that the parties involved were married to each other at the (section 49 (4)). This removes the specific exemption of marital rape contained in the Crimes Ordinance 1961.

The focus of the Family Safety Act 2013 (here) is to provide for a greater protection of families and the handling of domestic violence and related matters. The Family Safety Act introduces a broad definition of “domestic violence” which includes physical, sexual, emotional, verbal and psychological abuse; as well as intimidation, harassment and stalking. “Domestic relationship” is also defined to encompass a range of relationships in addition to marriage, including living together in a relationship in the nature of marriage, parents of a child, or family members (related by blood, marriage or legal or customary adoption) (section 2).

Part II of the Family Safety Act introduces Protection Orders. A complainant subject to domestic violence can apply (or an application can be made on their behalf) to the Court for a protection order (section 4). The Court is able to issue a protection order if there is sufficient evidence domestic violence has been or is being committed (section 6, 7), which prohibits the Respondent from, for example, committing domestic violence, entering the complaint’s resident or workplace, or any other act which may endanger the complainant (section 9). Breach of a protection order is an offence.

Part III of the Family Safety Act imposes specific duties on Police Officers where a report of domestic violence is received: to assist (with arrangements for shelter, medical treatment or counselling) and inform the complainant of their rights (section 15); and, in specified circumstances, to prosecute (section 16). Disciplinary proceedings may be issued against a Police Officer who fails to comply with the duty to prosecute under the Act.

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