A number of CEE/FSU countries have recently drafted domestic violence laws, joining those countries in the process of implementing domestic violence laws passed in recent years. By learning from other countries' experience, drafters will greatly strengthen new laws.
Countries that have already implemented domestic violence laws have learned much about the effectiveness of their laws from police, judges, prosecutors, and non-governmental organizations providing services to domestic violence victims. For example, they have learned that the lack of a specific provision in the law criminalizing the violation of a civil or administrative order for protection makes it difficult for the police to effectively respond to subsequent incidents of domestic violence involving the same perpetrator and victim. With these lessons learned in mind, the following recommendations are made to those CEE/FSU countries that have not yet drafted their laws.
Review of Domestic Violence Model Legislation
CEE/FSU countries in the process of drafting or amending domestic violence laws should review the following important models for legislation on domestic violence:
Review of Policies and Procedures
Domestic or family violence laws also impact police, prosecutors’ and courts’ daily policies and procedures. Accordingly, it is not only important to amend laws, but police, prosecutors and judges should review internal policies and procedures on crime victim assistance; arrest, detention and release of those suspected of violating criminal laws; and standards for the admission of evidence in administrative, civil, and criminal proceedings to ensure that they are consistent with and support the new remedies for domestic violence victims in the new law.
Minimally Recommended Elements for Domestic Violence Laws
The following elements should be established as the minimally recommended elements of any domestic violence law:
Rationale for Minimally Recommended Elements and Additional Suggested Elements for Domestic Violence Laws
Domestic violence laws should always allow victims to seek a civil remedy, often called an order for protection. International standards, including those from the United Nations and the Council of Europe, encourage governments to create this remedy for domestic violence victims. Laws should allow victims to apply for this protection independently, without an attorney or a government representative, to the courts or police without also filing a police report alleging criminal behavior on the part of the abuser. The order for protection may be issued without a hearing in emergency situations, which is called an “ex parte” order for protection, or after a hearing, which is simply called an “order for protection.” Where an “ex parte” order for protection is issued, either the petitioner or the respondent may request a later hearing.
The violation of a civil order for protection or any kind of restrictive or protective measureshould always be a criminal offense. If the abuser repeatedly violates the restrictions, the criminal penalties should become more severe with each violation.
In addition, other acts, such as assault, terroristic threats, criminal sexual conduct, and interference with an emergency call – acts that are all common in family violence cases – should all be considered to be criminal offenses when they occur between family members or intimate partners.
Also, during the pendency of a criminal case, the court should have the authority to issue a “domestic abuse no contact order,” which is different than an “order for protection.” The domestic abuse no contact order directs the defendant not to contact the victim in any way, by telephone, email, in person, at the victim's place of employment, home, school or in the community. The no contact order should remain in effect until the criminal case is concluded. If the court determines that the defendant's release will be a risk to public safety, including to the victim, or that the defendant will not reasonably appear for the next court proceeding, the court should set conditions for release. Those conditions may include placing the defendant in the care and supervision of a designated person; placing restrictions on travel, association, or place of abode during the period of release; requiring an appearance bond or the deposit of other security; or imposing any other condition deemed reasonably necessary to assure appearance for the next court proceeding. This may include returning to custody after specified hours, which is sometimes done to allow the defendant to go to work and continue to earn a living to support the family and victim, but then the defendant must return to custody after work hours to ensure the victim’s safety. Violation of the “domestic abuse no contact order” should also be a criminal offense.
Whether an individual is convicted of a violation of an order for protection or another criminal domestic violence-related offense, that individual should always be prohibited from possessing a pistol or a firearm if it was used in violating the order for protection.
Review and Revision of Laws Impacting Children
CEE/FSU countries should enact separate laws on child abuse rather than attempt to address it within the domestic violence legislative framework. Because of the correlation between spouse and child abuse, it is important that the laws governing child abuse and child custody do not have unintended effects on battered women. In particular, it is critical that agencies that work with abused children are trained to recognize signs of domestic violence and to respond appropriately.
At the same time, authors of domestic violence laws should work with those responsible for drafting and amending child custody and visitation, child support, and child abuse and neglect laws. Family codes or laws regarding divorce and children should reflect a presumption against granting custody of the children to a violent parent. Primary consideration should always be given to the safety of the victim and her children.
Suggested Elements for Laws Impacting Children
State parties should consider making the following provisions a part of those laws as is suggested by the Model State Code:
· Amend existing child custody laws to include domestic violence as a relevant factor in considering the best interests of the child;
· Create a presumption against custody to the batterer in domestic violence cases involving a pattern of power and control by one intimate partner over another through different forms of abusive, coercive and threatening behaviors;
· Screen to exclude the presence of domestic violence before considering the “friendly parent” factor in custody determinations.
· Provide representation for children in child custody and visitation/parenting time cases and ensure that representatives are well-trained on the dynamics of domestic violence; and
· Allow courts in granting protection orders to order at least temporary child custody and support to the non-violent parent, and allow courts to enter a protection order as to the child.
· Ensure that children who witness family violence are not necessarily categorized as abused or neglected children.
· Ensure that children are protected from violence and not placed in the custody of a violent parent.
· Ensure that children and adult victims of family violence are not endangered in order to accommodate visitation by a perpetrator of family or family violence.
· Permit visitation by the violent parent only if precautionary measures are taken to protect the safety of the child.
The term “best interest factors” generally means relevant factors which a judge will take into consideration when making a custody determination.
The recommendations made here are not meant to be an exhaustive list, but rather a starting point for drafting new laws against domestic violence. CEE/FSU countries must review their own constitutional frameworks; criminal, civil, administrative, and family codes; international treaty obligations; national plans for combatting gender-based violence; and work with those responsible for making, enforcing, and interpreting their laws to draft a law which effectively protects their residents from domestic violence.
Passing and Implementing Domestic Violence Laws
Finally, an effectively drafted law cannot have a real effect on the lives of those it is meant to protect without being passed and properly implemented. Monitoring the implementation of a domestic violence law is critical to its success. Monitoring may take different forms that while distinct, may compliment each other.
Monitoring may occur through human rights fact-finding by non-governmental organizations in country. Fact-finding entails interviewing key stakeholders and documenting their responses in a written report with recommendations to these stakeholders on ways to improve their response. Recent human rights fact-finding reports on the monitoring of the Bulgarian law and the Albanian law reveal that a coordinated community response, and a financial commitment to providing services to victims, among other important measures, must be inherent elements of the implementation.
Monitoring may also occur when countries report to the United Nations bodies. Non-governmental organizations may bring specific issues to the attention of these bodies and may even use the human rights fact-finding reports as a basis for their communications with the United Nations bodies. More information on monitoring will be posted on StopVAW in the coming months.
For further assistance with drafting domestic violence laws or monitoring their implementation, please contact Cheryl A. Thomas, Director, Women's Human Rights Program, The Advocates for Human Rights.