Femicide law to be tested in constitutional challenge claiming it is discriminatory

Lawyers representing the first man to be accused of the new offence of femicide, after shooting his wife dead last year, are questioning its constitutionality.

This emerges from an application to the First Hall of the Civil Court in its constitutional jurisdiction, which was filed this morning on behalf of Roderick Cassar.

Cassar, 42, from Qrendi is currently the subject of criminal proceedings, in which he is accused of fatally shooting his wife, Bernice Cassar, from close range at the Corradino industrial estate in Paola, not far from her workplace.

Amongst the charges Cassar is facing is that of femicide, an aggravated form of the crime of wilful homicide, which was introduced into the Criminal Code in 2022, as a result of the public outcry, which followed the murder of Paulina Dembska in Sliema on New Year's Day.

But the constitutional application signed by lawyers Franco Debono, Arthur Azzopardi, Marion Camilleri and Jacob Magri states that the legislator “had created a sexist and discriminatory law that gives rise to preferential and differential treatment” which discriminated against men.

No other country has introduced a similar legal disposition, the lawyers pointed out.

“Why is the murder of a woman, committed under one of the circumstances mentioned in Article 211A [rendering it wilful femicide], taken to be worse than the murder of a man carried out in identical circumstances?” The same was argued about the harsher punishment.

Further questions were asked about why only the offences of murder and attempted murder were aggravated by the new amendment. “By analogy, should not every crime committed against a woman be treated as being aggravated? Is the life of a man not as precious as that of a woman?”

The lawyers also queried the amendment’s removal of the mitigation of punishment in murders committed “under the first transport of a sudden passion” if the victim is female - but not if the victim is male. “Can’t the murder of a woman also be committed under the immediate influence of a sudden passion?” asked the lawyers.

It was also stressed that the protection from discrimination under Maltese law was based on the European Convention on Human Rights, and in this case was tied to Cassar’s right to a fair trial.

Although currently charged with a crime, Cassar was still presumed innocent, argued the lawyers, but with the introduction of the new offence of femicide, he was now being expressly precluded from utilising a legal defence that otherwise applied in all other comparable scenarios.

Cassar’s lawyers asked the court to declare that the legislative framework introduced by Act X of 2022 to have caused a breach of his fundamental right to a fair trial and protection from discrimination, and requested an effective remedy.

Concerns over the discriminatory nature of the femicide offence were raised by some lawyers at the time of its approval by parliament. The case will be a key test of the law that was hailed as a breakthrough by women's rights advocates at the time of its introduction.