By Caroline Palmer, Staff Attorney, Minnesota Coalition Against Sexual Assault

Sexual violence is a significant public safety and public health challenge that touches the lives of everyone, directly or indirectly. In Minnesota, United States, alone over 61,000 residents were sexually assaulted in just one year (2005).[1] In that same year sexual violence cost Minnesota approximately $8 billion or $1,540 per resident; this is 3.3 times the costs incurred by alcohol-impaired driving.[2] Despite growing awareness, sexual violence remains an endemic problem, meaning that it has become an expected occurrence – essentially a social norm that Minnesota shares with other states and the United States shares with other countries.

This is a stunning realization: Our society recognizes that a sizeable number among us will become the victim of a serious and life-altering crime. But we don’t have to accept this norm. In order to shift it we must engage in a variety of responses that run the systemic continuum from primary prevention (stopping sexual violence before it starts) to intervention (including secondary and tertiary prevention approaches that address the short and long-term consequences of sexual violence after it has occurred).[3] This is more difficult than it sounds because many policy makers, responding to public demand to crack down on sex offenders, tend to focus almost exclusively on intervention strategies.[4] Punishment remains the simpler, politically expedient response of choice while engaging in the tougher, far-reaching discussions that entail more than a quick fix is what’s needed. The problem of sexual violence requires multiple approaches in support of a comprehensive solution.

            While no one in the anti-sexual violence movement is suggesting that offender accountability is unimportant – justice must continue to be served on behalf of victims and communities – there is a growing awareness that retributive solutions only aimed at containing the “worst of the worst” are at best a limited response that address just a part of the problem by removing known offenders (remember, sexual assault is an underreported crime – there are far more undetected offenders).  In reality there is no one-size-fits-all approach to sexual violence because the crimes themselves are as varied as the perpetrators who commit them.[5] We must expand upon our strategies to account for these distinctions. According to Dean Eric Janus of William Mitchell College of Law, located in St. Paul, Minnesota, “A key problem with Minnesota’s policy is that we have not asked the right questions. We’ve asked ‘How can we lock up the most dangerous?’ We should be asking, ‘How can we prevent the most violence?’ We should be intensely studying the issue and allocating scarce resources to a mix of programs and approaches whose prevention efficacy has empirical support.”[6] In other words, we should be exploring ways to increase the efficacy of our interventions by also implementing prevention policies. This approach takes a certain amount of courage and patience because prevention strategies require a more long-term commitment – the results of prevention activities are not always immediately apparent, unlike intervention activities that may yield measurable data about convictions within a shorter period of time.

Intervention cannot succeed without a concurrent commitment to primary prevention directed toward both individual and societal change – we need more long-term anticipatory strategies in addition to reactive strategies in order to meaningfully enhance our existing system response. Taking a broader view also allows for earlier and stronger intervention strategies that identify and hold accountable those who may not be the “worst of the worst” yet – or who may never attain that status but nonetheless represent a threat to their victims and potential victims. This includes appropriate penalties for repeat offenders as well as increased access to treatment both within the corrections system as well as in the community.[7]

So why exactly is primary prevention as important as intervention? This is often the question posed by those who wish to prioritize intervention responses. A primary prevention strategy focuses on the “norms, values or belief systems that contribute to sexual violence.”[8] Some of these norms include “objectification and oppression of women,” “unhealthy constructs of manhood, including domination and control,” and “making it ‘normal’ to commodify or objectify children in sexual ways.”[9] The process of shifting norms occurs in a variety of venues and encompasses a wide array of examples. Indeed, the “spectrum of prevention” is a six-tiered approach that includes “influencing policy and legislation, changing organizational practices, fostering coalitions and networks, educating providers, promoting community education, and strengthening individual knowledge and skills.”[10] Policy recommendations related to prevention include better funding for victim services so advocates have time to educate the community about sexual violence as well as serve victims who are already affected. Support for comprehensive sexual health education in schools that includes discussions about healthy sexuality and the meaning of consent is another example. Community outreach activities include engaging in difficult but important discussions with others about the harmful effects of pornography or the sexually toxic images in media and advertising. Businesses can participate by ensuring that workplaces have internal policies and training in place to address sexual harassment and other harms. The opportunities to engage in prevention activities are limited only by the imagination, as the Minnesota Coalition Against Sexual Assault learned when it hosted nearly 200 community, business, faith and public policy leaders at The Minnesota Summit to Prevent Sexual Violence in December 2009, the first of its kind in the country.[11]

It is difficult to change behaviors, attitudes and beliefs, but it is possible to do so. Just consider societal shifts in recent decades with regard to smoking, drinking alcohol during pregnancy, legal protections for people with disabilities, the role of women in leadership positions within the workplace and government, and the list goes on. These changes can be gradual – and sometimes agonizingly slow – but when the right elements come together and gather momentum then change can also occur quite quickly. It requires a commitment by those who have the power to make change to listen to those who seek it, and it also requires a commitment by those who seek change to hold those in power accountable to make the right decisions and ensure that goals are met.

Sexual violence is a problem that must be addressed in a deliberate, multi-layered and sometimes creative manner. In our challenging economy, budget constraints more often than not drive the discussion. As a result, decisions are often borne out of short-term rather than long-term thinking – the need to just do something with the limited resources we have available.  But we cannot afford to continue our course of intervention without making prevention a priority as well. Intervention and prevention are not diametrically opposed constructs. One simply cannot exist without the other. And without effective policies supporting both approaches the goal of ending sexual violence will remain unmet.

The Advocates for Human Rights (The Advocates) has reviewed the final version of the DRAFT Law of the Republic of Armenia on Domestic Violence (hereinafter, “the DRAFT Law”) dated 30 September 2008.  The final DRAFT law was received in full on October 3, 2008.

The Advocates recognizes the time and effort of all those individuals who have participated in the process of drafting and revising the DRAFT Law.  The Advocates commends the Working Group members for their ongoing commitment to strengthening the DRAFT Law in anticipation of its submission to the Parliament of the Republic of Armenia.  The current version of the DRAFT Law contains a number of additions which significantly strengthen it and make it more likely that police, courts, and prosecutors will be able to effectively implement the law.

In particular, The Advocates commends the drafters for the addition of the emergency intervention order (hereinafter, “EIO”) and the long-term protection order (hereinafter, “PO”).  Both of these forms of “special measures for the prevention of domestic violence” are a significant and vital step toward ensuring victim safety and promoting offender accountability.  In addition, the EIO and PO significantly strengthen the law by reinforcing the principle that all individuals have the right to be free from violence. 

International treaties and conventions, including the Convention on the Elimination of Discrimination Against Women (CEDAW), the Council of Europe’s Recommendations on The Protection of Women against Violence (hereinafter, “COE Recommendations”), the Constitution of the Republic of Armenia, and the Republic of Armenia National Action Plan on Improving the Status of Women and Enhancing Their Role in Society (hereinafter, the “Action Plan”), all articulate the principle that women have the right to be free from violence.  The DRAFT Law in its current form more closely complies with the obligations of the Republic of Armenia under international, European, and national law. 

The Advocates strongly recommends that the Republic of Armenia monitor the implementation of the law once it is enacted.  The monitoring will likely expose unintended obstacles to effectively protecting aggrieved persons from further threats of or acts of domestic violence, and holding perpetrators accountable.  Policies and practices should be adjusted to address those obstacles and, if necessary, the law should be amended as appropriate to remove those obstacles.

The Advocates offers the following specific comments on the Working Group’s suggested revisions to the DRAFT Law:

Chapter 1, Article 2:  The main definition, mentioned in the Law

The Advocates welcomes the additional language of Article 2(2)(1), which more fully clarifies the types of actions that constitute domestic violence, focusing on “bodily injury” and the “fear of imminent danger for his/her own or a third party’s life or health.”  In addition, including the words “intentionally” and “recklessly” makes clear that the Republic of Armenia supports zero tolerance of any type of physical domestic violence. 

The Advocates also welcomes the language of Article 2(2)(3), which makes it clear that causing “fear of imminent danger” to an individual’s or third party’s life or health also constitutes domestic violence.

The Advocates expresses concern that the language of Articles 2(2)(2) may still leave the DRAFT Law open to abuse and to retributive counterclaims by violent perpetrators as was discussed in The Advocates’ first and second set of comments to the DRAFT Law.  The Republic of Armenia should, at a minimum, monitor the implementation of the law and these specific provisions of the law for such abuse.  If the monitoring exposes such abuse, the law should be amended as appropriate to remove the possibility for such abuse.

The Advocates commends the drafters for including specific cross references to the Criminal Code when defining acts that constitute domestic violence. 

Chapter 1, Article 2, (3-9):  Definitions of Aggrieved Person, Respondent, Petitioner, and more

The Advocates recognizes the new terminology for the domestic violence victim and for the perpetrator of domestic violence in Article 2, (3-5).  Such terminology is commonly used in the domestic violence laws in other countries without adverse effect.

The Advocates welcomes the addition of the language “protection of aggrieved person” in the same sentence as “prevention of the domestic violence” in Article 2(6)  This new language more clearly reflects two of the Republic of Armenia’s current priorities of prevention and protection, rather than the previous priority of prevention alone.  Similarly, the addition of the language “prosecution of individuals accused of committing the acts of domestic violence” demonstrates the Republic of Armenia’s third priority to hold perpetrators accountable for their actions.  Finally, the addition of the language “rehabilitation of persons subjected to domestic violence” demonstrates the fourth priority of providing services and assistance to victims of domestic violence. 

The Advocates commends the drafters for the addition of the emergency intervention order (EIO) and the long-term protection order (PO).  Both of these forms of “special measures for the prevention of domestic violence” are a significant and vital step toward ensuring victim safety and promoting offender accountability.  In addition, the EIO and PO significantly strengthen the law by reinforcing the principle that all individuals have the right to be free from violence. 

Chapter 2, Article 4:  Subjects Preventing Domestic Violence 

The Advocates recommends that Article 4 also specify courts as “bodies preventing domestic violence” because they are later mentioned in Article 12 of the DRAFT Law as it relates to issuing long-term protection orders.

Chapter 2, Article 6:  Authorities of the police

The Advocates expresses concern that the language in Article 6(2)(2) places impractical demands on the police to work on eliminating the “causes and conditions, conducive to committing acts of domestic violence.”  This concern was raised in The Advocates’ first and second set of comments as well. 

The Advocates expresses concern that the language of Article 6(2)(5) places a responsibility on the police that is more appropriate for advocates with extensive experience working with victims of domestic violence.  In the interest of protecting the safety of the public, the police should instead conduct assessments of the lethality of the situation when they encounter domestic violence.  (Please see: http://www.stopvaw.org/Lethality_Assessments.html).

Chapter 2, Article 8:  Counseling Centers

The Advocates recommends that the language “upon the request of the aggrieved person” be added to Article 8(2)(1) and (5).  The confidentiality of victims of domestic violence should always be a top priority and government officials and others should always be aware of the risks to domestic violence victims when disseminating any information about their cases. 

Chapter 3, Article 10:  Types of special measures for prevention of domestic violence   

Again, The Advocates commends the drafters for the addition of the emergency intervention order (EIO) and the protection order (PO).  Both of these forms of “special measures for the prevention of domestic violence” are a significant and vital step toward ensuring victim safety and promoting offender accountability.  In addition, the EIO and PO significantly strengthen the law by reinforcing the principle that all individuals have the right to be free from violence. 

The Advocates recommends that the violation of either of these special measures be a criminal offense distinct from any other domestic violence criminal offenses.

Chapter 3, Article 11:  Emergency intervention order

The Advocates commends the drafters for the addition of the emergency intervention order (EIO).  The EIO is a critical mechanism for protecting domestic violence victims.

The Advocates recommends that the drafters consider language that states the EIO should remain in effect unless and until the respondent requests a hearing.  The Advocates also recommends that the courts also have the authority to issue EIOs upon application by aggrieved persons.  The Advocates recommends that the violation of an EIO be a criminal offense distinct from any other domestic violence criminal offenses.

The Advocates expresses concern about the language of Article 11(3).  The language “prevented through a less restrictive alternative” may be interpreted by police to implicitly allow for the kinds of warnings that were previously included in the DRAFT Law.  Such language sends the message that domestic violence may still be allowed rather than zero tolerance for domestic violence.  The EIO is, in fact, the least restrictive alternative provided for by law, and one which remains in effect for only 96 hours.  Thus, if the respondent argues that his/her liberty is at stake, it is for a short time and only because the safety of the aggrieved person is in danger and has been deemed to be of greater priority for that specific time-limited period.  The Advocates recommends that the language “prevented through a less restrictive alternative” be omitted from the DRAFT Law.

The Advocates commends the drafters for the language of Article 11(5), which provides that the respondent may be removed from the home regardless of ownership.  This language sends a strong message that the rights to life and security of person outweigh the right to property in cases of domestic violence.

The Advocates expresses concern about the language of Article 11(5)(6) and 11(8) providing that a child may be removed from the residence and placed in temporary care by the Children’s Reception and Orientation Center.  Such provisions will likely dissuade aggrieved persons from seeking EIOs because they fear losing even temporary care of their children.  The drafters should ensure that aggrieved persons are not further victimized by the removal of their children from their custody.  The Advocates recommends that this provision be changed to specify that when the aggrieved person is a child under 12 and the order is issued against his/her parent or legal guardian, the child should be placed in the custody of the non-violent parent.  This would protect the child and would also protect, rather than dissuade or punish, the parent who has not committed any act prohibited by law.

The Advocates expresses concern about the notice provision in Article 11(6).  While notice is an important component of effective due process in any legal system, notice often proves to be practically difficult to accomplish.  This is especially true when respondents leave the home or are otherwise unavailable.  It is therefore important to specify the type of notice required.  Even where personal service of notice on the respondent is required, many laws provide that service may be made by published notice for 7 days of publication.  This is provided that the petitioner files with the court an affidavit stating that an attempt at personal service by law enforcement was unsuccessful because the respondent is avoiding service by concealment or otherwise, and that a copy of the petition and notice of hearing has been mailed to the respondent at the respondent’s residence or that the residence is not known to the petitioner. 

The Advocates expresses concern about the language of Article 11(7), which involves the prosecutor in the civil process of filing a PO.  Applications for protection orders should remain in the control of the aggrieved persons.  Prosecutors, who are typically involved in criminal cases, generally have the authority to issue criminal charges against a perpetrator of domestic violence.  Both the civil PO and criminal domestic violence charges should be available, but the former should remain in the control of the aggrieved person, while the latter should be in the prosecutor’s control.

The Advocates expresses concern about the language of Article 11(8) regarding child custody.  Please see the comments above in the paragraph about Article 11(5)(6) and 11(8).  Drafters should ensure that aggrieved persons should be able to receive the protection of an EIO or PO without the involvement of child protection institutions.

The Advocates recommends that the Republic of Armenia monitor the implementation of this provision of the law closely, given that the EIO is to be issued by the police, remain in effect for up to 96 hours, and forwarded by the police to the prosecutor who must file an application for a protection order within 48 hours.  If the monitoring exposes any obstacles to effectively protecting aggrieved persons from further threats of or acts of domestic violence, the law should be amended as appropriate to remove those obstacles.

Chapter 3, Article 12:  Protection order

The Advocates commends the drafters for the addition of the protection order (PO) and the very specific remedies outlined in Article 12.  The PO is a critical mechanism for protecting domestic violence victims.  The Advocates recommends that POs be permanent, not limited to 6 months, unless the respondent requests a hearing to challenge or modify the PO.  In addition, The Advocates recommends that aggrieved persons be explicitly authorized to apply for POs on their own behalf. 

The Advocates recommends that the violation of a PO be a criminal offense distinct from any other domestic violence criminal offenses.

The Advocates expresses the same concern about Article 12(1)(6) regarding child custody.  This concern is the same concern expressed about Article 11(5)(6) and 11(8). 

The Advocates expresses the same concern about notice in Article 12(5) as the concern about Article 11(6).

The Advocates welcomes the language of Article 12(6) which makes it clear that the EIO and PO are not criminal code provisions.  Separating the EIO and PO is important to protect the aggrieved person and provide him/her with a remedy, and at the same time to make it clear to the respondent that criminal cases are brought by the prosecutor, not by the aggrieved person.  It is important that both criminal sanctions and civil remedies be available in domestic violence cases and that these legal processes not be mutually exclusive.

The Advocates recommends that the Republic of Armenia monitor the implementation of this provision of the DRAFT Law closely.  Statistics about the duration of the POs, the number of POs granted, denied, cancelled, changed either in content or in form (i.e. from an EIO to a PO), and appealed should be kept and made available publicly.  In addition, qualitative data about the effectiveness of the POs should be gathered on a regular basis from police, courts, relevant Government ministries, counseling centers and shelters, and aggrieved persons themselves.  This data should be compiled by the relevant government ministry and published on an annual basis. 

Chapter 3, Article 13:  Preventive registration of offenders and removing them from the register

The Advocates expresses concern about counseling for the respondent in Article 13.  It is important to note that programs aimed at rehabilitation of violent offenders are often not effective.  (Please see: http://www.stopvaw.org/Batterers_Intervention_Programs.html).  It is important to dedicate and prioritize scarce resources to services for aggrieved persons over services to respondents.

Chapter 3, Article 14:  Juvenile respondent

The Advocates expresses concern that the language of Article 14 may not protect an aggrieved person who is a juvenile in an intimate relationship with another juvenile. 

If a juvenile is defined as any person under the age of 18, a juvenile does not have legal capacity under Armenian law unless that person has obtained legal capacity by some other means, such as marriage.  If two juveniles are in an intimate relationship, but are not married, the DRAFT law provides that an emergency order or a protection order cannot be entered against him/her.  If one of the juveniles commits an act of domestic violence against the other juvenile, the aggrieved juvenile should be able to seek an EIO or PO against the respondent juvenile.  The current language of the law does not allow this.

The Advocates welcomes the language of Article 14(2), which allows a juvenile of the age of criminal responsibility, presumably age 16, to be charged criminally with domestic violence.  At the same time, The Advocates expresses concern that this provision is not consistent with Article 14(1) in that a juvenile could be charged criminally, but not have an EIO or PO against him/her.  At a minimum, The Advocates recommends that a juvenile of the age of criminal responsibility can be presented with an EIO or PO.  

Chapter 4, Article 15:  Grounds for taking and applying special measures of prevention of domestic violence

The Advocates recommends that Article 15(4) be made consistent with Articles 4 and 12 to ensure that the courts are identified as competent bodies envisaged by Article 4(2).  The courts should have the authority to issue EIOs and POs, while the police have the authority to issue EIOs.  The drafters should ensure that aggrieved persons remain in control of applications for POs, not third parties.

Chapter 4, Articles 16:  Application of special measures for prevention of domestic violence

The Advocates recommends that Article 16 be made consistent with Articles 4 and 12 to ensure that the courts are identified as competent bodies envisaged by Article 4(2).

The Advocates recommends that Article 16(3) be revised to specify that a decision about an application for an EIO be made immediately to protect the safety of the aggrieved person. 

The Advocates welcomes the language of Article 16(4) providing that an appeal of a decision does not suspend an EIO or PO.  This is an important mechanism to ensure the safety of the aggrieved person.

Chapter 4, Articles 17-20:  Declining, canceling, changing and terminating special measures for prevention of domestic violence

The Advocates expresses concern that the special measures for prevention of domestic violence may be declined, canceled, changed or terminated other than by the expiration of the time period set by the police or the court.  In particular, the language of Article 18(4) gives wide latitude for legal officials who are not sufficiently trained in the dynamics of domestic violence to decline applications for these measures.   

The Advocates recommends that these four articles be replaced by an article which simply specifies that the court alone may modify the terms of an existing protective order.  In addition, courts should receive training on the dynamics of domestic violence as soon as is practicable.

Chapter 4, Article 22:  Unjustified application of special measures for prevention of domestic violence

The Advocates expresses concern that Article 22 will deter aggrieved persons from applying for an EIO or PO as needed.  There should not be any penalties imposed for seeking an EIO or PO.

Chapter 5, Article 23:  Liability for committing acts of domestic violence

The Advocates expresses concern about Article 23, which appears to provide that when a prosecutor files criminal charges of domestic violence, an EIO or PO may not also be granted.  Protective measures and criminal sanctions should not be mutually exclusive.  Both of these options should be available in all domestic violence cases, and may proceed simultaneously.  

Drafters should consider the inclusion of a domestic abuse no contact order in criminal cases.  This is different from the civil EIO or PO provided by the DRAFT law.  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 make sure the victim remains safe.

Chapter 7, Article 25:  Confidentiality and disclosure of information

The Advocates welcomes the confidentiality provisions of the DRAFT Law.  These provisions provide significant protection to the aggrieved person. 

Chapter 8, Article 26:  Right to reside in a shared household

The Advocates welcomes the language of Article 26, which provides that the aggrieved person shall not be excluded from the household that the aggrieved person and respondent shared.   

Chapters 9 and 10, Articles 27-32:  Transitional Support Services and Domestic Violence Rehabilitation Fund

The Advocates welcomes the language of Chapters 9 and 10, which provide practical assistance to aggrieved persons, funded by the government and non-governmental sources, so that they may become self-sufficient and contributing members of Armenian society.  Establishing the mechanisms in these two chapters helps to make the Republic of Armenia’s commitment to protecting aggrieved persons a reality.

The Advocates for Human Rights (hereinafter “The Advocates”) have reviewed the

DRAFT Law on Protection of Domestic Violence of Montenegro (hereinafter “DRAFT Law”).  The Advocates has partnered with non-governmental organizations and government ministries in Central and Eastern Europe (CEE) and the Former Soviet Union (FSU) for over fifteen years.  The Advocates has a long history of reviewing draft domestic violence laws, including recent review of the draft laws of Azerbaijan, Armenia, Kazakhstan and Tajikistan. 

The Advocates also has experience in assisting countries, including Bulgaria and Georgia, in amending domestic violence laws after the implementation of those laws has been monitored.  In providing comments on the DRAFT Law of Montenegro, we draw upon this experience as well as our experience in the state of Minnesota, United States where our domestic violence law has been in effect for thirty years and the law has been amended each year to improve the protection of victims, the prosecution of the perpetrators, and the prevention of domestic violence.    

Overview of Comments and Concerns

The Advocates commends the government of Montenegro for undertaking the difficult task of drafting this legislation to protect its citizens from domestic violence.  The government of Montenegro should ensure the DRAFT Law provides for both an administrative or civil emergency order for protection and an administrative or civil order that is issued after a full hearing.  The DRAFT Law should direct authorities, either the courts or the police, to immediately issue emergency orders for protection upon application by the victim of domestic abuse.

If the respondent requests a hearing, a hearing may be promptly scheduled to review the application and make a determination of whether the order should remain in effect. Both the emergency order for protection or the order issued after a full hearing should state that the offender be removed from the home and ordered to stay away from the victim and her children.  If the administrative or civil order for protection or emergency order is violated, the violation should be a criminal offense.   The safety of the victim and her children should be the most urgent priority of the DRAFT Law. 

In other Former Soviet Union (FSU) and Central and Eastern European (CEE) countries, those attempting to implement laws without the key provisions mentioned above have recently recommended amendments to their laws to include such provisions.  Police, prosecutors, and judges have discovered, through the direct experience of trying to ensure victim safety and to hold offenders accountable, that such provisions are integral to the law.  In many FSU/CEE/CA countries, orders for protection are called protective or restrictive orders or measures. 

In the DRAFT Law of the Montenegro, the articles of the Law that most closely resemble a protective or restrictive order or measure are in Articles 28 and 29. These articles refer to an “order of suspension or prohibition of returning home” and “protective measure.”  As they currently stand, these Articles begin to describe some of the important elements described in the paragraph above.  However, additional elements should be included. Because the DRAFT Law uses the term “protective measure,” these comments will retain that language.