The 2019 Act made the 2015 Act’s (available here) health benefits available to a broader group of women – including those who had worked in 'the institutions covered by the Magdalen Restorative Justice ex-gratia Scheme' while residing in certain adjoining institutions (Section 2).
Women and Justice: Keywords
Legislation
Redress for Women Resident in Certain Institutions (Amendment) Act 2019 (2019)
Redress for Women Resident in Certain Institutions Act 2015 (2015)
The 2015 Act provides for free health services for women who worked in Magdalen laundries (institutions ostensibly intended to house and employ ‘fallen’ women). Its Schedule provides for the 'Relevant Institutions' for the purposes of identifying women entitled to the provision of services. The 2015 Act was updated in 2019 (available here) to expand the group of women eligible for benefits under the Act.
The Criminal Law (Sexual Offences) Act 2017 gave effect to European Council Directive No. 2011/93/EU of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography. It also amended certain other legislation, including the Criminal Law (Sexual Offences) Act 1993 (available here), the Criminal Law (Incest Proceedings) Act 1995, the Child Trafficking and Pornography Act 1998 (available here), the Criminal Law (Human Trafficking) Act 2008 (available here), and the Criminal Law (Sexual Offences) Act 2006. The Act provides for offences relating to sexual acts with protected persons and relating to payment for sexual activity with sex workers, offensive conduct of a sexual nature and harassment of victims of sexual offences. The Act defines ‘sexual exploitation’ in relation to a child and specifies the elements that would constitute a sexual offence against a child, including performing sexual acts in front of a child and prostitution of a child. Generally, Sections 4, 5, 6, 7, and 8 broaden the scope of criminal acts in relation to children, such as the prohibition of causing a child to watch sexual activity (Section 6), meeting a child for the purposes of sexual exploitation (Section 7), and the use of information and communication technology to facilitate the sexual exploitation of a child (Section 8). The Act also criminalizes the purchase of sexual services and prohibits sexual activity with a protected person, as defined by the Act. The Act creates a distinction related to the commission of a sexual act with a child under 17 years of age and with a child under 15 years of age, with a conviction on indictment for the former offence resulting in a term of imprisonment of up to 7 years (unless the person is in authority, in which case they may be sentenced for up to 15 years) (Section 17), and with a conviction on indictment for the latter offence resulting in a term of imprisonment of life (Section 16). Importantly, Section 48 of the Act reforms the law in relation to consent to sexual acts. In particular, it states that a person does not consent to a sexual act if, inter alia, they permits the act to take place or submits to it because of the application, threat or fear of use of force against them, if they are asleep, if they are incapable of consenting because of intoxication, or if they are mistaken as to the nature and purpose of the act or the identity of the person involved. The Act also clarifies that consent can be withdrawn at any time and that lack of physical resistance does not, of itself, constitute consent (Section 48). Finally, Section 46 allows a court to issue a “Harassment order” against a person when imposing a sentence for a sexual offence or at any time before the convicted person is released from prison.
The Combating of Immoral Practices Act aims to prevent and reduce prostitution and the existence of brothels. The Act imposes a criminal penalty for keeping a brothel of imprisonment for a period not exceeding three years or imprisonment and a fine. The Act punishes procuring or attempting to procure any female to have unlawful carnal intercourse with imprisonment for a period not exceeding five years. The Act also imposes criminal sentences for offenses related to prostitution and various immoral acts, such as the owner or occupier of a property permitting such acts, living on earnings of prostitution, or enticing someone to commit an immoral act.
Domestic Case Law
The Republic v. Banda, et al. High Court of Malawi (2016)
On February 23, 2016, 19 women were arrested by police and jointly charged “for the offence of living on the earnings of prostitution” in violation of § 146 of the Penal Code of Malawi (the “Penal Code”) ( ¶ 1.1). A Fourth Grade Magistrate in Dedza convicted them “on their own plea of guilt” and fined them MK 7,000.00 each (¶ 1.2). The police lacked evidence to prove the charge against them. In addition, the women did not have legal representation during the proceedings, including when their guilty plea was recorded. The women challenged the conviction on July 28, 2016 on numerous grounds including (i) that the Fourth Grade Magistrate did not have jurisdiction, (ii) that the women were charged together when they should have been charged separately, (iii) that the High Court should not have accepted a unanimous plea, (iv) that “the charge was wrong in law as living on the earnings of prostitution does not target the sex worker herself” but those who live parasitically and exploitatively off her earnings, and (v) that the plea of guilty should not be accepted because the court did not comply with mandatory procedures regarding the defendants’ knowledge. The High Court found that the Fourth Grade Magistrate did not have jurisdiction to hear the case. In addition, the Court held that the arrest of the women was unconstitutional and not based on evidence. Citing the legislative history of the offense, the Court clarified that § 146 of the Penal Code did not criminalize sex work but was mainly intended to protect sex workers from those who would exploit them. The High Court held that even though sex workers may be arrested in circumstances under this section, the arrest must be properly supported by evidence. Consequently, the High Court vacated the convictions and ordered that fines be repaid to the women.