The incorporation of sexual and gender based crimes into Malta’s criminal code : a critical legal analysis

Abstract

Since the incorporation of gender-based crimes in 2014, Malta’s Criminal Code has been substantially supplemented in reaction to urgent appeals to domestically acknowledge sexual and gender-based crimes as high-priority violations. Throughout this thesis, the author critically analysed the provisions of the Maltese Criminal Code which cover sexual and gender-based crimes. The introduction of the crimes of female genital mutilation (FGM), sexual harassment, stalking, enforced sterilization, forced abortion and rape into Malta’s criminal law by means of various Acts amending the Criminal Code were assessed in light of parliamentary discourse, lobbying by non-governmental organisations and how the substantive provisions have developed throughout the years. With the recent introduction of Act XIII of 2018, a comparison of the previous provisions and the newly incorporated ones ensues. A discussion on state responsibility considering several international fora follows, with the author appraising several international legislative materials, pinpointing their legal strengths and weaknesses. This analysis also includes consideration of the concept of State Sovereignty, and how countries may implement national legislation to safeguard their nationals against any sexual and gender-based violence targeted against them as individuals by private persons. In the third chapter, the author discusses the newest addition to Maltese sexual and gender based law; Act XIII of 2018 which came into force on the 12th of May 2018. This chapter comprises an analysis of the substantive criminal law provisions which have supplemented or replaced the previous provisions which embodied sexual and gender-based crimes. Furthermore, other initiatives implemented by means of such Act will be assessed accordingly. The fourth chapter outlines the common and distinct elements of sexual and gender-based crimes; notably violence and consent, specific criminal intent, vulnerability of victims, inter alia. In the concluding remarks, the author discusses possible measures which need to be implemented in order to ensure that national criminal law offers the utmost protection possible to the victim.