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Orders for Protection: Are They Effective and Cost-Effective?
In partnership with UNIFEM, The Advocates for Human Rights created a section on developing legislation on Domestic Violence for UNIFEM’s Virtual Knowledge Centre to End Violence against Women and Girls. The following is an excerpt from a case study in the Domestic Violence section. Domestic Violence, along with sections addressing other forms of violence against women and girls, may be found under Legislation at www.endvawnow.org.
In 2009, the U.S. Department of Justice published “The Kentucky Protective Order Study: A Rural and Urban Multiple Perspective Study of Protective Order Violation Consequences, Responses, and Costs.” The report addressed the question of whether a civil order for protection (OFP) was an effective remedy for victims of violence and whether the benefits of having an order for protection were worth the costs of obtaining and enforcing the orders. The study took place in Kentucky, USA, which allows OFPs to be filed against any family member, including spouses and former spouses, or, if the parties are unmarried, they may request an OFP if they are or have been living together or if they have a child in common. (Kentucky Statutes 403.720)
The report, the most comprehensive in the US to date, surveyed over two hundred women in both rural and urban areas, and examined their responses at the time they sought an OFP, 3 months after it was issued, and 6 months after it was issued. The study examined victim decisions on whether or not to report a violation, and determined the costs of protective orders for victims and the costs of domestic violence to society.
To determine if OFPs were a cost-effective method to combat domestic violence, the study established the costs of domestic violence both before and after an OFP was obtained. Victims were surveyed about services they received associated with the domestic abuse. Costs measured included the costs of emergency room visits, shelter stays, legal services and incarceration fees. The victims were asked about time lost from work and family responsibilities. The value of lost or damaged property was reported. Finally, victims were asked to recount their experiences with serious stress, anxiety or depression due to the abuse, both before and after the issuance of the OFP.
The report found that women face numerous obstacles to obtaining and enforcing OFPs, such as confusion about the process, court employees who were rude or discouraging, having to take off work and arrange for child care, and judges who seemed to rush them and not listen to them. The report found that “…obtaining a protective order and seeking enforcement of a protective order take courage and persistence…”
One-half of the women surveyed reported no protective order violations during the 6-month follow-up period. Protective order effectiveness was also measured by violence severity before and after the protective order, the number of victims who were afraid of future harm before and after the issuance of the OFP, and the victim’s own perceived effectiveness of the order. Respondents were also asked why they chose to report a violation or why they did not.
The study found that victims reported 51% of the OFP violations. The main reason for not reporting violations was that the victims did not believe that the justice system would respond adequately, either because they hadn’t received help previously, the violation was perceived to be not serious, they had no proof of a violation, or they believed that they would somehow be blamed for the violation. The study concluded that “…women appear to do a kind of cost-benefit analysis for whether or not to report the violation, trading off the seriousness of the violation with the probability that anything, or nothing, would come from reporting the violation to the justice system. Women also appear to consider whether reporting a violation might result in retaliation…Other reasons some women indicated they did not report violations included statements about not wanting to harm the perpetrator and not wanting the children to see their father in trouble.”
When the victims were asked why they thought the abuser did not violate the OFP, the majority responded that it was because he was afraid of going to jail.
The study concluded that orders for protection are effective in reducing violence. Even for those who experienced violations of the OFPs, both the severity of the violence which recurred and the fear of future harm were significantly reduced during the follow-up period. The majority of the victims believed that the protective order was effective; only 4.3% of them dropped the order by the end of the follow-up period.
The study also concluded that the cost to society of a protective order is very small (about USD$354) when compared to the many costs that a victim of domestic abuse incurs: USD$17,500 for the 6 months of violence before an OFP was issued; USD$13,000 for the 6 month period after an OFP was issued. The study reported that protective orders saved the state of Kentucky $85 million in one year. Thus, an OFP costs little but creates a large benefit for victims and society.
The study also issued a number of recommendations on increasing access to OFPs, addressing gaps in victim safety and offender accountability, training law enforcement personnel, improving OFP enforcement, and responding more effectively to domestic violence cases which involve stalking.
For the complete report, click here.
International and Governmental Organizations Work to Monitor and Implement Laws on Violence against Women and Girls
As part of The Advocates for Human Rights' work in creating the section on Developing Legislation on Violence against Women and Girls for UNIFEM’s new website, the Global Centre to End Violence against Women and Girls (http://endvawnow.org), we asked our colleagues from around the world to share information on projects on advocacy, monitoring and implementation of laws on violence against women and girls. In the last several months, we have highlighted some of the responses we received.
This month we end the series by highlighting the work of the international and governmental organizations who responded. We thank all who sent us examples of their work. The scope of the work that dedicated activists accomplish each year to end violence against women is truly inspiring!
The Council of Europe has worked to analyze legislation on violence against women and to compile existing laws. The Final Activity Report of the Council of Europe Task Force to combat Violence against Women, including Domestic Violence gives examples of national legislation on different forms of violence against women, points to difficulties in implementation and offers an overall assessment of what type of legal measures should be taken. See:
http://www.coe.int/t/dghl/standardsetting/violence/EG-TFV(2008)6_complete%20text.pdf
The Council of Europe has also collected English and French versions of existing national legislation in the area of violence against women from 32 member states. These are published in the Compilation of legislation in the field of violence against women. See: http://www.coe.int/t/e/human_rights/equality/05._Violence_against_women/069_EG(2009)3_E.asp#TopOfPage.
Additional laws can be found in the section on domestic legislation of the website for the Council of Europe Ad Hoc Committee on preventing and combating violence against women and domestic violence (CAHVIO): http://www.coe.int/t/dghl/standardsetting/violence/domestic_law_en.asp
This Committee is mandated to draft a convention on violence against women, which will be a very important contribution to setting legally binding standards in this field in Europe and beyond. It would harmonize existing legislation among state parties to this convention and would help to enhance the quality of legislation. The Committee is currently negotiating a first draft of the convention. All relevant documents can be found at www.coe.int/violence.
In June of 2009, the OSCE Secretariat published Bringing Security Home: Combating Violence Against Women in the OSCE Region - A Compilation of Good Practices (June 2009). See: http://www.osce.org/gender/item_11_38013.html. It compiles good practices in the area of prevention, protection and prosecution, including legislation.
For more information, contact the Advisor on Gender Issues at www.osce.org/gender/
In 2003-2004, the International Centre for Reproductive Health coordinated a monitoring study on the difficulties of implementing legal provisions related to female genital mutilation (FGM) in European countries, in order to find out why, despite the fact that specific laws on FGM exist, few cases reached courts in Europe.
The study analyzed the implementation of laws and barriers to their implementation in Belgium, Sweden, Spain, United Kingdom, and France. The monitors assessed the following:
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presence of criminal law provisions on FGM
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existence of FGM practices in local communities
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reporting of cases
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investigations of reported cases
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court cases on FGM
Field work, consisting of document analysis and case study, was performed by local partners. A comparative analysis of the data from all five countries was performed. See: International Center for Reproductive Health (ICRH), Assessing the impact of legislation in Europe with regard to female genital mutilation (2004).
In 2007 and 2008, the International Centre for Reproductive Health implemented a second project on FGM and law enforcement. As part of the project, capacity-building workshops were conducted in five EU countries. Each workshop identified a number of difficulties in implementing laws on FGM in the respective countries. The project identified specific problems regarding implementation:
· Lack of knowledge about FGM and the legal framework
· Risk assessment
· Mechanisms to increase reports of (suspected) FGM cases
· Coordination
Project coordinators also made recommendations for policymakers to improve law enforcement on FGM. See: Leye, et. al., Striking the right balance between prosecution and prevention of female genital mutilation in Europe: A review of legislation (2009).
Countries Work to Monitor and Implement Laws on Violence against Women and Girls, Part 4
As part of The Advocates for Human Rights' work in creating the section on Developing Legislation on Violence against Women and Girls for UNIFEM’s new website, the Global Centre to End Violence against Women and Girls (http://endvawnow.org), we recently asked our colleagues from around the world to share information on projects on advocacy, monitoring and implementation of laws on violence against women and girls that have worked well in their countries. In the next several VAW Monitors, The Advocates will highlight some of the responses we received. We thank all who sent us examples of their work. The scope of the work that dedicated activists accomplish each year to end violence against women is truly inspiring!
In Russia, ANNA, the National Center for the Prevention of Violence, formed a National Independent Commission on Women’s Human Rights and Violence against Women in 2008 to monitor women’s human rights violations. Members of the Commission included experts on gender equality and gender-based violence, experienced crisis counselors, and advocates for women’s rights. The Commission investigated reports of domestic violence, sexual harassment, sexual assault, trafficking in women, and violent crimes against women as part of traditional practices. The Commission drew from interviews, expert surveys, information provided by NGOs, an analysis of media articles, and an analysis of survivor complaints. The result, Territory of Silence: Women’s Human Rights and Violence against Women in Russia, is the first report to document these practices solely and exclusively edited by Russian experts.
Among other findings, the Commission found that two-thirds of homicides in Russia can be attributed to domestic violence. It noted that there are only 200 beds for women and children in a country of 142 million people. The Commission also found that killings committed in the name of “honor” and bride abductions occur in Russia. It noted that the non-responsiveness of state officials to complaints of violence against women constitute a violation of Russia’s obligations under several human rights instruments, and called upon the Government of the Russian Federation to develop and implement a National Action Plan on Combating and Preventing Violence against Women.
For more information, contact Center ANNA, at annaruss93@gmail.com
In Serbia, the Autonomous Women’s Center published a summary report, written by a coalition of NGOs, one of the independent monitoring on the implementation of the “Concluding comments and recommendations of the UN Committee on the Elimination of Discrimination against Women” which were made on the Initial Report on the Implementation of the CEDAW submitted by Serbia in 2007. The NGOs found that Serbia’s existing legislation “represents a relatively good mechanism for the protection of victims of violence in the family and for punishing the perpetrators” but that a number of legal loopholes prevent the legislation from having full force. The NGOs are also working to improve systematic data collection in different areas, calling on the government to collect information on the types and frequency of domestic violence committed as well as perpetrator and victim characteristics. They are also calling on the government to provide public officials with systematic training on how to support domestic violence survivors, and to monitor the officials’ compliance with that training. For the complete report (in Serbian) click here.
For more information, contact the Autonomous Women’s Center at azc@azc.org.rs
Also in Serbia, The Association of Women Sandglass has been implementing a project to protect and support victims of domestic violence. The NGO obtained the support of local and national authorities through persistent public awareness and education campaigns on gender-based and sexual violence, round tables, and media initiatives. Local authorities invited The Association of Women Sandglass to participate in developing a Strategy on Social Welfare, and the NGO succeeded in placing the issue of violence against women in the Strategy. As a result of this collaboration, Sandglass received a grant from the National Ministry of Work and Social Welfare to continue their important work.
For more information, contact The Association of Women Sandglass at sandglass@ptt.rs
Experts from Spain noted that the Special Government Delegation on Violence against Women created a hotline for information and legal advice in 2006, free of charge and available 24 hours. The hotline provides assistance in Spanish, Catalan, Gallego, Vasco, English, and French. Calls have increased each year since its creation.
The General Judiciary Council in Spain has elaborated a number of protocols to support the implementation of the Organic Act 1/2004 of 28 December on Integrated Protection Measures against Gender Violence:
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Protocols for the implementation of electronic devices to assess protection orders of victims of gender violence
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A guide of jurisdictional action on violence against women
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Protocol for the implementation of protection orders for victims of gender violence
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Protocol to coordinate the national enforcement and security agents and the judiciary
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Protocol for the healthcare of survivors of gender violence
For more information, see www.poderjudicial.es.
Since 2006, the Spanish NGO Medicus Mundi-Andalucía has been implementing an awareness and sensitivity campaign on female genital mutilation for health care professionals and social workers. The NGO coordinates trainings in universities and hospitals. For more information see: www.luchamgf.org.
Medicus Mundi-Andalucía also published, in collaboration with the Junta de Andalucía, Associación Andaluza de Matronas and CICODE-Universidad de Granada, a report entitled “Female genital mutilation: Treatment and prevention.”
In Ukraine, advocates noted that the first law on domestic violence, which passed in 2001, represented great progress in recognizing and addressing the problem of domestic violence. However, according to that law, victims could be punished for having provoked the offender by their behavior. Women’s NGOs, including Women’s Information Coordination Center from Dnipropetrovsk, La Strada Ukraine, Women’s Perspectives from Lviv, The League of Business and Professional Women from Donetsk, and Progressive Women from Vinnitsa, worked to repeal this provision, and in 2008, they were successful.
Current projects of the NGO Progressive Women are focused on incorporating victim input into the law and its implementation. Activists accompanied police on domestic violence cases, interviewed battered women, and participated in the court cases. They noted recurrent problems, including:
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Delays in police response
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Perpetrator not removed from family
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Fines paid from family budget make things worse for victims
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Forensic exams difficult to obtain
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Women must often pursue their cases on their own
For more information, contact Progressive Women at: progress@mail.vinnica.ua.
In United Kingdom, the government has recently published Together We Can End Violence Against Women and Girls: A Strategy. This detailed plan represents an integrated approach to address violence against women and to support victims by prevention, provision of services, and protection. The government also published a strategy for the prosecution authority entitled Violence Against Women Strategy and Action Plans, which aims to secure the coordination and an improved prosecution response to gender-based crimes.
Countries Work to Monitor and Implement Laws on Violence against Women and Girls, Part 3
As part of The Advocates for Human Rights' work in creating the section on Developing Legislation on Violence against Women and Girls for UNIFEM’s new website, the Global Centre to End Violence against Women and Girls (http://endvawnow.org), we recently asked our colleagues from around the world to share information on projects on advocacy, monitoring and implementation of laws on violence against women and girls that have worked well in their countries. In the next several VAW Monitors, The Advocates will highlight some of the responses we received. We thank all who sent us examples of their work. The scope of the work that dedicated activists accomplish each year to end violence against women is truly inspiring!
The Anti-Violence Network of Georgia has participated in the elaboration of the National Action Plan for 2009-2010, and has prioritized active cooperation with the police. Together with the Center for Protection of Constitutional Rights and the Georgian Young Lawyer’s Association, they created a handbook for police, which supports implementation of the law against domestic violence and close cooperation between NGOs and the police, thus ensuring more effective protection of victims. The Anti-Violence Network has also trained police, social workers, journalists, medical professionals, lawyers, judges, and prosecutors. In 2008, the Inter-Institutional Council on Implementation of Actions for the Elimination of Violence was created, which unites government agencies and NGOs in their common objective to combat domestic violence in Georgia.
Contact information: Anti-Violence Network of Georgia
In India, the Women’s Rights Initiative of the Lawyers Collective (LCWRI) has provided legal aid to survivors of domestic violence, sexual harassment, and sexual assault for over ten years. Lessons learned while providing legal aid were translated into advocacy initiatives aimed at effecting progressive law reform. Following years of draft preparation, regional consultations, and advocacy efforts, the Protection of Women from Domestic Violence Act came into effect in 2006. That same year, the LCWRI began the process of monitoring the implementation of the law, and has published three monitoring reports to date. The reports and other advocacy materials produced by LCWRI under a project from the UN Trust Fund on VAW are available at http://www.unifem.org.in/violenceagainstwomen.html. The LCWRI is continuing its work of monitoring the implementation of the law using analysis of data collected from across the country and in partnership with other NGOs.
Contact information: Lawyers Collective Women’s Rights Initiative: http:www.lawyerscollective.org/wri
In Kazakhstan, the cooperation between government agencies and NGOs in preparation of strategies and programs to further the goals of the National Plan of Action and the Strategy for Gender Equality grows stronger as international standards on women’s human rights are implemented. Law enforcement there aims to count protection of the rights of women as an integral part of protecting the rights and freedoms of its citizens. Thus, special police divisions have been created for women victims of violence, and the Department of Public Safety has created an automated databank on violence against women, which has the capacity to sort information by many parameters, including the consequences of the violence, the age of the victim, information about her life, and the decision reached in the criminal case.
Contact information: Marat Bashimov, The Institute of European Law and Human Rights, Kazakhstan
Kosovo has been the site of many projects since the end of the war in 1999. One of the most comprehensive projects involved the UNDP in partnership with the Agency for Gender Equality, Prime Minister’s Office, Kosova Women’s Network, and the Women’s Safety and Security Initiative (WSSI), which supported qualitative research on the forms of gender-based violence in Kosovo. The research findings served as a key reference for drafting the Law on Domestic Violence and the National Action Plan on Violence Against Women: Domestic Violence. (For more detail, see: http://www.ks.undp.org/?cid+2,103,230.)
Also under the UNDP WSSI, Kosovo judges and prosecutors were trained to effectively implement the laws and were informed about the kinds of abuses suffered by victims of trafficking, and how the abuse might affect a victim’s ability to testify in court. The WSSI also established and equipped interviewing rooms for victims of trafficking and domestic violence in six regional police stations, and equipped the Trafficking in Human Beings Investigation Section in six regions with surveillance and recording equipment, including a vehicle.
Contact information: Luljeta Vuniqi, Kosovar Center for Gender Studies.
In Macedonia, the Macedonia Women’s Rights Center-Shelter Center has developed the program “Free Legal Aid” which provides legal advice and court representation to victims of domestic violence and others seeking divorce, including seeking custody of children and providing for their monetary support. They also help victims receive financial support through other channels. The MWRC-Shelter Center issued the report “Monitoring of the court proceedings,” which identifies the strengths and weaknesses of the Macedonian legal framework regarding the protection of women’s rights. Both criminal and civil court proceedings were evaluated and their efficacy in domestic violence cases was noted for further strategic action.
Contact information: Macedonia Women’s Rights Center- Shelter Center.
Experts in Moldova have been working to develop the implementation mechanism for the Domestic Violence Law of Moldova, including amendments which would criminalize domestic violence, sexual harassment, and marital rape. The Women’s Law Center of Moldova has conducted several trainings for judges, prosecutors, and lawyers on the implementation of Moldova’s domestic violence law, which has resulted in the issuance of the first protection orders in Moldova. Activists continue to develop handbooks and training manuals for police, judges, prosecutors, and lawyers in domestic violence cases.
Contact information: Angelina Zaporojan-Pigari, President, Women’s Law Center, Chisinau, Republic of Moldova, at angelina_zaporojan@yahoo.com
The National Center Against Violence (NCAV) in Mongolia completed a study on forms of rape which are not covered under Mongolian legislation, such as incest, marital rape, and date rape, in 2008. The study found that despite the increasing incidence of these crimes reported in recent years, law enforcement does not view these as forms of rape. Charges which do not involve the use of physical force are dismissed as not actionable under the current Criminal Code. The study also found that rape victims must often give testimony many times, are not granted privacy in the interview setting, and that officers lack training in assisting victims of rape. These obstacles contribute to a general reluctance in society to report rapes. The NCAV recommended, among other recommendations, that the legislation on rape be changed to include rape without physical force and that it include specific provisions on incest, marital rape, and date rape. It noted that special investigative procedures should be developed which ensure confidentiality and safety for victims as well as favorable and prompt investigation conditions. The NCAV called for female police officers with special training to deal with cases of rape and for a code of ethics regarding these vulnerable victims. See: The situation of sexual violence and rape and relevant legislation in Mongolia.
After the tragic suicide of a small boy who feared the abuse of his step-father, the NCAV successfully lobbied for the adoption of the National Program on Combating Domestic Violence in 2007. Under this program, NCAV’s shelters began to receive partial funding for their operation, thus implementing a first step in ensuring that the government of Mongolia meets its obligation to provide safety for its citizens. The NCAV also asked the Supreme Court of Mongolia to issue interpretations on specific provisions of the Law on Combating Domestic Violence to facilitate the effectiveness of the law. Subsequently, the Court declared that a restraining order need not require proof of physical damage to the victim, and that separation measures mean that courts must require the perpetrator not to live with the victim in the same home.
Contact information: The National Center Against Violence.
In Montenegro, SOS Hotline Niksic implemented the project “Mobbing and sexual harassment in a new employment law” in 2008-2009. The NGO obtained relevant data on the prevalence of harassment and sexual harassment in the workplace in Montenegro, which was then used to lobby government ministries for proposed amendments. This was the first time that this type of data had been obtained. SOS Hotline Niksic also implemented a program of coordinated actions for the elimination of domestic violence, including: an initiative to establish the Council for Gender Equality as a permanent parliamentary body in Niksic municipality; creating police protocol in domestic violence cases; and trainings for police, prosecutors, the judiciary, health professionals, and others on domestic violence and gender equality. The entire program was later cited by CIDA as one of the most successful projects they realized with partner NGOs.
From 2004-2009, SOS Podgorica conducted a number of monitoring studies of law and policy in Montenegro. It also signed Memorandums of Understanding with relevant institutions and formed multidisciplinary teams in four towns to educate key stakeholders on domestic violence issues. SOS Podgorica has worked to implement a project to build the capacity of health care professionals to treat abused women and children and has created protocols, in partnership with the police, to prevent and investigate domestic violence cases and to improve the protection of victims. The NGO believes that these projects were successful due to the participation of all interested stakeholders, including victims. SOS Podgorica plans to provide further education to all institutions involved in violence against women cases and to continue to exchange positive practices and lessons learned with fellow professionals.
Contact information: SOS Hotline for Women and Children Victims of Violence Niksic at sosnk@cg.yu
SOS Hotline for Women and Children Victims of Violence Podgorica at sos_pg@cg.yu
Countries Work to Monitor and Implement Laws on Violence against Women and Girls, Part 2
As part of The Advocates for Human Rights' work in creating the section on Developing Legislation on Violence against Women and Girls for UNIFEM’s new website, the Global Centre to End Violence against Women and Girls (http://endvawnow.org), we recently asked our colleagues from around the world to share information on projects on advocacy, monitoring and implementation of laws on violence against women and girls that have worked well in their countries. In the next several VAW Monitors, The Advocates will highlight some of the responses we received. We thank all who sent us examples of their work. The scope of the work that dedicated activists accomplish each year to end violence against women is truly inspiring!
In August 2009, the Animus Association, Bulgaria, which operates the only shelter of its kind in the Sofia region for women and children who have experienced violence, made its 24-hour hotline for women and adolescent victims of violence toll-free. The NGO has also implemented a project to develop specialized services to facilitate the economic rehabilitation of trafficked persons. Another project focuses on the identification and assessment of good practices currently employed by NGOs working to prevent domestic violence in Bulgaria. Animus has partnered with the National Commission on Combating Human Trafficking and La Strada International to create a National Referral Mechanism which would increase cooperation between state agencies and NGOs in protecting victims of trafficking.
Contact information: Animus Association, animus@animusassociation.org
In 2008, the Association Demetra, Bulgaria, founded the Alliance for Protection against Domestic Violence. Between 2007 and 2008, Demetra organized seminars in 12 Bulgarian cities and trained various professionals on the community response model. Between 2007 and 2009, Demetra carried out activities to educate children at risk of trafficking.
Contact information: demetra@unacs.bg
Medica Zenica, Bosnia and Herzegovina, launched an innovative six-month campaign last year to educate government officials about gender-based violence. The project consisted of trainings and roundtable discussions for members of municipal gender equality boards and council chairpersons in the Zenica Doboj Canton territory. These workshops introduced municipal officials to international mechanisms for promoting gender equality, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). As a result of the project, officials who participated in the training expressed their intent to amend local documents in accordance with these international standards.
Contact information: Medica Zenica
Rights for All (Prava za sve), an organization working to end violence against women and girls in Bosnia and Herzegovina, is preparing a survey on violence against Roma women.
United Women (Udruzene zene), an organization based in Banja Luka, Bosnia and Herzegovina, monitored 27 out of 30 print and electronic media outlets in 2006 to assess the position of women within these media organizations as well as the portrayals of women in the news.
Contact information: United Women, office@unitedwomenbl.org
The Pacific Regional Rights Resource Team (RRRT) of the Secretariat of the Pacific Community, based in Suva, Fiji, recently launched the “Changing Laws, Protecting Women” project, which aims to effect change in family law and laws on violence against women through targeted lobbying campaigns in six Pacific Island countries. The lobbying campaigns are based on draft model legislation and are implemented by core groups established in each country.
Contact information: sandrab@spc.int
Countries Work to Monitor and Implement Laws on Violence against Women and Girls
As part of The Advocates for Human Rights' work in creating the section on Developing Legislation on Violence against Women and Girls for UNIFEM’s new website, the Global Centre to End Violence against Women and Girls (http://endvawnow.org), we recently asked our colleagues from around the world to share information on projects on advocacy, monitoring and implementation of laws on violence against women and girls that have worked well in their countries In the next several VAW Monitors, The Advocates will highlight some of the responses we received. We thank all who sent us examples of their work. The scope of the work that dedicated activists accomplish each year to end violence against women is truly inspiring!
In Albania, the process of drafting a law on domestic violence involved the cooperation of international organizations and many Albanian NGOs, including the Citizen’s Advocacy Office, the Center for Legal Initiatives, and the Women Advocacy Center, as well as a public awareness campaign to support the need for the law. The law “On Measures against Domestic Violence” (2006) was the first citizen’s bill presented to the Albanian Parliament in the history of Albanian democracy. The law was followed by the State Strategy for Gender Equality and Domestic Violence 2001-2010, which was also created through a participatory and inclusive process. Still to come are hotlines and adequate shelters and support systems for victims. The Network against Gender-Based Violence and Trafficking began work in 2007 to build a referral network for case management and a database system for keeping records on domestic violence cases.
Refleksione Association, Albania, on behalf of the Network against Gender-Based Violence and Trafficking, is implementing a two-year project called “Making it Real: Implementing the Law against Domestic Violence in Albania.” The core initiative of the project is piloting the development and implementation of integrated and sustainable referral systems for women victims of violence at the local level. The project also involves trainings for police, prosecutors, and lawyers so that their knowledge and capacity to fulfill the responsibilities assigned to them in the Albanian law is increased.
UNDP Albania, UNICEF Albania, and UNDP Small Arms Project supported the Albanian Institute of Statistics in conducting a national domestic violence survey in Albania. The survey report, Domestic Violence in Albania: A national population-based survey, was published in March of 2009. The goal of this significant project, the first of its kind in Albania, was to establish national baseline data on domestic violence in Albania.
Contact information: Refleksione, info@refleksione.org
Different and Equal NGO in Albania reported that Albanian NGOs have conducted a number of monitoring studies on different aspects of laws on violence against women, including:
- Enforcement of the Law on Measures against Domestic Violence (2009) Monitoring of the decisions of the Tirana District Court on the issuance of the Protection Orders/Immediate protection orders and cases of domestic violence victims supported with free legal aid by the Center for Legal Civic Initiatives (CLCI). Monitoring period 30.04.2008 – 01.06.2009. Prepared by Center for Legal Civic Initiatives and Civil Rights Defenders For more information visit the website: http://www.qag-al.org.
- Study on the Social-Economic Reintegration of Victims of Trafficking in Albania (2009), prepared by the NGO “Different & Equal.” For more information visit the website: http://www.differentandequal.org.
- Violence in the Family and in the Communities with Different Ethnicities (2008), prepared by the Psycho –Social Center “Vatra.” For more information visit the website: http://www.qendravatra.org.al
Contact information: “Different and Equal,” different&equal@icc-al.org
In 2007-2009, the Gender Alliance for Development Center (GADC) of Albania created and implemented a number of trainings to increase the professional capacities of those who work directly with victims of domestic violence. They trained forensic experts, judges, prosecutors, police, bailiffs, and social service workers not only on the domestic violence law in Albania, “On Measures against Domestic Violence” (2006), but also on the importance of establishing a cooperative network of professionals. “Joint trainings with all these actors…not only will increase the capacities of local law enforcement professionals, it will also set up the necessary bridges of communication to make the intervention effective,” responded Mirela Arqimandriti, Executive Director of GADC.
Contact information: Gender Alliance for Development Center, gadc@gadc.org.al
The Human Rights in Democracy Centre (HRDC) of Albania has worked with victims of violence since 2004, and is currently monitoring the implementation of the law on domestic violence, particularly regarding the mandate given to the Ministry of Health and the Ministry of Interior to provide infrastructure to properly implement the law. They report that the Ministry of Health and other relevant authorities have prepared health protocols on domestic violence that enable victims to receive a forensic report and free-of-charge medical treatment. However, HRDC has observed that particularly in rural areas, health care providers are not identifying cases of domestic violence or providing victims with forensic reports in order to prove the violence in court.
HRDC has also noted that, although the violation of protection order is a crime according to Article 320 of the Albanian Criminal Code, in many cases police do not proceed with criminal proceedings when violations of protection orders occur. Police also have a legal duty to refer victims and if necessary, transport them, to assistance centers. HRDC notes that implementation in this area is also lacking, and recommends that specialized domestic violence sections be established in every police station.
Contact information: Human Rights in Democracy Centre, qdnjd@albaniaonline.net
In Armenia, in 2009, UNFPA Armenia initiated an assessment of the compliance of Armenian legislation with international standards on the protection of women’s human rights. An expert group reviewed the laws, noted gaps in the legislation and made recommendations for amendments. The assessment noted that acts of gender-based violence in Armenia are not reported or prosecuted. Domestic violence is not penalized as a specific criminal offense, and there is a lack of protective measures for victims and their children. The recommendations for amendments to the laws in Armenia call for improvements in these areas. A focus group, consisting of government and civil society members, was convened to review the recommendations from a practitioner’s standpoint and to design a strategy for implementation of the recommendations.
Contact information: Jina Sargizova, UNFPA CGBV Project Coordinator, at Sargizova@unfpa.org or see www.genderbasedviolence.am.
The Women’s Rights Center (WRC) of Armenia, in consultation with the Open Society Institute Assistance Foundation- Armenia, has been working intensively on a draft law on domestic violence since 2008. They established a working group consisting of experts from government ministries, courts, and others. The Advocates for Human Rights has been involved as experts to assess the law at different stages of development, as well as to provide a training session on advocacy for the working group members in 2008. The WRC continues to lobby for the law.
Contact information: Naira Altunyan, OSI Program Coordinator, at naira@osi.am.
Also in Armenia, UNFPA Armenia and the Armenian Statistical Service implemented a quantitative survey to collect data on gender-based violence in 2009-2010, in response to the need for official data on violence against women and girls, so that the importance of addressing the problem could be substantiated. They sought to create an official baseline for policy makers in Armenia to utilize in the formation of policies and programs to reduce gender-based violence. Survey administrators collected representative information at the marz, or regional level in Armenia. (There are 11 marzes in Armenia.) Using the database of addresses from the 2001 population census, field workers visited nearly 5000 households and administered questionnaires on gender-based violence. A working group, consisting of ministry officials, police, and members of civil society and led by a sociologist and gender expert, was created to analyze the data. The results will be published during the second quarter of 2010.
Contact information: Jina Sargizova, UNFPA CGBV Project Coordinator, at Sargizova@unfpa.org or see www.genderbasedviolence.net.
Understanding the Relationship Between Prevention and Intervention Strategies to Stop Sexual Violence
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). 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. 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). 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. 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. 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.” 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.
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.” 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.” 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.” 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.
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 Comments on The DRAFT Law of the Republic of Armenia on Domestic Violence 14 October 2008
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.
Comments by The Advocates for Human Rights on the DRAFT Law of Montenegro “On Protection from Domestic Violence” 19 November 2009
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.
Specific Comments on Existing Elements in the Montenegro DRAFT Law “On Protection of Domestic Violence”
The Advocates for Human Rights offers the following specific comments on the DRAFT Law, which are based upon information found in the Model State Code and the U.N. Framework.
Article 2:
The government of Montenegro should consider limiting the definition of domestic violence to physical harm, bodily injury, and the fear of imminent danger for his/her own or for a third party’s life or health. Inclusion of psychological and economic violence in the definition of domestic violence has in some cases had the unintended consequence of creating opportunities for perpetrators to counter-claim psychological or economic abuse against those they have been violent towards. For example, an angry or disgruntled violent abuser may seek protection measures against his wife for using property owned by him. Or, a perpetrator may claim that physical violence is an appropriate response to an act he sees as economically disadvantageous to him. Claims of psychological and economic violence may also be very difficult to prove in legal proceedings.
Article 3:
The scope of the law should be expanded to include those who are or have been in intimate relationships.
Article 6:
Although officials should have the authority to issue protective measures based on the application of a non-violent parent for themselves and on behalf of their child, The Advocates is concerned about including provisions addressing child abuse and child neglect in the domestic violence law in Article 6 and Article 8. Domestic violence laws are not well-suited to address child abuse and neglect. Domestic violence laws are intended to provide an immediate remedy of separation and protection. Child abuse and neglect should be addressed as a separate law containing specifically tailored remedies for neglected or abused children and procedural protections for parents.
Article 8:
As stated above in the comment to Article 2, the government of Montenegro should consider limiting the definition of domestic violence to physical harm, bodily injury, and the fear of imminent danger for his/her own or for a third party’s life or health. Including psychological violence or verbal attacks in a law on domestic violence may provide an opportunity for perpetrators to counter-claim abuse against those they have been violent towards.
The government of Montenegro should consider replacing the phrase “sexually harassed” with “sexually abused” or “sexual violence towards…”
The language that states: “Spies and otherwise grossly disturbing other family members” is vague. The Advocates suggests replacing it with the following provision on stalking:
“Stalking or threatening other family members with a pattern of threatening behaviors such as following a person, appearing at a person's home or place of employment, making phone calls, leaving written messages or objects/gifts, sending faxes or letters, vandalizing a person's property, or engaging in digital stalking or electronic monitoring.”
Naming these behaviors "stalking" is useful in a number of ways. First, the stalking itself, and not just the assault which often results, is a form of violence. The batterer is taking specific actions, such as calling or appearing at a place of work, that are designed to intimidate and coerce his former partner or his family member. Second, the term "stalking" identifies a pattern of behaviors that often leads to serious or fatal attacks. Identifying the pattern of behaviors can therefore be useful in taking steps to prevent an assault. Third, naming this pattern of behaviors helps to convey the seriousness of these behaviors. Individually, the acts that constitute stalking, such as telephone calls, may appear to be relatively innocent. Taken together, however, they indicate the presence of a severe threat to the victim.
The increased use of technology in society today has created more opportunities for stalkers to track their victims. Digital stalking and electronic monitoring are two forms of stalking used to track a victim through technology. Stalkers may trace a persons’ computer and internet activity, send threatening e-mail or electronic viruses.
The Advocates recommends that the government of Montenegro omit the clause in Article 8 that states “Insolent behavior threatens the peace of a family member with whom they do not live in a family community.” This language is too vague and the risk of the violent offenders using it against the victim is very strong. The focus of the Law on Protection of Domestic Violence should be on physical violence.
The final clause of Article 8 deals with child neglect. As mentioned above, such behavior should be addressed as a separate law containing specifically tailored remedies for neglected children and procedural protections for parents.
Article 9:
This Article mandates the reporting of violence by a large range of official bodies, including health, educational, and nongovernmental institutions. Mandatory reporting of violence should be required only when the victim is a child, the victim is a vulnerable adult, or when a health care provider notes a suspicious wound that appears to have resulted from a firearm.
Article 10:
The requirement that police “immediately take actions and measures to protect victims” in accordance with several laws of Montenegro is an important part of a domestic violence law. In addition, The Advocates suggest that the legislation should clearly state that police and other law enforcement officials are obligated to:
· Pursue all cases of domestic violence, including assaults that result in low-level injuries such as bruises, cuts, scrapes and burns among others;
· To respond promptly to such calls;
· To confiscate any weapons involved; and
· To perform certain duties as part of the investigative process, including interviewing parties separately, recording the complaint and filing a report, and advising the victim of her rights.
Article 11:
The Advocates commends the government of Montenegro for envisioning a coordinated community response such as is articulated in Article 11. The plan and activities for victim assistance should be in accordance with the victim’s needs and choices.
Article 14:
The language in Article 14 should be amended to clearly indicate that the offender will be ordered to leave the home, enabling the victim and her children to remain there safely, regardless of ownership of the residence. In some countries police found that the lack of authority to remove the violent offender from the home proved problematic to their implementation of the law. This led them to seek amendments to allow them to remove the violent offender from the home.
Article 15:
The Advocates commends the government of Montenegro for ensuring the confidentiality of information and personal data. However, the focus should be on the risk that the perpetrator presents to the victim and to protect the victim from the perpetrator; for example, preventing the perpetrator from locating the victim.
Article 16:
A victim’s ability to communicate confidential information is an important element in the DRAFT Law. Domestic violence advocates should not be compelled to disclose any opinion or information received from or about the victim without the consent of the victim unless ordered by the court. Legislation should ensure that these advocates must be trained in counseling and in domestic violence issues and in the law and practice of Montenegro.
Article 17:
The Advocates commends the government of Montenegro for establishing a team of experts not only to implement the protection of victims of violence, but also to monitor and improve the coordinated community response to violence, with the goal of ensuring the human rights of the citizens of Montenegro.
Article 19:
The focus of a law on domestic violence should be on the safety of the victim. Resources should be directed to victim safety and assistance and not to re-education of violent perpetrators. Rather than devote scarce resources to the “elimination of circumstances that foster or encourage the exercise of new violence,” the government should focus on identifying the violent offender, holding the offender accountable for the violence, and ensuring the victim’s safety.
Article 20:
The language in Article 20 should clearly state that the authorities have the power to remove the perpetrator from the home and that the other provisions of Article 20 are to be imposed against the perpetrator.
Resources should be directed to victim safety and assistance, and not to mandatory psychosocial treatment of perpetrators or treatment of a drug or alcohol addiction of the perpetrator.
Protective measures should also contain provisions which prohibit the violent offender from further violence or from threatening to commit further violence, and from possessing or purchasing a firearm.
The Advocates recommends that Article 20 include a provision that allows the court to order a broad range of relief necessary in order to protect the safety of the victim or the family of the victim. For example, the legislation should also include provisions for financial support which make it possible for a victim to live independently from the abuser. The order should also contemplate temporary financial support of the children; and temporary use and possession of any joint property, and restraint on transfer of joint property. The order may also include restitution paid by the abusing party to the victim.
Article 21:
The Advocates commends the government of Montenegro for the removal of the perpetrator from the home, which keeps the victim safe and allows her to remain in the home. The Advocates recommends that the authority to remove the perpetrator from the dwelling place for an extended period of time should rest with the court. The time period should be extended to at least one year.
The Advocates recommends that the government of Montenegro revise the language “re-do the violence” in Articles 21 through 25 to state that any of these protective measures may be imposed if violence or the threat of violence has already occurred; or if the violence or threat of violence is likely to reoccur. The government must send the message of zero tolerance of domestic violence. If the perpetrator has committed or threatened domestic violence, he should be held accountable immediately. The government’s interest in the victim’s safety must be the priority.
Article 22:
The time period of the prohibition to approach the victim should be extended to at least one year.
Article 23:
The time period of the prohibition of harassment and stalking should be extended to at least one year.
Article 27:
The consent of the victim should be required if the application for a protective measure is submitted by institutions of social work and child protection, the police, state prosecutor or others. The victim’s wishes should be the final factor in determining who may apply for an order for protection, because victims are most often the best judge of the dangers presented to them by violent offenders. These dangers have been shown to increase when a victim applies for protective measures.
Article 28:
The police barring order should prohibit the violent offender from contacting the victim or from arranging for a third party to do so. It should also prohibit the violent offender from purchasing, using or possessing a firearm. As stated above, the order should be extended to at least one year.
Article 29:
As stated in the comment to Article 27, The Advocates recommends that the consent of the victim be required in any application for a protective measure. The victim should be able to approach the court on her own to apply for a protective order.
The provision requiring the input of social institutions in obtaining the necessary evidence should be abolished. The statement of the victim alone should be sufficient for the court to grant the protective measure. No other evidence should be necessary.
Article 33:
The decision of the court on the protective measures should be delivered to the competent authorities within 24 hours.
Article 36:
The Advocates commends the government of Montenegro for including penalties for violations of the protective measures in Articles 36 through 39, which better enable the courts to hold offenders accountable. In addition to penalties for violating administrative or civil protective measures, criminal laws should clarify that domestic assault is a distinct crime, including those assaults that involve low-level injuries such as bruises, cuts, scrapes and burns. Laws and policies should make clear that law enforcement and prosecutors are obligated to pursue all cases of domestic violence, including assaults resulting in low-level injuries. It is important to ensure that crimes involving domestic violence are not treated less seriously than other crimes. Many jurisdictions increase criminal penalties for repeated domestic violence offenses, even if they involve low-level injury.
Article 38:
The Advocates commends the government of Montenegro for imposing a penalty on the perpetrator for violating a protective order. There should be enhanced penalties for including repeated violations of protective orders. The government of Montenegro should consider that high fines may pose unintended but disastrous consequences to the victim who often relies on the financial support of the offender.
Article 39:
The imposition of a reporting requirement of the perpetrator’s violation of a protective measure, and a large penalty for failing to comply with the requirement, on a wide range of state, health, education and non-governmental workers is too far-reaching and unenforceable.
Concluding Comments and Recommendations
The Advocates recommends that the government of Montenegro continue to revise and strengthen the DRAFT Law to ensure that each provision of the law embodies the principle that women have the right to be free from violence, and to have a remedy for domestic violence and the threat of domestic violence so that they no longer have to endure such violence in silence. In addition, the government should ensure that offenders are held accountable for domestic violence. In countries where domestic violence laws have been in place for twenty to thirty years, domestic violence laws have evolved to include three primary components:
-
Administrative or civil law provisions that all the government to protect domestic violence victims (orders for protection, hotlines, shelters, and other victims services),
-
Criminal law provisions that allow the government to prosecute perpetrators of domestic violence (assault, terroristic threats, criminal sexual conduct, interference with an emergency call and other criminal laws), and
-
An infrastructure to promote prevention of domestic violence (government offices to coordinate and award funding to the private sector).
Each of the components -- Protection, Prosecution and Prevention – is important for a government to undertake when addressing domestic violence. However, governments must sometimes prioritize one component over another when resources are scarce. Where that is the case, it is vital that resources are directed at protecting domestic violence victims. Without such protection, victims are often unable to cooperate in the prosecution of the perpetrators of domestic violence. In addition, any prevention efforts must address the immediate need for the safety and security of domestic violence victims.
The Advocates strongly recommends that the government of Montenegro monitor the implementation of the law once it is enacted. The monitoring will likely expose unintended obstacles to effectively protecting victims from further threats of or acts of domestic violence, and to 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.
Review of Model Legislation
In the process of revising and strengthening the law, The Advocates recommends that the drafters revisit the following important models for legislation on domestic violence:
-
The U.N. Framework for Model Legislation on Violence against Women (2008) (hereinafter “U.N. Framework”)
-
The Protection of Women against Violence (2002), Recommendations, Rec(2002)5 (hereinafter “COE Recommendations”)
-
Family Violence: A Model State Code (1994) (hereinafter “Model State Code”)
-
Sample National Domestic Violence Laws on StopVAW (includes Albania and Bulgaria)
-
Minnesota Domestic Abuse Act (2008)
Domestic violence laws also impact police, prosecutors, and courts. 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 remedies for domestic violence victims in the new law.
With regard to the provisions on children in the DRAFT “Law on Protection of Domestic Violence” the authors of the DRAFT Law 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. The government of Montenegro 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 rebuttable presumption against custody to the batterer;
-
Provide representation for children in child custody and visitation/parenting time cases, ensuring that representatives are well-trained on the dynamics of domestic violence;
-
Allow courts in granting orders for protection to temporarily order child custody and support to the non-violent parent, and allow courts to enter an order for protection as to the child;
-
Ensure that children who witness domestic 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 domestic violence are not endangered in order to accommodate visitation by a perpetrator of family or domestic violence; and
-
Permit visitation by the violent parent only if precautionary measures are taken to protect the safety of the child.
Domestic violence laws should always provide for an administrative or 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 should be issued without a hearing in emergency situations. Such an emergency order is often called an “ex parte” order for protection. Where no emergency exists, a permanent “order for protection” should be issued after a hearing. Where an “ex parte” order for protection is issued, either the petitioner or the respondent may request a later hearing.
The violation of an administrative or civil order for protection should always be a criminal offense. If the abuser repeatedly violates the restrictions, the criminal penalties should become more severe with each violation.
Criminal laws should clarify that domestic assault is a distinct crime, including those assaults that involve low-level injuries such as bruises, cuts, scrapes and burns. Laws and policies should make clear that law enforcement and prosecutors are obligated to pursue all cases of domestic violence, including assaults resulting in low-level injuries. It is important to ensure that crimes involving domestic violence are not treated less seriously than other crimes. In fact, many jurisdictions increase criminal penalties for repeated domestic violence offenses, even if they involve low-level injury. For example, three or more convictions for assaults involving low-level injury may become a felony with more severe sanctions. The DRAFT Law should communicate to the public zero tolerance for all violence.
In addition, other acts, such as assault, terroristic threats, criminal sexual conduct, and interference with an emergency call – acts that are all common in domestic 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 from 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 during the pendency of the criminal proceeding. 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 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 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 the commission of the offense.
The DRAFT Law of Montenegro should include the following provisions, at a minimum:
-
A fully developed emergency order for protection;
-
A fully developed permanent order for protection administrative or civil remedy;
-
A criminal offense for violation of the order for protection in the administrative or civil law with a cross-reference to any relevant provisions of the criminal laws, such as punishment for various levels of offenses;
-
Clear language in the criminal laws and criminal procedure codes that makes domestic assault a crime, including those assaults resulting in low-level injuries such as bruises, scrapes, cuts and burns;
-
Clear language in the criminal laws and procedure codes that obligates law enforcement and prosecutors to pursue domestic violence cases including those involving low-level injuries;
-
Enhanced penalties for multiple violations of the order for protection; and
-
Enhanced penalties for other criminal offenses committed against those who fall within the meaning of Chapter 1, Article 3 of the DRAFT Law.
The term “best interest factors” generally means relevant factors which a judge will take into consideration when making a custody determination.
Comments by The Advocates for Human Rights on the DRAFT Law of the Azerbaijan Republic, “On Prevention of Domestic Violence” April 13, 2009
The Advocates for Human Rights has reviewed the DRAFT law of the Azerbaijan
Republic, “On Prevention of Domestic Violence.”
The Advocates congratulates the Azerbaijan Republic for undertaking the difficult, but
vital, process of drafting this legislation to protect its citizens from domestic violence. In
so doing, the Azerbaijan Republic takes a step toward fulfilling its positive obligations
under the international treaties and conventions it has ratified. These obligations include
guaranteeing an individual’s right to be free from violence, and a state’s responsibility to
protect individuals not only from violations of their rights by government entities, but
also against acts of violence committed by private entities.1
The Advocates recommends that the Azerbaijan Republic continue to revise and
strengthen the DRAFT law to ensure that each provision of the law embodies the
principle that women have the right to be free from violence, and to have a remedy for
domestic violence and the threat of domestic violence so that they no longer have to
endure such violence in silence. The government of the Azerbaijan Republic can play an
important role in changing societal attitudes that blame women for domestic violence.
The Advocates strongly recommends that the Azerbaijan Republic monitor the
implementation of the law once it is enacted. 2 The monitoring will likely expose
unintended obstacles to effectively protecting victims from further threats of or acts of
domestic violence, and to 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.
Review of Model Legislation
In the process of revising and strengthening the law, The Advocates recommends that the
drafters revisit the following important models for legislation on domestic violence:
• The U.N. Framework for Model Legislation on Violence against Women (2008)
(hereinafter “U.N. Framework”)3
• The Protection of Women against Violence (2002), Recommendations,
Rec(2002)5 (hereinafter “COE Recommendations”)4
• Family Violence: A Model State Code (1994) (hereinafter “Model State Code”)5
• Sample National Domestic Violence Laws on StopVAW (includes Albania and
Bulgaria)6
• Minnesota Domestic Abuse Act (2008)7
Domestic violence laws also impact police, prosecutors, and courts. 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 remedies for domestic violence victims in
the new law.
With regard to the provisions on children in the DRAFT law “On Prevention of Domestic
Violence,” the authors of the DRAFT law 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. The Azerbaijan Republic
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;8
• Create a rebuttable presumption against custody to the batterer;
• Provide representation for children in child custody and visitation/parenting time
cases, ensuring that representatives are well-trained on the dynamics of domestic
violence;
• Allow courts in granting orders for protection to temporarily order child custody
and support to the non-violent parent, and allow courts to enter an order for
protection as to the child;
• Ensure that children who witness domestic 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 domestic violence are not endangered in
order to accommodate visitation by a perpetrator of family or domestic violence;
and
• Permit visitation by the violent parent only if precautionary measures are taken to
protect the safety of the child.
Domestic violence laws should always provide for 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 should be issued without a hearing in emergency situations. Such an
emergency order is often called an “ex parte” order for protection. Where no emergency
exists, a permanent “order for protection” should be issued after a hearing. 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, including Azerbaijan’s “order of protection,”
should always be a criminal offense. If the abuser repeatedly violates the restrictions, the
criminal penalties should become more severe with each violation.
Criminal laws should clarify that domestic assault is a distinct crime, including those
assaults that involve low-level injuries such as bruises, cuts, scrapes and burns.9 Laws
and policies should make clear that law enforcement and prosecutors have an obligation
to aggressively pursue all domestic violence cases including those involving low-level
injuries.
In addition, other acts, such as assault, terroristic threats, criminal sexual conduct, and
interference with an emergency call – acts that are all common in domestic violence cases
– should all be considered to be criminal offenses when they occur between family
members or intimate partners.10
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 from 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 during the pendency of the criminal proceeding. 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 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 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 the commission of the offense.
The DRAFT law of the Azerbaijan Republic should include the following provisions, at a
minimum:
• A fully developed emergency order for protection;
• A fully developed order for protection civil remedy;
• A criminal offense for violation of the order for protection in the civil law with a
cross-reference to any relevant provisions of the criminal laws, such as
punishment for various levels of offenses;
• Clear language in the criminal laws and criminal procedure codes that makes
domestic assault a crime, including those assaults resulting in low-level injuries
such as bruises, scrapes, cuts and burns;
• Clear language in the criminal laws and procedure codes that obligates law
enforcement and prosecutors to pursue domestic violence cases including those
involving low-level injuries;
• Enhanced penalties for multiple violations of the order for protection; and
• Enhanced penalties for other criminal offenses committed against those who fall
within the meaning of Chapter 1, Article 1 of the DRAFT Law.
Specific Comments on Existing Elements in the Azerbaijan Republic DRAFT Law
“On Prevention of Domestic Violence”
The Advocates for Human Rights has received the Unofficial Translation of the DRAFT
law of Azerbaijan Republic “On Prevention of Domestic Violence” from the Public
Union for Gender Equality and Women’s Initiatives and offers the following specific
comments on the DRAFT Law, which are based upon information found in the Model
State Code and the U.N. Framework.11
Chapter I, General Provisions, Article 1. Fundamental notions, 1.0.1 Domestic violence
The Advocates welcomes the expansion of the concept of domestic violence to include
not only family members, but also those living together, including relatives and those in a
non-official marriage. The Advocates recommends that the drafters expand the scope of
who may be held accountable for or protected against acts of domestic violence to
include: spouses and former spouses, whether the marriage is official or non-official,
parents and children, persons related by blood or marriage, persons who are presently
residing together or who have resided together, persons who have a child together
regardless of whether they have ever lived together and persons in an intimate or dating
relationship.
The definition of domestic violence should be limited to physical harm, bodily injury and
the fear of imminent danger for his/her own or a third party’s life or health. Provisions
which include psychological violence, psychological pressure, moral damage or
economic violence are difficult to prove in legal proceedings and may leave the DRAFT
law open to abuse and to retributive counterclaims by violent perpetrators. The Republic
of Azerbaijan 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 welcomes the language regarding “violating sexual inviolability and
freedom,” but cautions that the provisions on forced marriage would be better addressed
in family and criminal laws and that the provision on compulsory labor would be better
addressed in labor and criminal laws.
Chapter I, Article 1, 1.0.2 victim of domestic violence
The scope of those who should be protected against acts of domestic violence should be
broadened to include spouses and former spouses, whether the marriage is official or nonofficial,
parents and children, persons related by blood or marriage, persons who have a
child together regardless of whether they have ever lived together and persons who have
been in or are involved in an intimate or dating relationship.
Chapter I, Article 1, 1.0.3 physical domestic violence
Physical violence should focus on physical harm, bodily injury or assault or the infliction
of fear thereof. Listing specific forms of physical violence may result in some form of
abusive or violent behavior that is not on the list being excluded from sanctions.
Chapter I, Article 1, 1.0.4. psychological domestic violence
As stated above, the definition of domestic violence should focus on physical harm,
bodily injury and the fear of imminent danger for his/her own or a third party’s life or
health. Provisions which include psychological violence or economic violence may leave
the DRAFT law open to abuse and to retributive counterclaims by violent perpetrators.
For example, a perpetrator may claim that physical violence is an appropriate response to
an act of “psychological” violence.
Chapter I, Article 1, 1.0.5 Applying illegal limitations of economic nature in domestic
environment
The definition of domestic violence should focus on physical harm, bodily injury and the
fear of imminent danger for his/her own or a third party’s life or health. This provision
on economic violence is vague and may leave the DRAFT law open to abuse and to
manipulation or retributive counterclaims by violent perpetrators. For example, an angry
or disgruntled violent abuser may seek protection measures against his wife for using
property owned by him. Or, a perpetrator may claim that physical violence is an
appropriate response to an act of economic limitations.
The Republic of Azerbaijan 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. In particular, the provision “creating economic dependence of a person,
preserving such dependence and making use of such dependence” is overly broad as it
describes the situation of many families who combine their economic resources for better
survival.
Chapter I, Article 1, 1.0.6 Sexual domestic violence
The Advocates welcomes the recognition of sexual violence as an important aspect of
domestic violence, and commends the drafters for its inclusion herein. The Advocates
recommends the addition of the following language to Article 1, 1.0.6: “No marriage or
other relationship shall constitute a defense to a charge of sexual domestic violence under
this legislation.”12 Sexual assault, including marital rape, should also be defined as a
crime within Azerbaijan’s criminal code.13
Chapter I, Article 3, 3.0.1 Main principles in prevention of domestic violence
The Advocates recommends that two main principles be added as subsections to 3.01,
Provision of main human rights and freedoms of every person as stated in the
Constitution of the Azerbaijan Republic:
• The safety of a victim of domestic violence and the victim’s children should be
ensured.
• The accountability of the perpetrator of domestic violence should be ensured.
Chapter I, Article 3, 3.02 Impermissibility of intrusion into one’s family and personal life
except in cases and limits as defined by the legislation
The Advocates recommends that this principle be carefully defined to prioritize the need
for safety over privacy in cases of domestic violence. The experience in many countries
has been one of insufficient investigation and documentation of domestic violence based
on the justification that the violence occurred within the family.14 Therefore, the drafters
should ensure that violence in the family, or in the private sphere, will be taken seriously
and pursued vigorously.
Chapter I, Article 4, Subjects of the Law
The Advocates commends the drafters for a comprehensive list of the possible subjects of
the DRAFT law “On Prevention of Domestic Violence” and recommends that the
following be added: former spouses whether or not they are currently living together,
persons who have a child in common regardless of whether they have lived together at
any time, and persons who have been or are involved in a significant romantic or sexual
relationship.
Chapter II, Regulations for Processing Complaints on Domestic Violence, Article 5, State
entities responsible for processing complaints on domestic violence
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 as was described
earlier in these comments.
The Advocates strongly recommends that the criminal law and the criminal procedure
code of Azerbaijan make clear that all domestic violence assaults, including those
resulting in low-level, non-permanent injuries such as bruises, cuts, scrapes, burns etc.
are criminal offenses. State prosecutors and law enforcement officials should be
responsible for pursuing all such assaults.
Chapter II, Article 7, 7.0 Obligations of corresponding state body realizing criminal
pursuit committed in the result of domestic violence
The state body or agency which is responsible for the vital tasks described in Article 7
must be clearly named and there should be a clause in this article which allocates funding
to the named state body so that it may fully implement this law.
Chapter II, Article 7, 7.0.1
State aid centers should be directed by advocates or other non-profit service agencies that
work directly with victims and can best represent their interests. While it is very
important that government agencies recognize the seriousness of domestic violence and
act to end it and to support the victims, leadership in service to victims should be
provided by the private non-profit agencies that work directly with victims. These
organizations best know victim’s needs and can most effectively represent their interests.
The government should provide funding and support to these groups.
Aid, including shelter, clothing and food, should also be provided for the children of a
victim at the aid centers described herein.
The Advocates recommends that references to the rehabilitation of the victim be deleted.
Many victims of domestic violence do not need psychiatric counseling or rehabilitative
services. Rather, domestic violence victims need government and non-governmental
agencies to focus resources on ensuring their safety through adequate provision of
shelters and economic opportunities and to ensure offender accountability through
adequate criminal laws and sanctions. The DRAFT law should clarify that rehabilitation
should be offered to victims and provided only at the victim’s request. It should never be
compulsory or imposed on victims by government agencies or officials.
Chapter II, Article 7, 7.0.2
This language should be omitted from the DRAFT law. Rather, the goal of any
government intervention in domestic violence cases should be to promote victim safety
and offender accountability and to communicate a message to the public of zero tolerance
for violence. The government should not attempt to “normalize” or “improve” relations
in the family by mediating or conciliating domestic violence cases. Research shows that
mediation is not effective in domestic violence cases and in fact can present danger to the
victim.15 A focus on normalizing relations of the family may prioritize family unity over
victim safety, minimizes offender accountability, and reflects an assumption that both
parties are equally at fault for violence.
Chapter II, Article 8, Obligations of corresponding executive power office processing
complaints on domestic violence cases of non-criminal pursuit character
This provision appears to provide administrative sanctions for acts of domestic violence
which are separate from criminal assault laws.16 The Advocates strongly recommends
that the DRAFT law clearly state that persons who commit domestic violence, including
those assaults that result in low-level injuries, should be subject to criminal liability, not
administrative sanctions. As stated above, it is very important that the DRAFT law
clarify that prosecutors and law enforcement officials are obligated to pursue all cases of
domestic violence, including assaults resulting in low-level injuries such as bruises,
scrapes, cuts, burns etc. It is important to ensure that crimes involving domestic violence
are not treated less seriously than other crimes. In fact, many jurisdictions increase
criminal penalties for repeated domestic violence offenses, even if they involve low-level
injury. For example, three or more convictions for assaults involving low-level injury
may become a felony with more severe sanctions. The DRAFT law should communicate
to the public zero tolerance for all violence.
Chapter II, Article 8, 8.1.1
Documentation of domestic violence through police reports and formal complaints
provides important evidence to protect domestic violence victims. Professionals who
routinely deal with domestic violence cases have developed a number of tools to assist in
this process that law enforcement in Azerbaijan may find useful.17 The DRAFT law
should make clear that law enforcement is obligated to thoroughly investigate all reports
of domestic violence including those resulting in low-level injuries.
The Republic of Azerbaijan should consider a probable cause arrest standard in its
domestic violence cases, which allows police to arrest and detain an offender if they
determine that there is probable cause that a crime has occurred.18 This should include
low-level assaults.
Chapter II, Article 8, 8.1.6
The Advocates recommends that the language of Article 8.1.6 be changed to grant police
the authority to order the violent offender out of the home. In addition, the DRAFT law
should specify that the victim should be transferred to a shelter or place of safety only
upon her request. Medical services should be provided to the victim if needed; however,
psychological, legal, social and other services should be provided to the victim only upon
her request.
The Model Code on Family and Domestic Violence outlines the duties of law
enforcement officers, including, inter alia:
a) Taking action necessary to provide for the safety of the victim or of any
household member;
b) Confiscating any weapon involved in the alleged domestic violence;
c) Transporting or obtaining transportation for the victim and any child to a
shelter or place of safety;
d) Assisting the victim in removing essential personal effects; and
e) Assisting the victim and any child in obtaining medical treatment, including
obtaining transportation to a medical facility.19
Other measures listed in Article 8.1.6, including “to take measures for his/her access to
education, job, acquiring new professional skills and social protection” are best left to
non-governmental advocates and organizations that have experience working with
victims. The state should provide funding for these services.
Chapter II, Article 8, 8.1.8
This language should be omitted from the DRAFT law. See comments above related to
Chapter II, Article 7, 7.0.2.
Chapter II, Article 8, 8.1.9
All language regarding warnings should be omitted from the DRAFT law. Government
officials should act immediately upon a report of domestic violence. A warning should
not be a prerequisite to filing for a protection order. Furthermore, it should not be
required as evidence for obtaining a protection order.
Chapter II, Article 8, 8.1.10
The Advocates recommends that the DRAFT law clearly state that persons who commit
domestic violence should be subject to criminal liability, not administrative liability.
Chapter II, Article 8, 8.1.11
Women who are victims of violence are most often the best judges of the dangers
presented to them by their violent partners. Therefore, it is not advisable to exclude them
from the decision to apply for orders of protection. This is particularly true since
research shows that one of the most dangerous times for many women is when they
separate from their abusers. It is very important for an adult victim of domestic violence
to make her own decision to leave a relationship because she is in the best position to
assess the potential danger. Applications on behalf of minor victims may be made by
adult family or household members.
For criminal cases, drafters should consider the inclusion of a domestic abuse no contact
order as discussed on page 4 of these comments.
Chapter II, Article 8, 8.14
The state should not seek to control non-governmental service providers that have
experience and expertise in domestic violence issues, but should provide funding and
general guidelines or standards for these service providers.
Chapter II, Article 8, 8.15
The Advocates commends the drafters for the addition of language that calls for
coordination in the response to domestic violence. Under the Coordinated Community
Response Model, when different members of the community coordinate their efforts to
protect battered women and hold batterers accountable, these efforts are more successful.
Coordination helps to ensure that the system works faster and better for victims, victims
are protected and receive the services they need, and batterers are held accountable and
cease their abusive behavior. A crucial first step toward coordinating responses is
developing a common understanding of domestic violence. Law enforcement agencies,
advocates, health care providers, child protection services, local businesses, the media,
employers and clergy can -- and ideally should -- be involved in a coordinated
community response.20
Chapter II, Article 9, 9.0 Decision on the results of the investigation on domestic violence
Again, The Advocates recommends that the DRAFT law make clear that all domestic
violence assaults, including those resulting in low-level injuries should be investigated
and pursued by law enforcement and state prosecutors. The law should also clearly
create a separate order for protection remedy available only upon the application of the
victim. This remedy should be available in addition to criminal sanctions for the violent
offender.
Chapter II, Article 9, 9.0.1
All language regarding warnings should be omitted from the DRAFT law. Government
officials should act immediately upon a report of domestic violence. A warning should
not be a prerequisite to filing for an order for protection. Furthermore, it should not be
required as evidence for obtaining an order for protection.
Chapter II, Article 9, 9.0.2
Courts should have the authority to issue protective orders based on the application of a
non-violent partner for themselves and on behalf of their child. Courts are best suited to
receive and review such applications, act on them immediately, and ensure that the
guarantees of notice and a hearing are carried out in a fair and impartial manner. This
immediate remedy of separation and protection, a limitation on visitation to the violent
parent, the use of supervised visitation, no visitation rights granted against the will of the
child,21 and the authority of the court to order temporary custody of the children to the
non-violent parent, should be clearly outlined in the law. Termination of parental rights
should be addressed in a separate law containing specifically tailored remedies for abused
children and procedural protections for parents based on the recommendations made
earlier in these comments.
Chapter II, Article 10 Warning on not repeating the domestic violence
All language regarding warnings should be omitted from the DRAFT law. Offering
offenders a “second chance” to comply with the law presents a significant risk of danger
to victims. See comments above related to Chapter II, Article 8, 8.1.9.
Chapter II, Article 11, 11.1 Rules of issuance of the Order of protection
The Advocates welcomes the creation of an “order of protection” in the DRAFT law. The
Advocates recommends that the drafters provide more detail to clarify the exact
obligations and authority of law enforcement and the courts in drafting the rules for
orders for protection. The courts alone should have the authority to issue protective
orders. Police involvement is best focused on enforcement of protective orders, and, in
criminal cases, arrests for crimes of violence including low-level misdemeanor assaults.
Courts are best suited to review applications for orders for protection, to make a
determination whether the violence occurred, and issue the order. The Advocates
recommends that the drafters provide for the creation of specialized courts or special
court proceedings guaranteeing timely and efficient handling of domestic violence
cases.22
All language regarding warnings should be omitted from the DRAFT law. Instead, legal
systems officials should act immediately upon a report of domestic violence to hold the
offender accountable and keep the victim safe. However, the victim alone should have
the right to ask the court to issue a civil order for protection. Women who are victims of
violence are most often the best judges of the dangers presented to them by their violent
partners. Therefore, they should not be excluded from the decision to apply for civil
order for protection measures.
The law should state that a statement by the petitioner, under oath, regarding the domestic
abuse, shall be sufficient to issue the order. The petitioner’s statement should describe
the specific facts and circumstances from which relief is sought. It should be made clear
in the DRAFT law that no further independent evidence, police reports, medical reports,
or otherwise, are necessary. This issue has proven to be problematic in other countries
when courts refused to issue protection measures based only on the petitioner’s
statement. Such court practices present a serious risk to victims.
The DRAFT law should explicitly provide for an emergency order for protection. Upon
receipt of an application for an emergency order, authorities should immediately issue
this order to preserve the safety of the victim and her children. The authorities should not
decline to issue these orders nor should they wait 24 hours to issue them. Then, upon
request of the respondent, a hearing may be promptly scheduled to review the application
and to make a determination whether the order should remain in effect. The safety of the
victim and her children should be the most urgent priority of the DRAFT law.
Again, this provision should clarify that law enforcement is responsible for enforcing the
order for protection.
Chapter II, Article 11, 11.2
Orders for protection should not be limited to 30 to 180 days. The DRAFT law should
clarify that their duration should be at least one year and in some cases involving
increased risk of danger to the victim, they should be left in place permanently, and only
terminated by a finding by the court based on clear evidence that there is no longer any
danger to the victim. The DRAFT law should clarify that termination of an order for
protection must be the responsibility of the courts.
Chapter II, Article 12, 12.1.4 The content of the Order for Protection
The authority of the court to include specific protection measures should be expanded.
The United States Model Law on Domestic Violence contains a list of suggested
protection measures, including, but not limited to enjoining the perpetrator from
threatening to commit or committing acts of domestic violence. The language in Article
12.1.4 should be amended to clearly indicate that the offender will be ordered to leave the
home, enabling the victim and her children to remain there safely, regardless of
ownership of the residence.
In addition to prohibiting the perpetrator from going near the residence, the law should
grant courts the authority to order the perpetrator to stay away from the place of
employment of the petitioner or any specified place frequented by the petitioner or any
member of the petitioner’s family or household. The DRAFT law should grant the court
authority to order possession and use of an automobile and other essential personal
effects, and direct law enforcement to accompany the petitioner to the residence of the
parties to ensure that the petitioner is safely restored to possession of the residence,
automobile and other personal effects. The DRAFT law should state that law
enforcement should supervise the petitioner’s or perpetrator’s removal of personal
belongings.23
The Advocates recommends the following new language be added to Article 12 of the
DRAFT law: “A person who is subject to a protective order or a court order that restrains
such person from harassing, stalking, or threatening an intimate partner of such person or
a child or family member of the intimate partner, or that restrains such person from
engaging in conduct that would place an intimate partner in reasonable fear of bodily
injury to the partner, child or family member, is forbidden to possess or to purchase any
firearm during the term of the court order. Said person’s firearms shall be surrendered
immediately to the police. The police shall notify the victim upon the return of the
firearms to the person at the end of the term of the court order.”24
Chapter II, Article 12, 12.2.1 and 12.2.2
The DRAFT law should state that the order for protection should require that temporary
custody of minor children should be granted to the non-violent partner, and the
authorization of financial support of the perpetrator in Article 12.2.2 should be expanded
to include rent, mortgage and maintenance of the petitioner and the children.
The DRAFT law should also state that the order for protection contain such other relief as
the court deems necessary to provide for the safety and welfare of the petitioner and any
designated family or household member.
The DRAFT law should clarify that violation of the order for protection is a crime in and
of itself, independent of any evidence of threats or violence. Sanctions and penalties for
such violations should increase upon repeated violations of protection measures.
Chapter III, Measurements Taken For Prevention of Domestic Violence, Article 13,
Measurement taken for prevention of domestic violence
In addition to the measures described in Article 13, the DRAFT law should contain a
requirement that the State provide funding to implement the measures in its annual
budget so that the measures to counteract domestic violence may in fact be implemented.
Specifically, the State should provide funding to non-governmental organizations that
provide services and shelters to victims of domestic violence. Experience has shown that
adequate and regular government funding, rather than reliance upon private grants or
donors, provides the most reliable shelters and counseling networks for victims. For
example, in drafting its law, the Republic of Armenia initially did not provide that the
government should fund shelters and other organizations providing services to domestic
violence victims, but later amended their draft law to include such funding.
The Advocates strongly recommends that the DRAFT law include the requirement that
the Republic of Azerbaijan monitor the implementation of the law once it is enacted. The
monitoring will likely expose unintended obstacles to effectively protecting victims 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 recommends that the DRAFT law include the creation of a specific,
multi-sectoral group to oversee the implementation of the legislation and to report back to
the parliament on a regular basis. The functions of this group could include information
gathering and analysis based on interviews with all key stakeholders, including victims,
advocates, police, prosecutors, judges, service providers, etc. regarding the victim’s
access to the legal system and the effectiveness of the remedies provided, and the
proposal of amendments to the legislation, if necessary. The drafters should include a
provision that mandates funding for such a multi-sectoral group.25
Chapter III, Article 14, 14.0.2 Legal measurements for prevention of domestic violence
The Advocates recommends that the DRAFT law clearly outline the criminal penalties
for all acts of domestic violence, including those involving low-level injuries, and the
responsibility of law enforcement and prosecutors to pursue investigation and conviction
in these crimes. In addition, the DRAFT law should outline a clear civil order for
protection remedy available upon the application of the victim. These remedies should
not be exclusive.
The Advocates recommends that the DRAFT law include a provision that requires that all
victims be promptly and adequately informed of their rights, the details of the relevant
legal proceedings, available services, support mechanisms and protective measures, and
the release of the perpetrator from pre-trial detention or from jail; and that the provision
requires that the prosecutor who discontinues a case of domestic violence explain to the
victim(s) why the case was dropped.26
The Advocates recommends that the DRAFT law include a requirement that the victims
have the right to free legal aid in all proceedings, especially criminal proceedings, in
order to ensure access to justice and avoid secondary victimization.
Chapter III, Article 14, 14.0.5
The Advocates recommends that this provision be expanded to require that the relevant
Minister(s), in collaboration with police, prosecutors, judges, the health sector and the
education sector, develop regulations, protocols, guidelines, instructions, directives and
standards, including standardized forms, for the comprehensive and timely
implementation of the legislation, and that the drafters provide that such regulations,
protocols, guidelines and standards be developed within a limited number of months
following the entry into force of the legislation.
Chapter III, Article 14, 14.0.6
All language regarding warnings should be omitted from the DRAFT law. Instead, legal
systems officials should act immediately upon a report of domestic violence to hold the
offender accountable and keep the victim safe. See comments above related to Chapter
II, Article 8, 8.1.9.
Chapter III, Article 14, 14.0.7
As stated above, the DRAFT law should provide for the immediate remedy of an order
for protection, with a limitation on visitation to the violent parent, the use of supervised
visitation, and the authority of the court to order temporary custody of the children to the
non-violent parent. A termination of parental rights should be addressed in a separate
law containing specifically tailored remedies for neglected or abused children and
procedural protections for parents.27
Chapter III, Article 14, 14.0.8
The collection of data on domestic violence is an important component of the
government’s efforts to diligently address domestic violence. The Advocates
recommends that the Republic of Azerbaijan monitor the implementation of this
provision of the DRAFT law closely. Statistics about the duration of the orders for
protection, the number of orders for protection granted, denied, cancelled, changed either
in content or in form (i.e. from an emergency order for protection to a permanent order
for protection), and appealed should be kept and made available publicly. In addition,
qualitative data about the effectiveness of the orders for protection should be gathered on
a regular basis from police, courts, relevant government ministries, counseling centers
and shelters, and from victims themselves. This data should be compiled by the relevant
government ministry and published on an annual basis.
All statistical data should be disaggregated by sex, gender, race, age, ethnicity and other
relevant characteristics.28
Chapter III, Article 14, 14.0.10
The DRAFT law should provide that accreditation standards for help centers should be
developed in consultation with NGOs and advocates working directly with domestic
violence victims. These help centers should be directed by advocates or other non-profit
service agencies that work directly with victims and can best represent their interests. The
government should provide funding and support to these groups.
Chapter III, Article 15, 15.3 Ensuring confidentiality of information when the victims are
provided with help
The confidentiality provisions outlined in this section are very important. The DRAFT
law should prohibit the disclosure of information about specific cases of domestic
violence to government agencies without the fully informed consent of the victim, who
has had the opportunity to receive advice from an advocate, unless the information is
devoid of identifying markers. Non-governmental organizations should only submit
information about the victims they serve in a summary and aggregated form to
government agencies.29
Chapter III, Article 16, Collecting information on domestic violence
See comments above related to Chapter III, Article 14, 14.0.8.
Chapter III, Article 17, 17.05 Social measurements for prevention of domestic violence
The Advocates welcomes the language of Article 17, which provides practical assistance
to aggrieved persons so that they may become self-sufficient and contributing members
of Azerbaijan society. Establishing the mechanisms in this Article and in Article 18
helps to make the Azerbaijan Republic’s commitment to protecting aggrieved persons a
reality. However, The Advocates recommends that references to the psychological
rehabilitation of the victim be deleted. See comments above related to Chapter II, Article
7, 7.0.1.
Chapter III, Article 17, 17.0.6
The services and assistance for domestic violence victims outlined in this section are
important provisions of the DRAFT law. If possible, the legislation should provide for
one shelter/aid center for every 10,000 inhabitants, one women’s help center for every
50,000 women, and one rape crisis center for every 200,000 women. The Advocates also
recommends that the drafters include a provision calling for the funding of a national
women’s hotline where all victims of violence may get around-the-clock assistance, free
of cost, and where they may be referred to shelters and aid centers.30
Chapter III, Article 18, 18.1 Help centers
Again, the services and assistance programs outlined in this section are very important
provisions of the DRAFT law. However, non-governmental agencies with experience
and expertise in domestic violence should provide these services with the support of state
funding.
Chapter III, Article 18, 18.2.3
The Advocates recommends that references to the rehabilitation of the victim be deleted.
See comments above related to Chapter II, Article 7, 7.0.1.
Chapter III, Article 18, 18.2.7
All language regarding warnings should be omitted from the DRAFT law. See comments
above related to Chapter II, Article 8, 8.1.9.
Chapter III, Article 18, 18.3
The DRAFT law should not limit the time period in which a victim may be provided with
shelter.
Chapter III, Article 19, Warning measures on domestic violence
This Article should be titled “Public education on domestic violence.” The DRAFT law
should provide that public education be done in consultation and in coordination with
non-governmental organizations working with victims of domestic violence. The
Advocates recommends that provisions be added to Article 19 on the use of educational
curricula to modify discriminatory social and cultural patterns of behavior and gender
stereotypes, and to sensitize the media regarding violence against women.31
Chapter III, Article 19, 19.2.6 and Article 19.3
The Advocates strongly recommends that the following language be deleted from the
DRAFT law: “Implementing control over the families in which domestic violence has
happened, as well as defining families where it is supposed that domestic violence is
likely to happen and implementing control over such families.” This terminology
stigmatizes the victim of domestic violence and the children. The DRAFT law should
focus on providing the order for protection remedy for victims and on revising criminal
law and procedure to more effectively hold violent offenders accountable for domestic
violence crimes.
Chapter III, Article 20, Financing the activities for prevention of domestic violence
The Advocates welcomes the financing of the measures to protect victims, hold offenders
accountable, and generally address domestic violence. The Government of Azerbaijan
should provide funding in its annual budget so that the actions by ministerial, state and
local bodies under this Law may in fact be implemented. Funds should be directed both
to government and non-governmental bodies. Experience has shown that adequate and
regular government funding, rather than reliance upon local budgets or private grants or
donors, provides the most reliable shelters and counseling networks for victims.
The Advocates recommends that the DRAFT law include a mandate for the Government
to provide funding for the creation of a specialized prosecutor’s office and for the
designation or strengthening of specialized police units, and provide adequate funding for
their work and specialized training of their staff in order to implement the DRAFT law.32
The Advocates recommends that the DRAFT law include a mandate for the Government
to provide funding for specific training and capacity-building for relevant public officials
and law enforcement officials, to ensure that they are aware of and competent to enforce
their new duties, and that such training and capacity-building be developed and carried
out in close consultation with non-governmental organizations and service providers for
victims of violence against women.33
Chapter IV Final Provisions, Article 21, 21.1 Responsibility for violation of the Law
The Advocates recommends that the DRAFT law include a mandate that all relevant
government bodies bear responsibility for the effective enforcement and implementation
of the DRAFT law as is required by international and national law. If a current national
action plan or strategy on domestic violence does not already exist, The Advocates
recommends that the drafters mandate the formulation of such a plan, which should
contain a set of activities with benchmarks and indicators, to ensure that a framework
exists for a comprehensive and coordinated approach to the implementation of this
legislation. If a current national plan or strategy exists, The Advocates recommends that
the drafters reference the plan as the framework for the comprehensive and coordinated
implementation of the legislation.34
Chapter IV, Article 21, 21.2
Forced and early marriages should be addressed separately in the criminal or family law
of Azerbaijan.35
1 See International Covenant on Civil and Political Rights (ICCPR), Arts. 2 and 3 (1976) available at
http://www1.umn.edu/humanrts/instree/b3ccpr.htm (last visited October 10, 2008); see also Convention on
the Elimination of All Forms of Discrimination against Women (CEDAW), Art. 2 (1981) available at
http://www1.umn.edu/humanrts/instree/e1cedaw.htm (last visited October 10, 2008); see also General
Recommendation 19 (11th session, 1992), Art. 16(24) available at
http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm (last visited October 10,
2008).
2 One such example of monitoring occurred after Bulgaria enacted a law on protection against domestic
violence in 2005. The Bulgarian Gender Research Foundation and The Advocates for Human Rights
published a report monitoring the implementation of the law in 2008. The report revealed progress as well
as areas of needed improvement, such as a criminal penalty for violating an order for protection.
IMPLEMENTATION OF THE BULGARIAN LAW ON PROTECTION AGAINST DOMESTIC VIOLENCE (2008)
available at http://www.mnadvocates.org/sites/608a3887-dd53-4796-8904-
997a0131ca54/uploads/FINAL_REPORT_2.pdf
3 Available at
http://www.un.org/womenwatch/daw/egm/vaw_legislation_2008/Report%20EGMGPLVAW%20(final%201
1.11.08).pdf (last visited March 27, 2009).
4 Available at www.coe.int/t/pace/campaign/stopviolence/Source/rec2002(5)_en.doc (last visited March 27,
2009).
5 Available at http://www.ncjfcj.org/images/stories/dept/fvd/pdf/modecode_fin_printable.pdf (last visited
March 27, 2009).
6 Available at http://www.stopvaw.org/Sample_National_Family_Violence_Laws.html (last visited March
27, 2009).
7 Minn. Stat.§ 519B.01 (2008) available at https://www.revisor.leg.state.mn.us/statutes/?id=518B.01 (last
visited March 27, 2009).
8 The term “best interest factors” generally means relevant factors which a judge will take into
consideration when making a custody determination.
9 See Minnesota Statute Section 609.2242 (2008) available at
https://www.revisor.leg.state.mn.us/statutes/?id=609.2242
10 See Minnesota Statute Section 518B.01, subd. 2(1)(3) available at
https://www.revisor.leg.state.mn.us/statutes/?id=518B.01
11 See “Family Violence: A Model State Code”, at
http://www.ncjfcj.org/images/stories/dept/fvd/pdf/modecode_fin_printable.pdf
and the 2008 United Nations expert group report entitled “Good practices in legislation on violence against women,” at
http://www.un.org/womenwatch/daw/egm/vaw_legislation_2008/Report%20EGMGPLVAW%20(final%2011.11.08).p
df.
12 See “Good practices in legislation on violence against women,” page 28.
13 See Minnesota’s criminal sexual conduct and related statutes available at
https://www.revisor.leg.state.mn.us/statutes/?topic=166535
14 See “Good practices in legislation on violence against women,” page 28.
15 See “Mediation” available at http://www.stopvaw.org/Mediation.html
16 Acts of domestic violence, including violations of orders for protection, should be criminal, not
administrative, offenses. Criminal penalties should become more severe with each violation. See COE
Recommendations, Appendix to Rec(2002)5, 55.
17 One such tool is the Duluth Pocket Card developed by the Duluth Police available at
http://www.stopvaw.org/sites/3f6d15f4-c12d-4515-8544-
26b7a3a5a41e/uploads/Duluth_Police_Pocket_Card.doc
18 See Minnesota Statute Section 518B.01, subd. 14(d)(2)(e) (2008) available at
https://www.revisor.leg.state.mn.us/statutes/?id=518B.01
19 See Model State Code, Section 204, page 4.
20 See “Coordinated Community Response” available at
http://www.stopvaw.org/Coordinated_Community_Response.html.
21 See “Good practices in legislation on violence against women,” page 56.
22 See “Good practices in legislation on violence against women,” page 21.
23 See Model State Code, Sections 305 - 306, pages 26 - 27.
24 See Minnesota Statute Section 518B.01, subdivisions (k),(l),and (m) available at
https://www.revisor.leg.state.mn.us/statutes/?id=518B.01
25 See “Good practices in legislation on violence against women,” page 22-23.
26 See “Good practices in legislation on violence against women,” page 40-41
27 See Minnesota Statute Section 260C.301 available at
https://www.revisor.leg.state.mn.us/statutes/?id=260C.301
28 See “Good practices in legislation on violence against women,” page 24.
29 See “The Importance of Confidentiality Between Domestic Violence Advocates and Domestic Violence
Victims” available at
http://www.stopvaw.org/Expert_s_Corner.html#The_Importance_of_Confidentiality_Between_Domestic_
Violence_Advocates_and_Domestic_Violence_Victims
30 See “Good practices in legislation on violence against women,” page 34
31 See “Good practices in legislation on violence against women,” page 32-33.
32 See “Good practices in legislation on violence against women,” page 20-21.
33 See “Good practices in legislation on violence against women,” page 19.
34 See “Good practices in legislation on violence against women,” page 17.
35 See “Good practices in legislation on violence against women,” page 51. It should be noted that forced
marriage was recently recognized as a “crime against humanity” under international law for the first time in
history by the Special Court for Sierra Leone punishable at any time under the principles of universal
jurisdiction. See “Special Court Prosecutor Hails RUF Convictions,” Press Release by the Special Court
for Sierra Leone Office of the Prosecutor, 25 February 2009 available at http://www.scsl.
org/LinkClick.aspx?fileticket=dupqs76CgyU%3d&tabid=196
Comments by The Advocates for Human Rights on the DRAFT Law of the Republic of Tajikistan, "On Protection from Family Violence," November 18, 2008
The Advocates for Human Rights has reviewed the DRAFT Law of the Republic of
Tajikistan, “On Protection from Family Violence,” which also contains amendments to
the Administrative and Civil Practice Codes. The Advocates congratulates the Republic
of Tajikistan for having the foresight to plan to amend the relevant Administrative and
Civil Practice Codes of the Republic of Tajikistan to bring them into compliance with the
(not yet enacted) law of the Republic of Tajikistan “On Protection from Family
Violence,” (hereinafter, ”the DRAFT Law”). As the drafters have recognized, a new
domestic violence law interacts with civil law and procedure, and administrative law and
procedure.
The Advocates congratulates the Republic of Tajikistan for undertaking the difficult, but
vital, process of drafting this legislation to protect its citizens from domestic or family
violence. The Republic of Tajikistan takes one step toward fulfilling its positive
obligations under the international treaties and conventions it has ratified. These
obligations include guaranteeing an individual’s right to be free from violence, and a
state’s responsibility to not only protect individuals from violations of the rights in
international law by government entities, but also against acts of violence committed by
private entities.1
The DRAFT Law also begins to address the concerns expressed by the U.N. Special
Rapporteur on Violence against Women visited Tajikistan in May 2008. During the visit,
the Special Rapporteur stated that:
Family preservation is a highly upheld value that often has primacy over
the interests of individual women. Unless serious injuries occur, family
violence is by and large accepted as a normal aspect of private life by men
and women alike and not acknowledged as a problem warranting public
intervention. As a result, women must endure systematic abuse and
humiliation in silence.2
The Advocates recommends that the Republic of Tajikistan continue to revise and
strengthen the DRAFT Law to ensure that each provision of the law embodies the
principle that women have the right to be free from violence, and to have a remedy for
domestic violence and the threat of domestic violence so that they no longer have to
endure such violence in silence. The government of the Republic of Tajikistan can play
an important role in changing societal attitudes that blame women for domestic violence.
The Advocates strongly recommends that the Republic of Tajikistan monitor the
implementation of the law once it is enacted. The monitoring will likely expose
unintended obstacles to effectively protecting victims 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.
Review of Model Legislation
In the process of revising and strengthening the law, The Advocates recommend that the
drafters revisit the following important models for legislation on domestic violence:
• The U.N. Framework for Model Legislation on Domestic Violence
(1996)(hereinafter “U.N. Framework”)3
• The Protection of Women against Violence (2002), Recommendations,
Rec(2002)5(hereinafter “COE Recommendations”)4
• Family Violence: A Model State Code (1994) (hereinafter “Model State Code)”5
• Sample National Domestic Violence Laws on StopVAW (Includes Albania and
Bulgaria)6
• Minnesota Domestic Abuse Act (2007)7
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.
With regard to the provisions on children in the DRAFT Law “On Protection from
Family Violence,” the authors of the DRAFT Law 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. The
Republic of Tajikistan 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 family violence as a relevant factor
in considering the “best interests” of the child.8
• Create a rebuttable presumption against custody to the batterer.
• Provide representation for children in child custody and visitation/parenting time
cases ensuring that representatives are well-trained on the dynamics of family
violence.
• Allow courts in granting CPOs to at least temporarily order child custody and
support to the non-violent parent, and allow courts to enter a CPO as to the child.9
• 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.
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
measure, including those measures of “social-legal protection” reflected in Tajikistan’s
DRAFT Law, should 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 “family abuse no contact order,” which is different than an “order for protection.” The
family 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 “family 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 family 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.
Minimally Recommended Elements for the Republic of Tajikistan DRAFT Law
“On Protection from Family Violence”
The Advocates for Human Rights acknowledges that the current DRAFT Law has both
“temporary instruction” and a “judicial protective warning,” which begin to meet the
minimally recommended elements of domestic or family violence laws. Those minimally
recommended elements are:
• A fully developed emergency order for protection (temporary instruction);
• A fully developed order for protection civil remedy (judicial protective warning);
• A criminal offense for violation of the order for protection (temporary instruction
or judicial protective warning) in the family law with a cross-reference to any
relevant provisions of the criminal laws such as punishment for various level of
offenses;
• Providing enhanced penalties for multiple violations of the order for protection;
and
• Providing enhanced penalties for other criminal offenses committed against those
who fall within the meaning of Chapter 1, Article 2 of the DRAFT Law.
Specific Comments on Existing Elements in the Republic of Tajikistan DRAFT Law
“On Protection from Family Violence”
The Advocates for Human Rights offers the following specific comments to improve the
effectiveness of both the Law and the Amendments.
Chapter 1 General Provisions, Article 2, Main Notions Used in This Law, Paragraph 1)
family, Paragraph 3) sexual family violence and Paragraph 4) physical family violence
To better protect more victims of family violence, the Law should also apply to persons
involved in a significant romantic or sexual relationship or who have formerly been
involved in a significant romantic or sexual relationship. Many situations of family
abuse involve people in such relationships. Persons in dating or former intimate
relationships should be included in all definitions of persons covered by the law in
Articles 2 and 3.10
The Advocates recommends that the phrase “suppression of sexual needs” in Paragraph
3) sexual family violence be omitted. Such a claim could be used by a perpetrator as a
retributive counterclaim.
In Paragraph 4) family violence, The Advocates recommends that the phrase “as well as
causing damage to his/her honor and dignity” be omitted, as it is not an actual example of
physical violence and it may be used against a victim by a perpetrator.
Chapter 1 General Provisions, Article 2, Main Notions Used in This Law, Paragraph 5)
Mental family violence and Paragraph 6) Economic family violence
The concept of family violence should focus on physical harm or the threat of physical
harm.11 Claims of mental violence are open to manipulation and to retributive
counterclaims by violent perpetrators. For example, a perpetrator may claim that
physical violence is an appropriate response to an act of psychological harm. Or, an
angry or disgruntled violent abuser may seek protection against his wife for alleged
damage of an economic nature. The priority of courts and militia should be to protect the
safety of victims and their children. The Republic of Tajikistan 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 language “family with unfavorable condition,” “dependant family member,”
“material dependency of the family member,” “physical dependency of the family
member,” “other dependency of the family member,” and “difficult life situation” should
be omitted from the DRAFT Law. This terminology stigmatizes the victim of family
violence and children. This terminology may reinforce the finding of the U.N. Special
Rapporteur that “as a result of strong patriarchal values prevailing in both the public and
private spheres of life, women in general are expected to be obedient to their husbands
and his family and often get blamed for having provoked disciplinary measures.”12
The Advocates recognizes the definitions of the “judicial protective warning” and
“temporary instruction” as an effort to create remedies in the DRAFT Law for “victims of
family violence.” However, The Advocates expresses concern that the words “warning”
and “instruction,” in particular will not result in clear accountability for violent offenders.
For example, the word “warning” implies that there are not concrete sanctions for an act
of abuse, and authorities may give an offender another opportunity for an assault. The
drafters should consider using appropriately strong language for these important remedies
that reflects the seriousness of the issue. In Minnesota, the law refers to an “emergency
order for protection” and “order for protection.”
Chapter 1, Article 3 Scope of Action of this Law
The Advocates welcomes the protection of citizens, foreign citizens, and persons without
citizenship. Such protection of citizens and non-citizens alike is consistent with the U.N.
Model Framework and COE Recommendations.13
Chapter 3, Bodies and Organizations that Provide Social-Legal Protection From Family
Violence and Their Authorities, Article 9 Authorities of the Court
The Advocates welcomes the decision to provide the courts with the authority to issue the
measures of “social-legal protection.” Courts are best suited to receive and review such
applications and act on them immediately.
Chapter 3, Article 10, Authorities of Prosecutor Offices
The Advocates expresses two concerns about the authority given to prosecutor’s offices
in the DRAFT Law. First, there should be a clear distinction between the civil and
administrative “social-legal protection” measures and criminal charges for acts of family
violence. The “victim of family violence” should be provided with the ability to apply
for these civil and administrative measures without requesting that the prosecutor file
criminal charges. The application for “temporary instruction” or a “judicial protective
warning” should remain the victim’s choice independently of prosecutor intervention.
The Republic of Tajikistan should review and amend its criminal code to ensure that the
violation of an order for “temporary instruction,” the violation of the “judicial protective
warning,” and the act of family violence itself are criminal offenses, with appropriate
fines and sentences.14
Chapter 3, Article 11, Authorities of Internal Affairs Bodies
The Advocates expresses concern about the authority given to the internal affairs bodies,
particularly as it relates to the following language: “determining causes and conditions,”
“taking measures to suppress family violence,” and engage in “preventive work with
families with unfavorable conditions.”
Internal affairs bodies, or police, should focus on identifying the violent offender, holding
the offender accountable for the violence, and ensuring the victim’s safety. In both
Bulgaria and Georgia, the Ministries of the Interior found that police activities aimed at
identifying causes of domestic violence and the implementation of preventive measures
to be difficult. They are now seeking amendments to their law that provide for more
focus by police on enforcement and holding the offender accountable. The Advocates
expresses concern that the language of Article 11 places a responsibility on 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).
Article 11 should specifically state that the internal affairs bodies may remove the
batterer from the home in order to protect the victim.15 Article 11 should specifically state
that the transportation of a victim to a shelter or specialized institution for medical-social
rehabilitation of the victim should occur only at the request of the victim.
The Republic of Tajikistan should review its child custody and visitation, child support,
and child abuse and neglect laws. In particular, it is important that custody of children is
at least initially given to the non-violent parent until a court may hold a hearing to
determine long-term or permanent custody arrangements.
Chapter 3, Article 13, Authorities of Crisis Centers, Paragraph 2)
The Advocates expresses concern that crisis centers provide confidentiality to victims of
family violence and their children.16 Under no circumstances should information be
delivered to internal affairs bodies or any other party about specific cases of family
violence without the fully informed consent of the victim, who has had the opportunity to
receive advice from an advocate.
Chapter 3, Article 14, Authorities of Centers for Medical-Social Rehabilitation of
Victims of Family Violence
The Advocates expresses concern that centers for medical-social rehabilitation provide
confidentiality to victims of family violence and their children.17 Under no
circumstances should information be delivered to internal affairs bodies or lawenforcement
bodies or any other party about specific cases of family violence without the
fully informed consent of the victim, who has had the opportunity to receive advice from
an advocate. In paragraphs 3 and 4, victims should be placed in or provided with
rehabilitation services only upon the victims’ request.
Chapter 3, Article 15, Authorities of Other Objects and Citizens on Social-Legal
Protection from Family Violence,
In Paragraph 1) The Advocates recommend that the word “preventing” be changed to
“responding to.”
Under no circumstances should information be delivered to internal affairs bodies or law enforcement
bodies or any other party about specific cases of family violence without the
fully informed consent of the victim, who has had the opportunity to receive advice from
an advocate.
Chapter 4, Article 16, Social-Legal Protection from Family Violence
The Advocates expresses the same concern about the language “difficult life situations in
the family” as it did about this language in Article 2. Also, The Advocates recommends
that the words “with development of measures on behavior improvement” be omitted
from Paragraph 1) of Article 16, because it could be interpreted as an attempt to measure
the behavior of the victim. A victim’s behavior should never be the focus of the
government.
Chapter 4, Article 17, Grounds for Providing Social-Legal Protection from Family
Violence
The Advocates expresses concern that the language of this article undermines the
victim’s control over whether to apply for “social-legal protection.” When the victim
applies for the “temporary instruction,” with a “direct threat to life and health” there
should be no need for confirmation by internal affairs or other specialized institution.
Rather, the victim’s statement of a “direct threat,” or “immediate and present danger of
family abuse” should be sufficient evidence for the internal affairs body or court to issue
the “temporary instruction.”
In the case of the “judicial protective warning,” the individual petitioning for the order
must allege the existence of family violence and include an affidavit made under oath
stating these facts.
Chapter 4, Article 18, Sending the Victim of Family Violence to and Providing
Services….
The Advocates expresses concern about Article 18. The Advocates recommends that
psychological, legal, social, housing, and other services offered to adult victims of family
violence should be provided only upon their request, with the exception of medical
services, which should be provided if needed. No government officials should be
authorized to send victims to service institutions. These services should be available to
victims when they determine they need them.
The Advocates expresses concern about the language providing that a child may be
removed from the residence and placed in temporary shelter. While the drafters most
likely intended to protect children from family violence, such a provision will likely
dissuade the non-violent parent from seeking protection because the parent fears losing
even temporary care of his/her children. The drafters should ensure that family violence
victims are not further victimized by the removal of their children from their custody.
The Advocates recommends that this article be changed to specify that children 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.
Chapter 4, Article 19, Prevention of Family Violence
The Advocates expresses the same concern about Article 19 as Article 2. The words
“difficult life situation” should be omitted from the DRAFT Law. This terminology
stigmatizes the victim of family violence and children and further perpetuates the attitude
that women are to blame for the problem because of a dependent relationship to men.
The DRAFT law should focus on removing violent offenders from the home to protect
the safety of the victim and her children.
Article 19 authorizes numerous ways to study the behavior of the victim and her family.
For example, social service agencies are authorized to research the “life conditions” of
the victim, and to “study the reasons for the difficult life situation associated with the
violence committed in that family.” The DRAFT law should focus on the unlawful
behavior of the perpetrator.
Chapter 4, Article 20, Suppression of Family Violence
The Advocates expresses the same concern about Article 20 as Articles 2 and 19. The
words “difficult life situation” should be omitted from the DRAFT Law.
The Advocates expresses the same concern about Article 20 as Article 18 regarding the
language providing that a child may be removed from the residence and placed in
temporary shelter. The Advocates recommends that this article be changed to specify
that children should be placed in the custody of the non-violent parent.
Like our comments on Article 18, The Advocates recommends that psychological, legal,
social, housing, and other services offered to adult victims of family violence should be
provided only upon their request, with the exception of medical services, which should be
provided if needed.
The Advocates recommends that the drafters carefully consider the suggestions on page
three of these comments regarding model provisions related to child custody, visitation,
child support, child abuse and neglect as they relate to the responsibilities of the
guardianship and trusteeship body. Protecting children from family violence should be a
priority and should be balanced with ensuring that non-violent parents are not further
victimized by having their children removed from their custody.
Chapter 4, Article 21, The Procedure for Providing Information on Family Violence
The Advocates expresses concern that Article 21 undermines the safety of victims of
family violence and conflict with the confidentiality protections in Article 22. Law
enforcement should be empowered to take immediate action to respond to reports of
family violence. However, once law enforcement responds and the victim is safe,
government and non-governmental bodies should prioritize and ensure the confidentiality
of victims of family violence. Under no circumstances should information be delivered
to government agencies or officials or any other party about specific cases of family
violence without the fully informed consent of the victim, who has had the opportunity to
receive advice from an advocate.
Chapter 4, Article 22, Confidentiality of Information when Rendering Social-Legal
Protection from Family Violence
The Advocates welcomes the confidentiality provisions of the DRAFT Law. These
provisions provide significant protection to victims of family violence.
Chapter 5, Article 23, Types of Special Means of Protection from Family Violence
The Advocates recognizes the definitions of the “judicial protective warning” and
“temporary instruction” as an effort to create remedies in the DRAFT Law for “victims of
family violence.” However, The Advocates expresses concern that the words “warning”
and “instruction,” in particular will send an unintended message that family violence or
the threat of family violence will only generate a “slap on the wrist,” and a fragile safety
net for the victim of family violence. The drafters should consider using appropriately
strong language for these important remedies that reflects the seriousness with which the
Republic of Tajikistan intends to treat family violence. For example, in Armenia, the
words used are “emergency intervention order” and “protection order.” In Minnesota, the
words used are “emergency order for protection” and “order for protection.”
These comments apply to the remaining articles of the DRAFT Law, but will not be
repeated.
Chapter 5, Article 24, Temporary Instruction
The Advocates welcomes the language providing that a victim of family violence has a
“right to apply.” Applications for special means of protection should remain in the
control of the victims.
The Advocates recommends that the drafters consider language that states the “temporary
instruction” should remain in effect unless and until the perpetrator or respondent
requests a hearing. It should not be limited to 15 days. The Advocates also recommends
that the courts also have the authority to issue “temporary instruction” upon application
by victims.
In paragraph six, the temporary instruction should be completed and issued by the official
of the internal affairs bodies within 24 hours from the moment when the application for
temporary instruction was submitted. The other timing option, “starting from the
moment of commitment of family violence,” should be omitted, because victims may
take hours or days before they are able to go to the police, and having such a deadline in
the law may be confusing to police and not conducive to the safety of the victim.
Chapter 5, Article 25, Measures Stipulated by Temporary Instruction
The Advocates welcomes the “temporary instruction” measure as an important
mechanism to protect family violence victims. The Advocates recommends that the
drafters strengthen the language of this Article as follows.
First, the failure of an offender to adhere to the temporary instruction should be a
criminal offense and not an administrative responsibility.18 Second, a provision granting
official authority to order the violent offender out of the home should be clearly stated in
the temporary instruction provision.19 In some countries, police have found that the lack
of authority to remove the violent offender from the home proved problematic to their
implementation of the law. This led them to seek amendments to allow them to remove
the violent offender from the home.
Third, the offender should also be prohibited from going near the workplace of the victim
and the schools of the children. Fourth, the offender should be prohibited from obtaining
or possessing firearms. Offenders should be required to turn over their weapons to the
police. Last, an additional measure should be included which will allow the court to
order support from the abuser for the victim and children during the term of the order.
Chapter 5, Article 26, Judicial Protective Warning
The Advocates welcomes the “judicial protective warning” measure as an important
mechanism to protect family violence victims. The Advocates recommends that the
drafters strengthen the language of this Article. Two specific recommendations will be
made here, and additional recommendations will be made in the comments to Article 28.
First, the judicial protective warning should remain in effect permanently, not limited to 1
to 6 months, unless the offender or respondent requests a hearing to modify the judicial
protective warning. Second, a violation of the judicial protective warning should be a
criminal, not administrative, offense and if the abuser violates the restrictions, the
criminal penalties should become more severe with each violation.20
Chapter 5, Article 27, The Procedure for Issuing a Judicial Protective Warning
The Advocates expresses concern that the language “unfair and unjustified pretensions of
the person who suffered from family violence…shall give the court the right to claim
reimbursement of legal costs” in Article 27 will deter victims from applying for a judicial
protective warning as needed. There should not be any penalties imposed for seeking a
“judicial protective warning” or “temporary instruction.”
Chapter 5, Article 28, Measures Stipulated by Judicial Protective Warning
The Advocates welcomes the “judicial protective warning” as an important mechanism to
protect family violence victims. The drafters have included many of the key measures to
ensure victim safety and promote offender accountability.
The Advocates recommends that the drafters provide for an additional measure which
will allow the court to order financial support from the abuser for the victim and children
during the term of the protective warning.
Chapter 5, Article 29, Clarification…of His/Her Rights
The Advocates welcomes the clarification of the civil process of applying for “temporary
instruction” or the “judicial protective warning,” and how the civil process relates to the
separate and distinct rights to apply for dissolution of marriage, to the criminal process of
filing charges, and to an application for permanent protection using the “judicial
protective warning.” These separate and distinct rights serve to best protect the victim
and the victim’s children. It is critical to provide that application for any of the remedies
is not mutually exclusive. For example, a prosecutor may pursue a criminal case of
domestic violence at the same time that a victim applies for a “judicial protective
warning.”
The drafters should consider language providing for a “domestic abuse no contact order”
in criminal cases, which is different than “temporary instruction” or a “judicial protective
warning.” The “domestic abuse no contact order” remains in effect until the criminal
case is concluded without regard to whether a civil protective order is in effect.
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. 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 6, Liability for Committing Family Violence, Article 30, Liability for
Committing Family Violence
The Advocates recommends that the DRAFT Law clearly state that persons who commit
family violence should be subject to criminal liability, not administrative liability. The
Law should communicate a zero tolerance for all violence to the public.
Chapter 6, Liability for Committing Family Violence, Article 31, Liability of the Person
Who Committed Family Violence to Pass the Psychological Correction Course
The Advocates expresses concern that requiring a perpetrator to “pass a psychological
correction course” will send an unintended message that a perpetrator has been “cured”
of committing family violence by completing the course. Many perpetrators complete
batterer intervention programs and go on to commit domestic violence again. This
provision may undermine victim safety if the victim, government bodies or nongovernmental
bodies believe that a perpetrator will no longer commit domestic violence
upon passing the psychological correction course. In addition, a “psychological
correction course” should be only one part of the legal and community response to
domestic abuse. It is important that victim safety and offender accountability remain the
primary goals of all aspects of the legal and community response, and the goals of
education and rehabilitation of the batterer should be secondary. In a recent study, the
Council of Europe agreed that “…the extent of behavioural change brought about by such
programmes is modest. At best they control and reduce the danger of physical violence,
but rarely eliminate the pattern of dominance behind it.”21 Additionally, attendance at a
perpetrator program has proven difficult to enforce. It is best to dedicate and prioritize
scarce resources to services for victims over services for perpetrators.
Chapter 7. Financing of Bodies and Organizations Providing Social-Legal Protection
from Family Violence, Article 32, Sources of Financing
The Advocates welcomes the financing of the measures to protect victims, hold offenders
accountable, and generally address family violence. The Government of Tajikistan must
provide funding in its annual budget so that the actions by ministerial, state and local
bodies under this Law may in fact be implemented. Funds should be directed both to
government and non-governmental bodies. Experience has shown that adequate and
regular government funding, rather than reliance upon local budgets or private grants or
donors, provides the most reliable shelters and counseling networks for victims. If
organizations that provide special help to victims must obtain their funding from the
victim’s family, this will deter the victim from seeking aid from these organizations. The
Advocates recommends that the language of this article regarding “reimbursement
…from family members who committed such violence” be omitted.
Chapter 8, Article 33, Statistical Accounting
The Advocates welcomes the provision for data on family violence. The collection of
such data is an important component of the government’s efforts to diligently address
family violence. The Advocates recommends that the Republic of Tajikistan monitor the
implementation of this provision of the DRAFT Law closely. Statistics about the
duration of the judicial protective warnings, the number of judicial protective warnings
granted, denied, cancelled, changed either in content or in form (i.e. from a temporary
instruction to a judicial protective warning), and appealed should be kept and made
available publicly. In addition, qualitative data about the effectiveness of the judicial
protective warnings should be gathered on a regular basis from police, courts, relevant
government ministries, counseling centers and shelters, and from victims themselves.
This data should be compiled by the relevant government ministry and published on an
annual basis.
Chapter 8, Article 34, Control over Observance of the Law
The Advocates recommends that the drafters ensure that all relevant government bodies
bear responsibility for the effective enforcement and implementation of the DRAFT Law
as is required by international and national law.
1 See International Covenant on Civil and Political Rights (ICCPR), Arts. 2 and 3 (1976) available at
http://www1.umn.edu/humanrts/instree/b3ccpr.htm (last visited October 10, 2008); see also Convention on
the Elimination of All Forms of Discrimination against Women (CEDAW), Art. 2 (1981) available at
http://www1.umn.edu/humanrts/instree/e1cedaw.htm (last visited October 10, 2008); see also General
Recommendation 19 (11th session, 1992), Art. 16(24) available at
http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm (last visited October 10,
2008).
2 See Statement of the Special Rapporteur on Violence against Women, StopVAW available at
http://www.stopvaw.org/Statement_of_Special_Rapporteur_on_Violence_Against_Women.html (last
visited October 10, 2008).
3 Available at
http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/0a7aa1c3f8de6f9a802566d700530914?Opendocument
(last visited October 10, 2008).
4 Available at www.coe.int/t/pace/campaign/stopviolence/Source/rec2002(5)_en.doc (last visited October
10, 2008).
5 Available at http://www.ncjfcj.org/images/stories/dept/fvd/pdf/modecode_fin_printable.pdf (last visited
October 10, 2008).
6 Available at http://www.stopvaw.org/Sample_National_Family_Violence_Laws.html (last visited October
10, 2008).
7 Minn. Stat.§ 519B.01 (2007) available at https://www.revisor.leg.state.mn.us/statutes/?id=518B.01 (last
visited October 10, 2008).
8 The term “best interest factors” generally means relevant factors which a judge will take into
consideration when making a custody determination.
9 The term “CPO” means civil protection order also known as an “order for protection.”
10 The inclusion of persons involved in a significant romantic or sexual relationship or who have formerly
been involved in a significant romantic or sexual relationship is consistent with the U.N. Framework,
Article II, B(7); the COE Recommendations, Appendix to Rec(2002)5, 1(1a); and the Model State Code,
Sec. 102.
11 Neither the U.N. Framework, the COE Recommendations, nor the Model State Code address economic
violence as a form of family violence. Economic exploitation is addressed as it relates to trafficking in
women and girls.
12 See Statement of the Special Rapporteur on Violence against Women, StopVAW available at
http://www.stopvaw.org/Statement_of_Special_Rapporteur_on_Violence_Against_Women.html (last
visited October 10, 2008).
13 U.N. Model Framework, Article II, B(9); COE Recommendations, Appendix to Rec(2002)5, 59.
14 U.N. Model Framework, Article IV, A(29)(vi-viii), B(38)(j-l); COE Recommendations, Appendix to
Rec(2002)5, 58(f).
15 U.N. Model Framework, Article IV, 29(i) and 38(b); COE Recommendations, Appendix to Rec(2002)5,
58(b).
16 U. N. Model Framework, Article VII, 60(vii).
17 U. N. Model Framework, Article VII, 60(vii).
18 COE Recommendations, Appendix to Rec(2002)5, 55.
19 U.N. Model Framework, Article IV, 29(i) and 38(b); COE Recommendations, Appendix to Rec(2002)5,
58(b).
20 COE Recommendations, Appendix to Rec(2002)5, 55.
21 Hagemann-White, Carol, and Bohn, Sabine, Protecting Women against Violence: Analytical study on
the effective implementation of Recommendation Rec (2002)5 on the protection of women against violence
in Council of Europe member states, Directorate General of Human Rights and Legal Affairs, Strasbourg,
2007
The Advocates for Human Rights Comments on Kazakhstan Draft Law on Domestic Violence 22 May 2009
Comments by The Advocates for Human Rights on the
DRAFT Law of the Republic of Kazakhstan
“On Counteracting Domestic Violence”
May 22, 2009
The Advocates for Human Rights (hereinafter “The Advocates”) first reviewed the DRAFT Law of the Republic of Kazakhstan, “On Counteracting Domestic Violence” (herinafter “MoI DRAFT Law”) in August 2008 at the request of UNIFEM. The Advocates received the most recent request to review the DRAFT Law from OSCE/ODIHR in preparation for a workshop on “Best Practices in Legislation for Combating Domestic Violence” to be held June 1-2, 2009 in Astana, Kazakhstan.
In addition to reviewing the DRAFT Law “On Counteracting Domestic Violence,” The Advocates was asked to review the following:
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"Law of the Republic of Kazakhstan on Prevention and Suppression of Domestic Violence" (herinafter “Working Group (WG) DRAFT Law”),
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DRAFT Law "On Changes and Amendments to Some Legislative Acts of the Republic of Kazakhstan on Prevention and Suppression of Domestic Violence" (hereinafter “Draft Amendments”),
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DRAFT Law of the Republic of Kazakhstan “On Crime Prevention” (hereinafter “Crime Prevention DRAFT Law”).
The Advocates congratulates the Republic of Kazakhstan for undertaking the difficult, but vital, process of drafting this legislation to protect its citizens from domestic violence. In so doing, Kazakhstan takes a step toward fulfilling its positive obligations under the international treaties and conventions it has ratified. These obligations include guaranteeing an individual’s right to be free from violence, and a state’s responsibility to protect individuals not only from violations of their rights by government entities, but also against acts of violence committed by private entities.
The Advocates also notes that the package of DRAFT Laws demonstrates a serious commitment to achieve the goal of the “Strategy of Gender Equality in the Republic of Kazakhstan for 2006-2016,” namely the “creation of the conditions for a dignified life of people free of violence…in its various forms in all social spheres, including family.” The Advocates respects the government’s willingness to acknowledge problematic attitudes that exist in society, including that violence in the family should be a private matter. As the government rightly concluded in the “Strategy for Gender Equality,” these attitudes often cause domestic violence victims to be afraid to report to law enforcement, which in turn, impairs the government’s ability to protect victims of domestic violence. The government of the Republic of Kazakhstan can play an important role in changing societal attitudes that blame women for domestic violence.
The Republic of Kazakhstan reported in the “Strategy of Gender Equality” that 35,000 crimes against women were registered in 2004 with at least 60% of all women exposed to physical or sexual violence at least once in their lifetimes and 28% of married women suffered violence from their husbands. At these rates, 140,000 more women were crime victims from 2005-2008. Until a specific domestic violence law is enacted, crimes against women continue with impunity.
Review of the DRAFT Law “On Counteracting Domestic Violence”
The Advocates recommends that the Republic of Kazakhstan continue to revise and strengthen the DRAFT Law to ensure that each provision of the law embodies the principle that women have the right to be free from violence, and to have a remedy for domestic violence and the threat of domestic violence so that they no longer have to endure such violence in silence. In addition, the government should ensure that offenders are held accountable for domestic violence. In countries where domestic violence laws have been in place for twenty to thirty years, domestic violence laws have evolved to include three primary components:
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Civil law provisions that all the government to protect domestic violence victims (orders for protection, hotlines, shelters, and other victims services),
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Criminal law provisions that allow the government to prosecute perpetrators of domestic violence (assault, terroristic threats, criminal sexual conduct, interference with an emergency call and other criminal laws), and
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An infrastructure to promote prevention of domestic violence (government offices to coordinate and award funding to the private sector).
Each of the components -- Protection, Prosecution and Prevention – are important for a government to undertake when addressing domestic violence. However, governments must sometimes prioritize one component over another when resources are scarce. Where that is the case, it is vital that resources are directed at protecting domestic violence victims. Without such protection, victims are often unable to cooperate in the prosecution of the perpetrators of domestic violence. In addition, any prevention efforts must address the immediate need for the safety and security of domestic violence victims.
The Advocates strongly recommends that the Republic of Kazakhstan monitor the implementation of the law once it is enacted. The monitoring will likely expose unintended obstacles to effectively protecting victims from further threats of or acts of domestic violence, and to 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.
Review of Model Legislation
In the process of revising and strengthening the law, The Advocates recommends that the drafters revisit the following important models for legislation on domestic violence:
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The U.N. Framework for Model Legislation on Violence against Women (2008) (hereinafter “U.N. Framework”)
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The Protection of Women against Violence (2002), Recommendations, Rec(2002)5 (hereinafter “COE Recommendations”)
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Family Violence: A Model State Code (1994) (hereinafter “Model State Code”)
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Sample National Domestic Violence Laws on StopVAW (includes Albania and Bulgaria)
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Minnesota Domestic Abuse Act (2008)
Domestic violence laws also impact police, prosecutors, and courts. 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 remedies for domestic violence victims in the new law.
With regard to the provisions on children in the DRAFT Law “On Counteracting Domestic Violence,” the authors of the DRAFT Law 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. The Republic of Kazakhstan should consider making the following provisions a part of those laws as is suggested by the Model State Code:
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Amend existing child custody laws to include domestic violence as a relevant factor in considering the “best interests” of the child;
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Create a rebuttable presumption against custody to the batterer;
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Provide representation for children in child custody and visitation/parenting time cases, ensuring that representatives are well-trained on the dynamics of domestic violence;
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Allow courts in granting orders for protection to temporarily order child custody and support to the non-violent parent, and allow courts to enter an order for protection as to the child;
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Ensure that children who witness domestic violence are not necessarily categorized as abused or neglected children;
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Ensure that children are protected from violence and not placed in the custody of a violent parent;
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Ensure that children and adult victims of domestic violence are not endangered in order to accommodate visitation by a perpetrator of family or domestic violence; and
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Permit visitation by the violent parent only if precautionary measures are taken to protect the safety of the child.
Domestic violence laws should always provide for 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 should be issued without a hearing in emergency situations. Such an emergency order is often called an “ex parte” order for protection. Where no emergency exists, a permanent “order for protection” should be issued after a hearing. 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 should always be a criminal offense. If the abuser repeatedly violates the restrictions, the criminal penalties should become more severe with each violation.
Criminal laws should clarify that domestic assault is a distinct crime, including those assaults that involve low-level injuries such as bruises, cuts, scrapes and burns. Laws and policies should make clear that law enforcement and prosecutors are obligated to pursue all cases of domestic violence, including assaults resulting in low-level injuries. It is important to ensure that crimes involving domestic violence are not treated less seriously than other crimes. In fact, many jurisdictions increase criminal penalties for repeated domestic violence offenses, even if they involve low-level injury. For example, three or more convictions for assaults involving low-level injury may become a felony with more severe sanctions. The DRAFT Law should communicate to the public zero tolerance for all violence.
In addition, other acts, such as assault, terroristic threats, criminal sexual conduct, and interference with an emergency call – acts that are all common in domestic 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 from 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 during the pendency of the criminal proceeding. 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 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 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 the commission of the offense.
The DRAFT Law of the Republic of Kazakhstan should include the following provisions, at a minimum:
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A fully developed emergency order for protection;
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A fully developed order for protection civil remedy;
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A criminal offense for violation of the order for protection in the civil law with a cross-reference to any relevant provisions of the criminal laws, such as punishment for various levels of offenses;
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Clear language in the criminal laws and criminal procedure codes that makes domestic assault a crime, including those assaults resulting in low-level injuries such as bruises, scrapes, cuts and burns;
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Clear language in the criminal laws and procedure codes that obligates law enforcement and prosecutors to pursue domestic violence cases including those involving low-level injuries;
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Enhanced penalties for multiple violations of the order for protection; and
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Enhanced penalties for other criminal offenses committed against those who fall within the meaning of Chapter 1, Article 1 of the DRAFT Law.
Specific Comments on Existing Elements in the Republic of Kazakhstan DRAFT Law “On Counteracting Domestic Violence”
The Advocates for Human Rights has received the DRAFT Law of Republic of Kazakhstan “On Counteracting Domestic Violence” and offers the following specific comments on the DRAFT Law, which are based upon information found in the Model State Code and the U.N. Framework. The Advocates for Human Rights has serious concerns about some provisions in the Law and offers the following comments to improve the effectiveness of the Law.
The Republic of Kazakhstan should consider a law that would provide for both an administrative or civil emergency order for protection and an administrative or civil order that is issued after a full hearing. The 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. Then, 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. 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 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 Republic of Kazakhstan, the articles of the Law that most closely resemble a protective or restrictive order or measure are Articles 13-24 of the WG DRAFT Law or Articles 12-24 of the MoI DRAFT Law. These articles refer to “Preventive Control” and “Restrictions Applied with Regard to Persons Under Preventive Control.” As it currently stands, Article 16 of the WG DRAFT Law or Article 18 of the MoI DRAFT Law begin to describe some of the important elements described in the paragraph above. However, additional elements should be included in this article, and other articles should be revised or as in the case of Article 13 of the WG DRAFT Law or Article 12 of the MoI DRAFT Law, completely omitted. Because the DRAFT Law uses the term “preventive control,” these comments will retain that language.
The Advocates for Human Rights offers the following specific comments on the MoI DRAFT Law:
Chapter 1. General Provisions Article 1. Main Concepts Used in This Law, Paragraph 1) counteraction to domestic violence
In paragraph 1), the prevention of domestic violence is best provided by private non-commercial organizations that work directly with victims. These organizations best know victims’ needs and can most effectively represent their interests. The government should provide support and funding to these groups. Rather than devote scarce resources to the “elimination of causes and conditions that trigger domestic violence,” police should focus on identifying the violent offender, holding the offender accountable for the violence, and ensuring the victim’s safety.
Chapter 1, Article 1, Paragraph 2) “Domestic violence is…”
The definition of domestic violence should focus on physical harm or the fear of physical harm. The current definition is open to manipulation and to retributive counterclaims by violent perpetrators. For example, a perpetrator may claim that physical violence is an appropriate response to an act of psychological harm. Or, an angry or disgruntled violent abuser may seek protection against his wife for damage of an economic nature. The priority of courts in issuing “preventive control” should be to protect the safety of victims and their children.
Chapter 1, Article 1, Paragraph 3) “Family-domestic relations means…”
To better protect more victims of domestic violence, the Law should also apply to:
· persons involved in a significant romantic or sexual relationship,
· who have formerly been involved in a significant romantic or sexual relationship,
· persons who have a child in common regardless of whether they have lived together at any time, and
· former spouses whether or not they are currently living together.
Many situations of domestic abuse involve people in such relationships.
Chapter 1, Article 1, Paragraph 5) “Official warning on inadmissibility of committing domestic violence”
All language regarding an “official warning” should be removed from the Law. Such warnings place victims at risk of further harm. Legal system officials should act immediately upon a report of domestic violence whether through criminal sanctions or through the issuance of “preventive control” to hold the offender accountable and to keep the victim safe. The Law should communicate a zero tolerance for violence message to the public.
Chapter 1, Article 3, Principles of Legislation On Counteracting Domestic Violence
All language regarding “maintenance of the family” should be omitted from the law. If legal system officials are charged to maintain or preserve the family, they may not hold offenders accountable or give top priority to victim safety.
Chapter 1, Article 4, Subjects that Execute Counteraction to Domestic Violence
Courts should specifically be listed as one of the subjects with authority to take action in response to threats of domestic violence or actual incidences of domestic violence.
Chapter 2, Article 5, Authorities of the Government of the Republic of Kazakhstan
The Government of Kazakhstan should provide funding in its annual budget so that the actions by ministerial, state and local bodies under this Law may in fact be implemented. Specifically, the State should provide funding to non-governmental organizations that provide services and shelters to victims of domestic violence. Experience has shown that adequate and regular government funding, rather than reliance upon local budgets or private grants or donors, provides the most reliable shelters and counseling networks for victims. For example, in drafting its law, the Republic of Armenia initially did not provide that the government should fund shelters and other organizations providing services to domestic violence victims, but later amended their DRAFT Law to include such funding.
The Advocates recommends that the DRAFT Law include a mandate for the Government to provide funding for the creation of a specialized prosecutor’s office and for the designation or strengthening of specialized police units, and provide adequate funding for their work and specialized training of their staff in order to implement the DRAFT Law.
Chapter 2, Article 7, Commissions on Family Issues and Gender Policy and Commissions on Minors and Protection of Their Rights, Paragraph 1
In section 4), victims should be provided with rehabilitation services only upon the victims’ request. Many victims of domestic violence do not need psychiatric counseling or rehabilitative services. Rather, domestic violence victims need government and non-governmental agencies to focus resources on ensuring their safety through adequate provision of shelters and economic opportunities and to ensure offender accountability through adequate criminal laws and sanctions. The DRAFT Law should clarify that rehabilitation should be offered to victims and provided only at the victim’s request. It should never be compulsory or imposed on victims by government agencies or officials.
Chapter 2, Article 7, Commissions on Family Issues and Gender Policy and Commissions on Minors and Protection of Their Rights, Paragraph 2
Although officials should have the authority to issue ”preventive control” based on the application of a non-violent parent for themselves and on behalf of their child, The Advocates are concerned about including provisions addressing child abuse in the domestic violence law. Domestic violence laws are not well-suited to address child abuse. Domestic violence laws are intended to provide an immediate remedy of separation and protection. Child abuse should be addressed as a separate law containing specifically tailored remedies for neglected or abused children and procedural protections for parents.
Chapter 2, Article 8, Authority of Bodies of Internal Affairs
Article 8 provides internal affairs bodies with expansive authority to intervene in domestic violence cases. The focus should be on identifying the violent offender, holding the offender accountable, and ensuring the victim’s safety. In fact, in both Bulgaria and Georgia, the Ministries of the Interior found the implementation of preventive measures to be difficult. They are now seeking amendments to their law that provide for more focus by police on enforcement and on holding the offender accountable.
With regard to Paragraph 2) of Article 8, we reiterate that although the state should have the authority to issue ”preventive control” based on the application of a non-violent parent for themselves and on behalf of their child, The Advocates is concerned about including provisions addressing child abuse in the domestic violence law. Specific laws addressing child abuse are needed to hold offenders accountable, protect parental rights and to provide safety and assistance to children. Research on the impact of domestic violence on children should be taken into consideration in any determinations about custody of children. In particular, it is important that custody of children is at least initially given to the non-violent parent until a court may hold a hearing to determine long-term or permanent custody arrangements. Domestic violence laws are intended to provide an immediate remedy of separation and protection.
In Paragraph 6), the language should clearly indicate that it is the victim’s choice whether or not to seek help from such organizations.
Chapter 2, Article 10 Authority of Educational Bodies
As stated above, The Advocates are concerned about including provisions addressing child abuse in the domestic violence law. Additionally, in cases where a government agency receives information about a domestic violence victim, that agency should take the utmost care to preserve the confidentiality of the victim. Breaches of this confidentiality may result in an increased risk of harm to the victim.
Paragraphs 1), 2) and 3) should be deleted from the law. The language contained in these paragraphs is too vague in its direction to Education Bodies and risks too much government intervention in cases where it is not clear that violence has occurred. Cases of abuse or violence against children by parents or guardians should be reported to authorities. The long term remedies in these cases should be addressed in a separate law on child abuse. The focus of all laws aimed at preventing violence should be on the accountability of the abuser and the safety of the victim. While it is important to provide counseling and other services to address the injuries resulting from the violence, the focus should not be on psychological rehabilitation of the victim. Rather officials should focus on delivering the services she needs and holding the offender accountable.
Chapter 2, Article 11 Assistance Providers
The services and assistance for domestic violence victims outlined in this section are important provisions of the DRAFT Law. Psychological, legal, social and other services offered to adult victims of domestic violence should be provided only upon their request, with the exception of medical services, which should be provided if needed.
If possible, the legislation should provide for one shelter/aid center for every 10,000 inhabitants, one women’s help center for every 50,000 women, and one rape crisis center for every 200,000 women. The Advocates also recommends that the drafters include a provision calling for the funding of a national women’s hotline where all victims of violence may get around-the-clock assistance, free of cost, and where they may be referred to shelters and aid centers.
The DRAFT Law should contain a requirement that the State provide funding to implement the measures in its annual budget so that the measures to counteract domestic violence may in fact be implemented. Specifically, the State should provide funding to non-governmental organizations that provide services and shelters to victims of domestic violence. Experience has shown that adequate and regular government funding, rather than reliance upon private grants or donors, provides the most reliable shelters and counseling networks for victims. For example, in drafting its law, the Republic of Armenia initially did not provide that the government should fund shelters and other organizations providing services to domestic violence victims, but later amended their DRAFT Law to include such funding.
Chapter 3 Arranging Activity of State Bodies to Counteract Domestic Violence, Article 12 Official Warning about Inadmissibility of Committing Domestic Violence
Article 12 should be omitted. All language regarding an “official warning” should be removed from the Law. Such warnings place victims at risk of further harm. Government officials should act immediately upon report of domestic violence whether through criminal sanctions or through the issuance of restrictive or protective measures, referred to in the DRAFT Law as “preventive control.”
Chapter 3 Article 13 Preventive Control
The concept of “preventive control,” as introduced in this article resembles the protective or restrictive orders common throughout FSU and CEE countries. However, it should be noted that the primary purpose of protective orders is the safety of the victim not “surveillance” of the perpetrator. Rather, the victim is kept safe by ordering the perpetrator not to contact the victim, to be removed from the home, not to possess firearms, and other orders as necessary to ensure the safety of the victim. If the perpetrator violates the terms of the court order, the perpetrator should be charged with a criminal offense – violation of the “preventive control” order. Where a victim seeks “preventive control” or a protective order and the government prosecutor also determines that the perpetrator has committed a criminal offense, the perpetrator may criminally charged and also be subject to other conditions such as pre-trial detention or conditions of release.
Chapter 3 Article 14 Persons Put Under Preventive Control
The law should provide that officials have the authority to issue “preventive control,” known in most FSU/CEE countries as restrictive or protective measures, based solely on the affidavit or testimony of the victim. No other evidence should be required.
All language on official warnings should be removed from the law. Any violation of “preventive control” should be a criminal offense.
Chapter 3 Article 15 Grounds for Establishing Preventive Control
Women who are victims of violence are most often the best judges of the dangers presented to them by their violent partners. Therefore, it advisable to include them in the decision to apply for preventive control. This is particularly true since research shows that one of the most dangerous times for many women is when they separate from their abusers. It is very important for an adult victim of domestic violence to make her own decision to leave a relationship because she is in the best position to assess the potential danger. Applications on behalf of minor victims may be made by adult family or household members. For criminal cases, drafters should consider the inclusion of a domestic abuse no contact order as discussed earlier in these comments.
The law should ensure that victims may apply for emergency “preventive control.” A court should issue the order without a hearing in emergency situations. Such an emergency order is often called an “ex parte” order for protection. Where an “ex parte” order for protection is issued, either the petitioner or the respondent may request a later hearing. Legal system officials should act immediately upon a report of domestic violence to hold the offender accountable and keep the victim safe. Where no emergency exists, a permanent “order for protection” should be issued after a hearing.
If the offender has violated the terms of “preventive control,” the violation should be a criminal offense for which jail time may be imposed. If the offender has not committed a criminal offense but is the subject of “preventive control,” the offender may be prohibited from certain activity as provided in Article 18. The priority of the government should be to protect its citizens from violence and ensure their safety over and above other rights, including property rights. An offender who is awaiting the start of his sentence, or one who has been released early from jail or a medical institution, should continue to be subject to the requirements of the “preventive control” measures..
Chapter 3 Article 16 Order Establishing Preventive Control
The Advocates welcomes the courts’ authority to establish “preventive control.” Courts should order “preventive control” upon receiving a petition filed by the victim for first-time acts or threats of violence. All references to “official warnings” should be removed from the law.
Chapter 3 Article 17 Term of Preventive Control
In cases where the offender violates court ordered protective measures, he should be criminally prosecuted.
Preventive control should not be limited to three months to one year. The DRAFT Law should clarify that their duration should be at least one year and in some cases involving increased risk of danger to the victim, they should be left in place permanently, and only terminated by a finding by the court based on clear evidence that there is no longer any danger to the victim.
Any preventive or protection measures should also be extended if there is a reasonable fear of physical harm from the person under preventive control. There should be no requirement of actual and repeated domestic violence or a violation of the preventive control to obtain an extension of the preventive control measure’s period of validity. The DRAFT Law should clarify that both the application and termination of the preventive control must be the responsibility of the courts.
Chapter 3 Article 18 Restrictions Applied Against Persons Under Preventive Control
The authority of the court to include specific protection measures should be expanded. The United States Model Law on Domestic Violence contains a list of suggested protection measures, including, but not limited to enjoining the perpetrator from threatening to commit or committing acts of domestic violence. The language in Article 18 should be amended to clearly indicate that the offender will be ordered to leave the home, enabling the victim and her children to remain there safely, regardless of ownership of the residence. In some countries police found that the lack of authority to remove the violent offender from the home proved problematic to their implementation of the law. This led them to seek amendments to allow them to remove the violent offender from the home.
In addition to prohibiting the perpetrator from going near the residence, the law should grant courts the authority to order the perpetrator to stay away from the place of employment of the petitioner or any specified place frequented by the petitioner or any member of the petitioner’s family or household. The DRAFT Law should grant the court authority to order possession and use of an automobile and other essential personal effects, and direct law enforcement to accompany the petitioner to the residence of the parties to ensure that the petitioner is safely restored to possession of the residence, automobile and other personal effects. The DRAFT Law should state that law enforcement should supervise the petitioner’s or perpetrator’s removal of personal belongings.
The Advocates welcomes part 1) prohibiting the purchase and use of firearms, but recommends the following new language be added to Article 18 of the DRAFT Law: “A person who is subject to a protective order or a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or a child or family member of the intimate partner, or that restrains such person from engaging in conduct that would place an intimate partner in reasonable fear of bodily injury to the partner, child or family member, is forbidden to possess or to purchase any firearm during the term of the court order. Said person’s firearms shall be surrendered immediately to the police. The police shall notify the victim upon the return of the firearms to the person at the end of the term of the court order.”
Officials should have the authority to award temporary custody to the non-violent parent. Primary consideration should be given to the safety of the victim and her children. Decisions about custody and parenting time should never delay the issuance of protective measures.
In Paragraph 3, victims should be the only parties with standing to request the modification of the “preventive control.” Police involvement is best focused on enforcement of the “preventive control,” and court involvement is best focused on hearing applications for “preventive control.”
Chapter 3 Article 19 Pronouncing a Ruling on the Establishment or Prolongation of Preventive Control or on Changing Restrictions
Notice served to the person subject to the ruling should be made in person where possible. However, experience demonstrates that personal service by law enforcement is sometimes unsuccessful because the person subject to the ruling avoids service by concealment or otherwise. In such cases, provision should be made to allow notice to be served by publication.
Chapter 3 Article 20 Grounds for Terminating Preventive Control
Drafters should use caution in elaborating the conditions upon which preventive control shall cease. Judges are in the best position to evaluate the appropriateness of an early cessation of preventive control, and this should be completely in their discretion. Only offenders or victims should have authority to request termination of the order. Police involvement is best focused on enforcement of the order.
Chapter 3, Article 21. Procedure for Terminating Preventive Control
Only offenders or victims should have the ability to request termination of the preventive control. The courts should have the ability to terminate the preventive control. Police involvement is best focused on enforcement of the order.
Chapter 3 Article 22 Rights and Obligations of Officers Exercising Preventive Control
The efforts of officials exercising preventive control are best focused on enforcement and ensuring the safety of the victim. The Model Code on Family and Domestic Violence outlines the duties of law enforcement officers, including, inter alia:
a) Taking action necessary to provide for the safety of the victim or of any household member;
b) Confiscating any weapon involved in the alleged domestic violence;
c) Transporting or obtaining transportation for the victim and any child to a shelter or place of safety;
d) Assisting the victim in removing essential personal effects; and
e) Assisting the victim and any child in obtaining medical treatment, including obtaining transportation to a medical facility.
Chapter 4 Responsibilities and Rights of Persons Under Preventive Control, and Liability for Violating Rules of Preventive Control Article 23 and Article 24
The law should clearly state that the violation of “preventive control” is a crime, with penalties as stipulated under the Criminal Procedure Code of Kazakhstan. As previously mentioned, in Bulgaria and Georgia, police, prosecutors, and judges have discovered, through the direct experience of trying to ensure victim safety and to hold offenders accountable, that criminalizing the violation of restrictive or protective measures was extremely important in ensuring the effectiveness of their laws. In fact, on 13 April 2009 Bulgaria passed an amendment to their law making the violation of the order for protection issued under the domestic violence law a crime under Article 296 of the Bulgarian penal code.
Comments by The Advocates for Human Rights on the
DRAFT Law of the Republic of Kazakhstan, “On Making Amendments and Additions into Some Legal Acts of the Republic of Kazakhstan on the Issues Related to Prevention and Suppression of Family Violence”
August 20, 2008
The Advocates for Human Rights has reviewed the DRAFT Law of the Republic of Kazakhstan, “On Making Amendments and Additions into Some Legal Acts of the Republic of Kazakhstan on the Issues Related to Prevention and Suppression of Family Violence,” which contains amendments to the Criminal Procedure Code of the Republic of Kazakhstan, the Code of the Republic of Kazakhstan on Administrative Violations, and the Law of the Republic of Kazakhstan on “Bodies of Internal Affairs of the Republic of Kazakhstan.”
The Advocates congratulates the Republic of Kazakhstan for having the foresight to amend the relevant Codes of the Republic of Kazakhstan to bring them into compliance with the (not yet enacted) Law of the Republic of Kazakhstan “On Domestic Violence,” (hereinafter, “the Law”). As the drafters have recognized, a new domestic violence law interacts with criminal law and procedure, administrative law, and other areas of law, including laws on child custody, child support, and divorce.
Domestic 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.
As a point of reference, the Minnesota Domestic Abuse Act, first enacted in 1979, now incorporates references to various provisions of the Minnesota criminal laws, child custody laws, and U.S. federal laws such as the Violence Against Women Act (VAWA) and Gun Control Act. The legal framework established in Minnesota to address domestic violence consists of both civil and criminal laws with effects upon child custody laws and evidentiary rules.
The civil remedy available under the Minnesota Domestic Abuse Act is immediate protection from domestic abuse, which is defined as physical harm, bodily injury, or assault; the infliction of fear of imminent physical harm, bodily injury, or assault; or terroristic threats, criminal sexual conduct; or interference with an emergency call committed against a family or household member by a family or household member.
Domestic violence laws should always allow victims to seek such a civil remedy, 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 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.
Family codes or laws regarding divorce and child custody 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.
The violation of a civil order for protection or any kind of restrictive or protective measure, including those measures of preventive control reflected in Kazakhstan’s draft law, should 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 make sure the victim remains safe.
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.
The Advocates for Human Rights recommends that at a minimum the following elements should be incorporated into the legal scheme of the Republic of Kazakhstan:
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Including a fully developed order for protection civil remedy in its law;
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Providing a criminal offense for violation of the order for protection in the domestic law with a cross-reference to any relevant provisions of the criminal laws such as punishment for various level of offenses;
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Providing enhanced penalties for multiple violations of the order for protection; and
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Providing enhanced penalties for other criminal offenses committed against those who fall within the meaning of Chapter 1, Article 1(3) of the domestic violence law.
In addition, The Advocates for Human Rights offers the following comments to improve the effectiveness of both the Law and the Amendments. For ease in following this document, several of our comments to the Law on the Republic of Kazakhstan On Counteraction to Domestic Violence (hereinafter the Law on Counteraction to Domestic Violence) will be repeated here where relevant.
Criminal Procedure Code
Proposed Amendment to Article 7 Part 1:
The definition of “family violence” in the Criminal Procedure Code or any other part of the laws of the Republic of Kazakhstan can be cross-referenced to the definition section of the Law of the Republic of Kazakhstan on Counteraction to Domestic Violence. The definition of “family violence” need not be repeated in every code or law.
The definition should be extended to apply to intimate partners, or persons involved in a significant romantic or sexual relationship, persons who reside together or who have resided together, who are not necessarily married. This would better protect more victims of domestic violence. Many situations of domestic abuse involve people in such relationships. The definition of violence should focus on physical harm or the threats of physical harm.
The Law on Counteraction to Domestic Violence can be cross-referenced to sections of the Criminal Procedure Code or the Criminal Code to include crimes or the elements of the crimes described below that may be prohibited by Kazakhstan’s criminal laws. The following list may not include all of the crimes prohibited by Kazakhstan’s laws that may involve those who fall under the definition of “family violence,” but the list is an important starting point for the cross-referencing process.
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Assault (commits an act with intent to cause fear in another of immediate bodily harm or death; or intentionally inflicts or attempts to inflict bodily harm upon another);
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Terroristic threats (threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another);
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Interference with an emergency call (intentionally interrupts, disrupts, impedes, or interferes with an emergency call or who intentionally prevents or hinders another from placing an emergency call); or
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Criminal sexual conduct.
In addition, the word “deliberate” should be omitted from the definition because requiring proof of the offender’s state of mind is difficult and will impede authorities’ ability to provide immediate protection to victims.
Provisions requiring officials to conduct risk assessments in domestic violence cases should be included in the Criminal Procedure Code and/or the Criminal Code. During the criminal process, an individual arrested or detained for a criminal domestic violence offense should not be released from detention until police and/or judges have made a determination of the level of risk he presents to the victim. Extensive research exists identifying indicators of when victims are most at risk for serious injury or homicide. These risk assessment tools can be used by criminal justice system officials to better protect victims. (See footnote 6 below.)
Proposed Amendment to Article 143 Part 2-1
The prohibitions on the defendant’s behavior should be extended to include approaching the victim’s home, workplace and the children’s schools. In addition, the drafters should consider whether the court should provide other relief with the “preventive control” to ensure the victim’s safety and security including, but not limited to:
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Temporary support of the victim and the children of the victim and abuser;
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Temporary custody of the children or temporary parenting time which gives primary consideration to the safety of the victim and children; and
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Temporary use and possession of property, including the residence or dwelling, and restraining one or both parties from transferring or disposing of any property rights.
Proposed Amendment to Article 143 Part 3:
The chart of the recommended text also includes a statement that if a defendant violates the measures against family violence, a “stricter suppression measure” shall apply to him. The Amendment to the Law (and the Law itself) should clearly address criminal sanctions for violation of “preventive control” measures, including enhanced sentences for repeat offenses and restitution for victims of domestic violence. These penalties are important to communicate a message of zero tolerance for domestic violence.
Administrative Violations Code
Proposed Amendment to Article 59-1 Part 2
Part 2 should be changed to make it also a violation for the offender to possess or obtain firearms. The words “purchase” or “use” should remain in the law. Offenders should be required to turn over their weapons to the police. Police should be authorized to ask for and to receive the weapons of an offender. This will significantly decrease the risk of serious harm to victims. In addition, if the offender uses a weapon while violating “preventive control” measures, the criminal penalty for such an offense should be the maximum criminal penalty allowed by law.
Any “requirements to behavior of offender” should include prohibiting him from going near the family home or the home of the victim.
The duration of the restrictions or requirements for the offender’s behavior should not be limited to three months. Rather, “preventive control” should remain in effect for at least one year unless the offender requests a hearing.
Article 366-1 – Failure to Follow the Official Warning on Impermissibility to Commit Family Violence
All language regarding “an official warning” should be removed from the Law and from the proposed Amendment to the Administrative Violations Code. Such warnings place victims at risk of further harm. Government officials should act immediately upon a report of domestic violence whether through criminal sanctions or through the issuance of “preventive control” measures.
Comparative Table On the Draft Law of the Republic of Kazakhstan “On Making Amendments and Additions into Some Legal Acts of the Republic of Kazakhstan on the Issue Related to Prevention and Suppression of Family Violence , (hereinafter `Comparative Table’ Article 541
A violation of “preventive control” should be a criminal offense and not an administrative offense as discussed in the comments above.
The law should ensure that victims have efficient and easy access to officials to report violations or apply for “preventive control.” Special procedures and forms should be put in place to ensure such access.
Article 636 - Officials Authorized to Draw Up Administrative Violation Protocols
All language regarding “an official warning” should be removed from the Law. Such warnings place victims at risk of further harm. Government officials should act immediately upon a report of a domestic violence whether through criminal sanctions or through the issuance of “preventive control” measures.
Cases of a violation of “preventive control” should be a criminal offense and not an administrative offense as discussed above.
Law of the Republic of Kazakhstan “About the Bodies of Internal Affairs of the Republic of Kazakhstan”
The police play a critical role in a community’s effort to hold offenders accountable for domestic violence and protect the safety of victims. Their primary role in domestic violence cases should be the enforcement of “preventive control” and the enforcement of criminal laws. The law should require that authorities develop clear policies and procedures for police to follow when they report to the scene of a domestic assault or respond to a report of a violation of “preventive control”.
The law should require that there be mandatory, regular training for police on how to effectively enforce new domestic violence legislation. This training should include the dynamics of domestic violence, the importance of arresting offenders in cases of domestic assault, risk assessment and identifying the primary aggressor.
In all cases of domestic violence, police should be mindful of the escalating risk of danger to victims. Indicators of this increased risk include excessive jealousy or depression on the part of the offender, stalking of the victim, threats of homicide or suicide in the past and drug or alcohol abuse. A risk of lethal violence has also been associated with the offender’s possession of or access to weapons, the use of weapons or threats of such use in prior incidents, and escalation in frequency or severity of the violence. Legal professionals have identified the abuser's prior "choking" or "strangling" of the victim as an indicator of extreme danger.
Police policy should include directions to officers who report to the scene of a domestic violence case to ensure that the victim has a safety plan in place and assist her in taking the steps she has outlined for herself in her safety plan. If no safety plan is in place, the officer should ensure that the victim is aware of local service providers who can assist her in seeking safety and services. Officers should carry cards to give to domestic violence victims that provide names and telephone numbers of local service providers as well as the rights of crime victims.
Internal Affairs Bodies in Kazakhstan should consider instituting a “probable cause arrest” standard into their policies, procedures or internal rules. Many domestic violence laws grant authority to police or even require them to arrest an offender when the officer has probable cause to believe a domestic violence crime has occurred. Police need not witness the crime, but can make this determination based on evidence at the scene such as visible injuries, overturned furniture, broken household items or frightened children. Laws should also require police to arrest an offender who they have probable cause to believe has violated “preventive control” measures.
Part 1, Article 11, sub-para.1
All language regarding “an official warning” should be removed from the Law. Such warnings place victims at risk of further harm. Government officials should act immediately upon a report of a domestic violence whether through criminal sanctions or through the issuance of “preventive control” measures.
Comments by The Advocates for Human Rights on the
DRAFT Law of the Republic of Kazakhstan
“On Crime Prevention”
May 22, 2009
The Advocates for Human Rights (hereinafter “The Advocates”) has reviewed the DRAFT law of the Republic of Kazakhstan, “On Crime Prevention.” The Advocates congratulates the Kazakhstan Republic for undertaking the difficult, but vital, process of drafting this legislation to protect its citizens from crime. The Advocates understands that the Draft Law “On Crime Prevention” would supplement the Draft Law on “Counteracting Domestic Violence.” Ensuring that such a law is consistent with existing criminal and criminal procedure laws, as well as with civil or administrative laws, increases the effectiveness of each set of laws.
Crime prevention is best achieved by holding offenders accountable for their criminal activity through a strong criminal code. Non-governmental organizations, funded and supported by government agencies, are best positioned to take on crime prevention activities. Laws may set out broad parameters for the duties of government agencies responsible for crime prevention, which may include the duty to:
(1) gather, develop, and make available throughout the state information and educational materials on preventing and reducing violence in the family and in the community, both directly and by serving as a clearinghouse for information and educational materials from schools, state and local agencies, community service providers, and local organizations;
(2) foster collaboration among schools, state and local agencies, community service providers, and local organizations that assist in violence intervention or prevention;
(3) assist schools, state and local agencies, service providers, and organizations, on request, with training and other programs designed to educate individuals about violence and reinforce values that contribute to ending violence;
(4) after consulting with all state agencies involved in preventing or reducing violence within the family or community, develop a statewide strategy for preventing and reducing violence that encompasses the efforts of those agencies and takes into account all money available for preventing or reducing violence from any source;
(5) submit the strategy to the governor by January 15 of each calendar year, along with a summary of activities occurring during the previous year to prevent or reduce violence experienced by children, young people, and their families;
(6) assist appropriate professional and occupational organizations, including organizations of law enforcement officers, prosecutors, and educators, in developing and operating informational and training programs to improve the effectiveness of activities to prevent or reduce violence within the family or community; and
(7) take other actions deemed necessary to reduce the incidence of crime.
At the same time, it is important to strike a balance between government intervention to protect public safety and the rights of individual citizens to privacy. The Office for the High Commissioner of Human Rights, in its General Comment No. 16: Article 17 (Right to Privacy) (1988) stated that:
“Article 17 provides for the right of every person to be protected against arbitrary or unlawful interference with his privacy, family, home or correspondence as well as against unlawful attacks on his honour and reputation. In the view of the Committee this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons. The obligations imposed by this article require the State to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of this right.”
Of course the exception to interference with the individual’s right of privacy is to protect public safety. Even where this is the case, protecting public safety should be achieved through lawful means. In addition, appropriate standards of due process must be put in place to protect those charged with crimes and those who may be suspected of committing criminal acts. This includes the right to be presumed innocent until proven guilty as enshrined in the Universal Declaration of Human Rights, Article 11. It should be made clear that the rights of law-abiding individuals will not be undermined by the Draft Law “On Crime Prevention.”
The Advocates recommends that the Republic of Kazakhstan exercise caution related to provisions for monitoring “socially acceptable behavior” or “antisocial actions.” Such provisions may be misinterpreted by those who believe that men exercising power over women, whether physical, psychological, economic, or sexual, is an “established social norm.” Victims might be labeled “antisocial” for attempting to assert their own power in relation to men or for actively defending themselves by seeking protection from the police, courts or others. In addition, invasive government monitoring often has the effect of making individuals fearful of any contact with the government, including law enforcement. As a result, even domestic violence victims may be afraid to report the perpetrators of violence against them. While it is not likely the intent of the drafters to re-victimize women who experience domestic violence, the unintended effect of such a provision may be just such re-victimization.
The Advocates recommends that the Kazakhstan Republic continue to revise and strengthen the DRAFT law “On Crime Prevention” to ensure that each provision of the law embodies the principle that individuals have the right to be free from violence, and to have a remedy for violence and the threat of violence. The government of the Kazakhstan Republic can play an important role in changing societal attitudes that blame crime victims, including victims of domestic violence, for the violence perpetrated against them.
The Advocates strongly recommends that the Kazakhstan Republic monitor the implementation of the law once it is enacted. The monitoring will likely expose unintended obstacles to effectively protecting victims from further threats of or acts of violence, and to 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 term “best interest factors” generally means relevant factors which a judge will take into consideration when making a custody determination.
Addressing the Tension between the Battered Women’s and Restorative Justice Movements
Loretta Frederick and Kristine Lizdas
There has been much robust conversation of late regarding the compatibility of restorative justice practices with cases involving domestic violence. At times this conversation places well-intentioned and peace-oriented advocates at odds with one another. This article attempts to explain why this tension exists, and provide an impetus for productive future dialogue.
While much popular sentiment in the U.S. continues to favor more aggressive law enforcement and ever-harsher penalties for criminal offenders generally pockets of retribution-worn community members have introduced alternative social responses to criminal behavior. These responses are directed at treating criminal acts as fissures in a community, calling for the community members themselves to play a role in healing these fissures, rather than as individual acts of deviance subject to castigation. These emerging practices fall under the rubric of “restorative justice.” Restorative justice encompasses a broad spectrum of activities and programs designed as responses to crime that are alternatives to the approaches of the criminal justice system. “Restorative justice is a problem-solving approach to crime, which involves the parties themselves, and the community generally, in an active relationship with statutory agencies.”
Beginning in the decade prior to the emergence of the restorative justice movement, battered women and their advocates coalesced to form what proved to be a growing campaign to stop domestic violence. Advocates had identified a specific form of violence that occurs in the intimate partner setting. Most intimate relationship violence by men against women is committed in the context of the offender's use of power and control tactics including intimidation and threats. While most of the new "battered women's movement" activities involved the provision of support, advocacy and safe housing to battered women, a predominant theme of the movement was and is the need to shift community norms away from tolerance and support of this violence. One of the most sustained foci of that effort was the reform of what many would argue is the penultimate norms-defining force: the criminal justice system. In fact, for the past several decades, the battered women’s movement has pushed the criminal justice system to treat domestic violence as a crime against the state and as a matter of public concern, rather than a private, family matter. In order to accomplish this transformation, battered women’s advocates worked to create partnerships with criminal justice system professionals.
These collaborations, however, were approached with ambivalence by some advocate activists; others objected outright to joint work with law enforcement and prosecution. This tension has several points of origin. Firstly, the results of such collaborations (such as mandatory arrest for domestic assault) sometimes clash with other fundamental tenets of the battered women’s movement, such as the need to promote women's autonomy and to resist the gender based oppression of women. Secondly, activists saw that different groups of battered women experienced criminal justice system involvement in their lives differently. Often these differences reflected their class, race, immigration status or sexual orientation. Thirdly, civil legal remedies (and other non-legal remedies) were sometimes seen as far more useful to women than those available through the criminal justice system.
Despite these concerns, however, many activists were encouraged by the growing evidence that a well-designed criminal justice system response to domestic violence could actually deter batterers and might, in the long term, contribute to a shifting of community norms through the criminalization of domestic violence. Advocates viewed reform of the criminal justice system as best accomplished through training and other advocacy activities designed to change police, prosecution, probation, and court practices. The resulting collaborations became some of the most important work of many domestic violence programs. To this day, the battered women’s movement’s attempts to reform the criminal justice system in partnership with its professionals continue to flourish.
Restorative justice proponents are, for several reasons, looking to the area of domestic violence as a potential arena for the application of restorative justice practices. At its outset, restorative justice took root in cases involving juveniles, and within indigenous communities. Its practitioners felt that the restorative justice principles were especially compatible in these contexts. Aware that domestic violence cases have begun to be and might continue to be subjected to these new practices, advocates within the battered women’s movement have been watching the evolution of the restorative justice movement with both interest and apprehension.
Multiple scholars and activists have highlighted the more obvious incompatibilities between restorative justice practices and the experiences of victims of domestic violence. For example, restorative justice practices assume family and community members share a sophisticated analysis of a particularly complicated form of violence. Restorative justice practices do not account for the level of fear and experience of entrapment suffered by victims of domestic violence, or the ongoing access perpetrators have to their victims. Restorative justice practices assume perpetrators do not understand the ramifications of their criminal behavior or its full impact on victims of domestic violence. The list goes on.
However, there has been less acknowledgement by the battered women’s movement of the those real areas of overlap between the two movements. Significantly, an analysis of the principles underlying the restorative justice and battered women’s movements reveals that there are at least four strong points of commonality. These are the movements' interests in (1) restoring victims of crime; (2) preventing individual offenders from re-offending; (3) promoting the role of the community in responding to crime; and (4) addressing the social context in which crime is committed. But it is how each movement implements these principles that vary vastly. Each movement endorses very different approaches and quite disparate practices. As outlined below, these differences are the result of each movement having arisen from a unique political standpoint and in response to different social problems.
Future directions for both movements, both individually and possibly collectively, should be driven by four goals which the authors submit should drive all interventions in domestic violence cases: (1) the restoration of battered women’s safety, autonomy and agency; (2) the prevention of further violence by batterers against their intimate partners; (3) the restoration/establishment of egalitarianism and peace as a community standard for conduct in intimate relationships; and (4) the attaining solutions to the social context of crime.
The ability of the battered women’s or the restorative justice movements to effectively stop future violence and restore of battered women’s safety, autonomy and agency will depend on whether both movements account for the fact that a primary facet of battering is the abuser’s restriction of his partner’s liberty—controlling how she spends her time, whom she sees, where she goes. Consequently, success depends on doing more than stopping the offender from committing other violent and intimidating acts. Because the circumstances in a woman’s life over which she has little or no control (such as economics, education/training, discrimination, language, gender, immigration status, housing, physical health, mental health, social status, and socio-cultural practices) may be manipulated by the abuser to victimize her, the social, legal and moral climate in the community must address that risk, as well.
The battered women’s movement, which has long focused on victim safety and autonomy, must do more to assist and partner with women’s own communities and to help organize around the issues chosen by the women in the community. Battered women's advocates must continue to insist on effective criminal justice system responses to domestic violence while avoiding heavy reliance on that system. And they must redouble their efforts to ensure that women have access to competent legal advocates and attorneys. But most of all, advocates must engage with women to look beyond the civil and criminal justice systems to their (or their abusers') families, friends, employers, faith communities, and neighbors to build support for the women, to increase their safety, and to encourage the batterers to cease their violence.
The restorative justice movement, too, has evolved practices which are designed to advance the safety and autonomy of crime victims. Victim-offender mediation, for example, has placed the emphasis upon victim healing, offender accountability, and restoration of losses. But any process that places the battered woman in a negotiating relationship with her source of fear offers her a false promise of hope and might, therefore, place her in danger. It is critical that all currently utilized restorative justice practices should include screening for and exclusion of cases involving domestic violence. Restorative justice practices which might have the most potential for restoring battered women’s safety, autonomy and agency would include those which involve her and her abuser’s community in a real and productive fashion which accounts for the prevalence of norms that tolerate and support violence against women. New practices must be designed which (realistically) enhance victim safety, prevent violence, establish community wide norms which reject such violence, and address the social context of this kind of crime. If the engagement of community members, which is the hallmark of restorative justice theory, were done for the purpose of creating a world (or at least a neighborhood) in which men and women were equally safe and free of coercive controls in their relationships, and if that work were done in concert with the movement already engaged in sending that message, serious progress in meeting these four goal would be possible.
The mandate for both movements is both clear and challenging. The only hope of meeting the challenges lies in each movement’s responsiveness to the other and most importantly to the battered women whose lives can best inform the direction they take. The battered women’s movement needs to engage with and listen to the restorative justice movement and to rethink what remedies upon which to focus. The battered women’s movement needs to engage with other progressive movements who are already advocating for the needs of battered women from other vantage points and addressing other life-generated problems. The restorative justice movement needs to engage with and learn from the battered women’s movement about the central nature of domestic violence and the true needs of battered women.
Sex Trafficking in Minnesota: Is the Paradigm Shifting?
By Mary C. Ellison, Esq., Staff Attorney, The Advocates for Human Rights
(First published in Fall 2009 Issue of With Equal Right: The Official Journal of Minnesota Women Lawyers, Volume XXXIII, Issue 11)
In September 2008, The Advocates for Human Rights published a report entitled “Sex Trafficking Needs Assessment for the State of Minnesota.” In that report, we concluded that “effectively combating sex trafficking in Minnesota will require a paradigm shift in the way the criminal justice system currently handles sex trafficking and prostitution cases. The paradigm must shift from an approach that technically criminalizes the activity, but in practice tolerates sexual exploitation, to one that aggressively prosecutes those who exploit women, girls, boys, and other vulnerable populations.” Now, a year later, the question we ask: “Is the paradigm shifting?”
Early evidence to support the conclusion that our response to sex trafficking in Minnesota is shifting includes:
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Recent amendments to strengthen the Minnesota criminal law on sex trafficking;
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Media reports on the “Minnesota Nice Guys,” which uncovered the fact that traffickers and “johns” do not behave like clean-cut, trustworthy, and blameless men;
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Law enforcement efforts that hold the traffickers and “johns” accountable rather than punishing the victims of the crime of sex trafficking;
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A more coordinated and strengthened community response involving a number of non-profit organizations and coalitions as well as government agencies; and
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The expansion of the Gerald D. Vick Human Trafficking Task Force to the Duluth area.
While cautiously optimistic given such positive evidence, we await additional indications that the paradigm has permanently shifted, including evidence of:
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Aggressive prosecution of the “Minnesota Nice Guys” and other pending sex trafficking cases;
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Protecting victims by offering assistance and refraining from charging them with a prostitution offense when it was the consequence of being trafficked;
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Amended Minnesota Sentencing Guidelines that address the disparities between sentences for those who engage in the sex trafficking of juveniles vs. those who engage in criminal sexual conduct with juveniles;
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Training for law enforcement, prosecutors, and judges that incorporates both the federal and Minnesota sex trafficking legal definitions and frameworks; and
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Dedicated and permanent government funding for supportive services and benefits for trafficking victims.
Strengthened State Sex Trafficking Law
In May 2009, the Minnesota Senate (67-0) and the Minnesota House (134-0) unanimously passed the “Bill for an Act to Combat Trafficking in Minnesota”. The governor signed the bill into law on May 21, 2009 backed by this strong bi-partisan message that Minnesota will not tolerate the sale of human beings for sex.
The amendments to Minnesota’s sex trafficking law, which took effect on August 1, 2009, will enable law enforcement and prosecutors to better hold the perpetrators of sex trafficking accountable. Specifically, the amendments to the law:
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Provide law enforcement and prosecutors with the ability to arrest and charge sex traffickers with higher penalties when an offender repeatedly trafficks individuals into prostitution, where bodily harm is inflicted, where an individual is held more than 180 days, or where more than one victim is involved;
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Increase the fines for those who sell human beings for sex;
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Criminalize the actions of those individuals who receive profit from sex trafficking;
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Categorize sex trafficking with other “crimes of violence” to ensure that those who sell others for sex are prohibited from possessing firearms; and
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Add sex trafficking victims to those victims of “violent crime” who are protected from employer retaliation if they participate in criminal proceedings against their traffickers.
While the amendments represent a step toward a paradigm shift, we must monitor the implementation of the law to ensure that prosecutors use it effectively to hold sex traffickers accountable for their grave human rights violations. In addition, we must monitor the Minnesota Sentencing Guidelines to ensure that they reflect the appropriate penalties given the statutory changes and also address the disparities in sentencing when juveniles are involved.
A Coordinated and Strengthened Community Response
In addition to the efforts of the coalition of organizations on the Statewide Human Trafficking Task Force that lobbied for and passed the amendments to Minnesota’s sex trafficking law, the U.S. Attorney’s Office for the District of Minnesota, the Sergeant Gerald D. Vick Trafficking Task Force, and several key members of the coalition have teamed up to make presentations around the state to attorneys, advocates, and the community. A number of organizations in the coalition have communicated about plans to better serve trafficked persons and promote prosecution and prevention, resulting in less duplication of efforts.
Awaiting Other Signs of a Paradigm Shift
Attorneys should carefully monitor the implementation of both the federal law and the Minnesota law. The federal Trafficking Victims Protection Act has a number of new standards, which may make proving “force, fraud or coercion” easier, however, only the prosecution of such cases will reveal whether this is true. Attorneys should also analyze whether the Minnesota law will protect those victims who fall through the gaps of the federal law and will hold traffickers accountable.
What Can Lawyers Do to Assist Victims and Hold Traffickers Accountable?
Lawyers called upon to represent trafficking victims should consult the American Bar Association handbook entitled “Meeting the Legal Needs of Human Trafficking Victims: An Introduction for Domestic Violence Attorneys and Advocates.” The handbook provides resources and practice pointers related to identifying trafficked persons, civil legal remedies, and comprehensive client care. The handbook does not specifically address the Minnesota law, however, it serves as a good starting point for attorneys representing trafficked persons.
Minnesota attorneys may also assist victims and hold traffickers accountable by helping to monitor changes in Minnesota’s law, participating in coalitions working to combat sex trafficking, seeking out training, and creating policies and procedures. In fact, the Sex Trafficking Needs Assessment recommended that attorneys:
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Participate in training relevant to effective prosecution of sex trafficking, and to identifying and assisting trafficked persons as defined by federal and state law.
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Ensure that legal and other types of assistance are provided to trafficked persons for the duration of any criminal, civil or other actions against suspected traffickers. These services should be provided equally and confidentially to U.S. citizens and foreign nationals and be sensitive to age, culture, language, sexual orientation and gender identity.
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Institute policies and procedures that ensure that trafficked persons, including those defined as victims under Minnesota law, are not detained, charged, or prosecuted for their involvement in unlawful activities to the extent that such involvement is a consequence of having been trafficked.
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Expand the use of task forces such as the Sergeant Gerald D. Vick Human Trafficking Task Force to include other communities in Minnesota, or create similarly organized, regionally-based task forces. The goal should be to create a network of professionals able to respond immediately to sex trafficking cases; communicate regularly about cases, good practices and obstacles; develop systems for data collection and sharing; and develop common prosecution methodologies, policies, and procedures for joint or multi-jurisdictional investigations among federal, state, tribal, and local agencies.
Working together, Minnesota’s legal profession can uphold Minnesota’s legacy of protecting women and children from violence. Sex trafficking is the second largest – and fastest growing – criminal industry in the world. In 2008, traffickers made $31 billion buying and selling humans. As attorneys, we have both the education and the tools to shift the paradigm and put an end to this grave human rights violation. Please help send the message that “Buying Sex Stops Here.”
United Nations Inter-Agency Project on Human Trafficking (2009), http://www.no-trafficking.org; Polaris Project, Human Trafficking Statistics (2009), http://nhtrc.polarisproject.org/materials/Human-
Trafficking-Statistics.pdf.
"And Then He Choked Me: Understanding and Investigating Strangulation" by Allison Turkel
The following is a summary compiled by The Advocates for Human Rights of the article. To read the full article,"And Then He Choked Me: Understanding and Investigating Strangulation" by Allison Turkel, please visit the National Center for Prosecution of Child Abuse's Update, available here.Strangulation continues to be a serious threat to the lives of women and children. In fact, strangulation often foreshadows the escalation of violence and even homicidal intent. Understanding, investigating, and preventing strangulation is complicated by the fact that legal standards are changing, investigations are often inadequate, and prevention is hampered by minimization of strangulation. Strangulation accounts for ten percent of violent deaths in the United States according to a 2001 study published in the Journal of Emergency Medicine. From 1989 to 2005 in Minnesota, thirteen percent of all women murdered by an intimate partner were strangled to death and seventeen percent of all children murdered by a family member were strangled to death according to the Minnesota Coalition for Battered Women’s 2005 Special Femicide Report. In her recent article "'And Then He Choked Me:'" Understanding and Investigating Strangulation," Allison Turkel, senior attorney and Chief of Training for the National District Attorneys Association, discusses the dangers associated with strangulation, investigating strangulation, the state of the law related to strangulation, and the role of prevention in enforcement and prosecution of strangulation. Compiled from: 'And Then He Choked Me:' Understanding and Investigating Strangulation, Allison Turkel, National Center for Prosecution of Child Abuse, National District Attorneys Association, 2007.
A University Professor Tells How She Uses STOPVAW in the Classroom
An Interview with Sharon Rice Vaughan 1. What courses do you teach at Metro State? I teach in the College of Professional Studies, Human Services Department, which includes a major and minor in Community Violence Prevention (CVP). I teach the three CVP core courses: Violence: Origins and Explanations; Violence: Individual, Community and Global Responses; Community Violence Prevention Group Internship (combined field and study); Sexual Assault and Domestic Violence and Human Services (taught but not yet approved); and The Family: Racial, Class and Gender Dimensions. In the Psychology department I teach Battered Women: Historical and Social Perspective, and a seminar, Theories of Violence Against Women. 2. In which of these courses do you use the StopVAW website? I first used it in the ….Responses (to violence) class. Then I used it teaching Sexual Assault and DV and HS on a trial run. I am now using it as a text in the theory seminar on violence against women. Before the website and along with it, I have asked guest lecturers from MAHR’s Women’s program speak to the violence and battered women’s classes. 3. How do you use the Stop Violence Against Women website in those courses? I first used it as a web assignment for students to look up, read Explore the Issue for one form of violence, choose a country, write a one page synthesis and report to the class what was found to be most compelling and related in some way to other readings or topics. This was intentionally a broad introduction to human rights as an approach to violence prevention, specifically violence against women, and the role of law in defining human rights. This semester I am concentrating on the initial Explore the Issue section for the excellent material on history and theory. I’m using it as a basic tool that integrates theory and practice. As the class looks at groups of theoretical approaches to violence against women, we can use the website as a foundation for what works to ground effective legal remedies, and in general, to make battered women safe, to intervene and prevent violence against women. All of this is a basic view that counters an underlying victim-blaming stance of so much historical and current social policy. It is useful to raise awareness of the relevance and the meaning of human rights in the stopvaw countries as well as in the U.S. This awareness is one approach to ethical and professional issues in the human services. 4. Which sections of the website do you find most helpful? No specific sections. The general background and the topics organization of the website; the overall presentation of ways that violence against women is a human rights issue (a very radical notion for some); the easy access to more specific information; the specific breakdown of forms of violence against women; the grounding of human rights conventions and resolutions; the reflection of the commitment of women and men in generally unfamiliar countries to uphold international law, on the US Constitution; the way that the topic of human rights is a basic approach to violence prevention awareness and activism. 5. Do you have any recommendations for educators like yourself on teaching about violence against women? I’d like to learn from other instructors who use the website. I think it is a really important and incredible tool and that I’m sort of stumbling along and could do so much more.
Advocates in Minnesota Challenge Myths regarding Domestic Violence Orders for Protection
In a recent issue in Bench & Bar, a monthly publication for Minnesota lawyers, an article was published entitled, “Orders for Protection: When the Shield Becomes a Sword.”[1] The authors claimed that the domestic abuse order for protection was being misused, and posed these important questions: “Is it better to issue an order against an innocent person rather than risk not granting one against an abusive person? Can we prevent misuse of this tool or is that too much of a risk when someone can be seriously hurt, or, worse, killed?”[2] Minnesota law allows the court to issue an ex parte order for protection if there is an “immediate and present danger of domestic abuse”[3] and to grant such “relief as the court deems proper,”[4] including restraining the respondent from abusive conduct and excluding him or her from the home and from the petitioner’s workplace.[5] The petitioner must request a hearing to obtain additional relief, such as temporary child custody or child support.[6] The hearing must be held within 7 days.[7] There are detailed procedures in the law requiring notification to the respondent of the upcoming hearing, and provisions for continuance if the judge finds that either party shows good cause.[8] The authors of the article stated that “…the temptation to misuse the Domestic Abuse Act can be enticing…saying that one party is abusive is a powerful allegation…parents accused of such behavior frequently lose in their other court battles over their children or their property.”[9] They assert that for truly dangerous individuals, the order for protection “probably does little good.”[10] The authors conclude that there should be better resources at the courthouse for the respondents, and, perhaps, a “less restrictive” order, with “shorter-term consequences.”[11] In response to this article, a number of domestic violence experts wrote a letter to the editor of Bench & Bar, which is reprinted below: To the Editors: It is with great concern that we write to respond to the article entitled “Orders for Protection: When a Shield Becomes a Sword”, LXV Bench & Bar, March 2008. This article perpetuates a number of myths about orders for protection and the circumstances under which they are granted. The authors bemoan the fact that a person can be removed from their home “all on the words of another.” (p. 28) The words of another are evidence in civil and criminal court proceedings and are not unique to orders for protection. They also assert that the ex parte protection order presents unique problems and that “nowhere else are we allowed to say someone is guilty until proven innocent.” (p.28). The availability of this type of relief is not unique. In both the state and federal courts, temporary restraining orders, without notice to the adverse party are available if there is immediate and irreparable loss or injury. Here the petitioner must show immediate and present danger—no less a standard. Moreover, before an ex parte order is issued, sworn allegations are reviewed by a judge who makes a determination if the requirements of the statute are met. The ex parte orders are not granted without careful judicial review. Respondents are entitled to a hearing in all cases and a continuance, if requested by respondent under the statute, is likely to be granted. The authors contend, without citing any authority, that “parents accused of such behavior [abuse] frequently lose their court battles over their children.” (p. 29) In fact, studies indicate that domestic violence victims do not gain tactically from raising abuse allegations. Research shows that fathers who batter their intimate partners are more likely to contest custody. (American Psychological Association, Violence and the Family 1996). Research further shows that mothers who experienced domestic violence were no more likely than a comparison group to be awarded custody and that fathers were rarely denied visitation. (Mary Kernic, et al. Children in the Crossfire 11 Violence Against Women 991, 1013, 1014 2005). Another assertion in the article is that for the truly dangerous an OFP probably does little good. Leaving aside their erroneous assumptions about who is truly dangerous, while studies show a range of rates of violation of protection orders, research supports the conclusion that obtaining a protection order is associated with reduced subsequent violence. (Carol Jordan, Intimate Partner Violence and the Justice System, 19 J. Interpersonal Violence 1412, 1427, 2004). It is regrettable when myths replace facts. It is no doubt true that any legal process can be misused, however, the legal process for a protective order is similar to many legal processes: judges evaluate evidence, make determinations as to credibility, and then issue findings of fact and orders. Women do not seek protection from the courts lightly. Research shows that when women seek a protection order it is often after serious violence. (Id. at 1423).If the authors believe that judges are not adequately evaluating evidence and are not making appropriate determinations, then they can appeal an erroneous order. To suggest that there is widespread misuse of this process without any evidence beyond asserting it, does the court system and victims of domestic violence a great disservice. - Beverly Balos, Clinical Professor of Law, University of Minnesota Law School
- Liz Richards, Minnesota Coalition for Battered Women
- Caroline Palmer, Minnesota Coalition Against Sexual Assault
- Jean Lastine, Central Minnesota Legal Services
- Denise Gamache, Battered Women's Justice Project
Lolita Ulloa, Hennepin County Attorney’s Office, Victim Services Division- Domestic Abuse, Service Center
The Advocates for Human Rights supports this response to the Bench & Bar article.
[3] Min. Stat.518B 01 Subd. 7 [6] Min. Stat. 518B 01Subd.7 (e) [7] Min. Stat. 518 B 01 Subd.5 © [8] Min. Stat 518 B 01 Subd. 5(e) [11] Capistrant and Wong, ibid no. 1
American Bar Association Rule of Law Initiative’s CEDAW Assessment Tool Report for Moldova
The American Bar Association Rule of Law Initiative’s CEDAW Assessment Tool Report for Moldova (PDF, 144 pages) (Romanian; PDF, 160 pages) measures the degree to which Moldova’s legal framework promotes and protects the rights of women as required by the United Nations Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), and the degree to which women are accorded these rights in practice. The report includes concrete recommendations for future action to improve the status of women and reflects concerns raised by Moldovans who were interviewed for the assessment. It also identifies where Moldova’s legal obligations under CEDAW can be directly used to foster changes in existing laws and practices. The report found that women in Moldova experience discrimination in all fields – employment, finance, the justice system, health care and within the family. Of particular concern are high levels of violence and abuse within the family that remain unrecognized as a serious social concern and play a major role in reinforcing inequality. The additional workload women acquire when they enter the workforce, without men’s corresponding increased participation in caring for children and the household, is another critical factor. Much of the field research for the report was conducted by Winrock International, New Perspectives for Women. The CEDAW Assessment Tool Report for Moldova is one in a series that ABA Rule of Law Initiative has produced in various countries throughout the region. Ms. Lori Mann, an attorney and international gender expert, authored the report. The views expressed in the report have not been approved by the House of Delegates or the Board of Governors of the American Bar Association (ABA) and, accordingly, should not be construed as representing the policy of the ABA or any of its entities. Funding for the report was made possible by the generous support of the American people through the USAID, with additional financial support from the Organization for Security and Co-operation in Europe (OSCE) Mission to Moldova. For more information about the report and the CEDAW Assessment Tool generally, please contact Gender Issues Focal Area Co-Coordinators Wendy Patten at <wpatten@abaceeli.org> and Jennifer Denton-Jafari at <jdenton@abaceeli.org>.
An Important Victory
By Genoveva Tisheva, Managing Director, Bulgarian Gender Research Foundation The Bulgarian State Gazette, issue #27 from 10th of April 2009, announced a number of amendments made to the Criminal Code. An important amendment has been achieved in the sphere of protection against domestic violence. The protection measures have been strengthened with the amendment of Article 296, paragraph 1 of the Criminal Code, by introducing a punishment for failure to comply with the order for protection measures against domestic violence issued by the court, based on the Law against Domestic Violence. Criminalizing the violations of the orders is an extremely important guarantee for the effective protection of the victims of violence. This amendment of the Criminal Code was demanded last year by the workgroup for amendments to the legislation against domestic violence, which is part of the Ministry of Justice. The nongovernmental organizations who work in this sphere have been represented in the workgroup by the Bulgarian Gender Research Foundation (BGRF). In addition, all of these organizations have established an Alliance against Domestic Violence. They all stated clearly that such an amendment is needed, deducting this from the monitoring which had been done, and from the implementation of the law. In March 2008, a report prepared by the Bulgarian Gender Research Foundation and the American organization The Advocates for Human Rights described the experience, opinions and demands of the NGOs and the responsible State institutions – the police and the courts which are concerned with the implementation of the law. The lack of explicit criminalization for not complying with the protection orders in the Law against Domestic Violence was emphasized as one of the major obstacles to the effective implementation of the law. The NGOs' position was actively advocated in the Ministry of Justice and now, a year later, it is already a fact. The help and the understanding of the representatives of the Council on Legislation of the Ministry of Justice were essential, and though there are more things that can be improved, this amendment is undoubtedly a victory for civil society. At present, we all witness how a joint effort and successful lobbying can gain positive results. Criminalizing the violation of protection orders was proposed by the BGRF and the experts who worked for the foundation when the first draft for the Law against Domestic Violence was proposed in 2000-2001, but during that time, the State representatives didn’t realize the importance of the amendments in this law. Now, eight years later, the necessity of such an amendment in the Penalty Code was recognized, mainly to have greater effectiveness result from the actions of the police and the court. The most important thing, however, is that this new order will secure the victims of domestic violence; it will help them to be less afraid, because the State would be at their side, as there are stricter sanctions for the aggressor. What follows next are the amendments in the Law against Domestic Violence, which representatives of NGOs and Ministry of Justice have been preparing since last year. BGRF and the NGOs from the Alliance against Domestic Violence insist on regular funding from the State for the services for protection and prevention from domestic violence which have been provided and implemented by the NGOs for more than 10 years. The Ministry of Justice is behind this idea but there are obstacles from other institutions which find the funding mechanism unconvincing as it gives funds to nongovernmental organizations that work with domestic violence issues. Our goal is for constructive understanding on the part of the State, so that it will adopt the amendments in the Law against Domestic Violence.
An Overview of the International Human Rights of the Girl Child
The Advocates for Human Rights discusses the human rights of the girl child. Cheryl Thomas, Director of the Women's Human Rights Program, and Rosalyn Park, Staff Attorney, provide an overview of the relevant international law and the prevalence and types of human rights violations against the girl child. They also describe issues relating to the girl child in the context of The Advocates’ international work. This presentation is part of a bi-monthly children's human rights speaker series hosted by The Advocates for Human Rights and Faegre & Benson LLP. Please click here to watch the webcam session (50 minutes).
AWID Presentation: "New Tools for Changing Old Strategies in Combating Violence against Women"
Cheryl Thomas is the director of the Women’s Human Rights Program at The Advocates for Human Rights. She began by describing the STOPVAW website forum. STOPVAW is a new tool, a new technology instrument which was created in collaboration with many partners. The website, at www.stopvaw.org, was developed as a forum for information, advocacy and change. It is a tool for the promotion of women’s human rights in Central Asia, the Caucuses, Central and Eastern Europe, the Balkans, Mongolia and Kosovo. The website features thirty countries with information on advocacy and tools to end violence against women. Minnesota Advocates for Human Rights’ Women’s Program began working in this region in 1993. There were many new NGOs in the transition period from communism that were new to violence against women work, but were nevertheless very clearly focused on ending violence against women. They had identified that this was a priority for them. The one common hurdle for all of them in developing strategies to end violence against women was the lack of information. The lack of historical information had effectively cut them off, and they wanted to access information. So, in the 1990s, The Advocates took on a role to respond and research failures, successes, failures and model laws. The goal was to provide information at the touch of a finger to the women who wanted it in a more efficient way. It is far more effective than flying people out there or mailing them documents. UNIFEM, OSI and the contributions of volunteers in Minnesota, the U.S., and around the world have all contributed to this website. In addition, the technology to host this site was donated by Urban Planet. These contributions have made this website happen. There are over 2,000 pages of information and over 7,000 links. There are four substantive sections--domestic violence, sexual assault, sexual harassment and trafficking in women. Each of these move further in-depth to four additional subsections, including Explore the Issue, Research and Reports, Law and Policy, and Training Modules. Each of the four main sections has an analysis introducing the subject. For example, under the domestic violence section, the webpage discusses the risks associated with domestic violence, model laws, and sample police protocols. Women in the region began to want a regional network to communicate their practices and what they are learning. They also wanted to create a support network. In 2003, the Network Women’s Program of OSI developed, with The Advocates, the National VAW Monitor Program. With us today, we have two Monitors: Vanja Mikulic from Montenegro and Yuliya Gureyeva from Azerbaijan. They collect information and are involved with the evolution of the site to more clearly meet their needs as they define them. Their objectives are to get information, publish this information and expose the situation to the entire world. Now, we have a great need to turn this into a multilingual website. We want to use it as an internal tool for policy makers to strategize on how to use it as an advocacy tool. In terms of successes, the original purpose has been met. There has been a growing response for best practices. The website has received over one million hits or 40,000 per month. It is being used as a tool for information exchange. For example, the Serbian Monitor used it to disseminate information about a new domestic violence law. The Hungarian Monitor, in turn, used that information to elicit interest from the media. She is also using the website to pressure her own government in Hungary by using the site to expose recent CEDAW cases. There are so many laws in the region that are being passed. For instance, the entire history of how Bulgaria passed its new domestic violence law is now on the site. The advocate who wrote this history, Genoveva Tisheva, gets inquiries about getting a law passed by advocates in other countries. On the other hand, the challenges are many. The Monitors are all in a situation with limited resources. The Domestic Violence section was written three years ago, and there have been many changes since then. Translation is another challenge, and there will be many more. But the many successes of the website continue to energize us. Eva Foldvari, moderator of the panel and Senior Program Manager of the Network Women’s Program of the Open Society Institute said, it has been a challenge for OSI to create a network of Monitors who are feeding the website and facing lots of possibilities with different ways for this website. It is a learning process for all. Vanja Mikulic, the Montenegro National VAW Monitor, spoke next regarding the Montenegro National VAW Monitor experience. There are two Monitors in Montenegro, myself and Irena Milatovic. Her NGO, SOS Hotline, is the first female NGO in Montenegro and was established eight years ago. They run the SOS Hotline four hours per day and provide free legal and psychological help. They also act as a link between the victims and institutions. A few years ago, they started running trainings and succeeded in establishing five interdisciplinary teams in five main cities. They participate in drafting national policies. The SOS Hotline attorney was the coordinator for establishing the national plan of action. They also drafted a rulebook for police in domestic violence cases and monitor institutional behavior. SOS Hotline also noticed that no one was collecting data in the region, so they also began to collect statistics and data. In terms of achievements, they have strengthened cooperation with the Governmental Gender Equality Office through joint work on this project. This has been one of their best achievements, because they succeeded in increasing cooperation with the government office and promoting the site in both the NGO sector and governmental sector. They collect data at two levels—the NGO and government. They also strengthened cooperation with women's NGOs in Montenegro in order to act jointly through the Informal Women’s Network. As a result, they have increased the amount and quality of information out there, as well as raised the level of public awareness. They have created conditions (information and instruments) for advocacy to prevent serious violence against women. The site is used as an advocacy tool, for example to monitor enforcement of an article in the criminal code that is used to punish acts of domestic violence. They published a Watchdog Report looking at the implementation of this article in the judiciary, the Ministry of the Interior, and social work institutions in nine cities. They published this data in the Watchdog Report and posted it on STOPVAW. The media showed increased interest and wanted to know more. They were called by international organizations, such as OSCE and USAID, who wanted to know more about it. All of this resulted in strengthening cooperation by government institutions. Because this information was published worldwide, the government felt insecure and asked to cooperate and create a forum for the judiciary, the Ministry of the Interior and social work institutions. The website has also been successful in regional linking and cooperation. Four countries in the Balkans—Serbia, Montenegro, Bosnia and Croatia—jointly translate the STOPVAW newsletter and publish it in their own language. There are also challenges. Regional linking and cooperation is one. Also, they need to maintain and strengthen cooperation with women’s NGOs. they need to influence strategies to combat violence against women, and one way is to create a database necessary for any initiatives. They promote the site at different levels—to the public, within the NGO sector, within governmental bodies/organizations and to international organizations. SOS Hotline Podgorica also promotes the website in every brochure it produces. Translating the site from English into the native language is also another challenge. It is hard for women to use the site because it is in English, but for now, they can use it as a tool to send information out of our own country. As soon as we succeed in translating the main pages, they can reach more women. But thus far, they have already reached many women in their country. Yuliya Gureyeva, the National VAW Monitor forAzerbaijan, spoke next. She began by saying she was doing gender studies and needed to collect a lot of information for her research. She found it was difficult to find information on Azerbaijan while abroad and realized how good it would be to have such information on women in Azerbaijan on the Internet. Upon returning home, she discovered that Azerbaijan Gender Information Center launched such a website and joined this organization to assist in its development and expansion. Yuliya introduced her organization, the Azerbaijan Gender Information Center (AGIC). It was started in 2002 with the financial support of Open Society Institute –Azerbaijan and is the first informational, analytical, bibliographical and documentation center of the women’s movement in the territory of the South Caucasus. The AGIC project is an example of a successful coalition of the Azerbaijan Women Organizations: - AREAT Research Center
- Association of Creative Women, Baku
- Azerbaijan Association of Organizational and Technical Development, Baku
- Mingechaur Women Youth Center “Shams”
- Hudat Center of Youth Programs Development
The purpose of the AGIC is to create and maintain the National Gender Portal in three languages (Azeri, Russian, English) and to develop the national strategy in the field of gender and information communicative technologies. The AGIC website receives about 70 visitors every day from Russia, Azerbaijan, Ukraine, Turkey, U.S., Germany, France, Canada, Belarus, Kazakhstan, Great Britain, Israel, Iran, Georgia, Australia, United Arab Emirates, Poland, Greece, etc. There are 365 subscribers to the newsletter from CIS countries, as well as Latvia, Lithuania, Estonia, US, Israel, Turkey, Germany. In terms of achievements, AGIC is a key point of the information flow on Women’ Issues in Azerbaijan. AGIC had become the point of cooperation between Eastern Europe and Central Asian Women’s Organizations. AGIC is a source of information for international organizations, and the UN report on indexes of human development in Azerbaijan 2005 is prepared using AGIC’s materials. AGIC has four main directions of networking: - News (Eastern European Net www.REWIND.Net; Central Asian Net www.gendergateway.uz , Turkey www.womensenews.org )
- Violence against Women (www.STOPVAW.org)
- Peace building (Coalition 1325, Women’s Appeal for Peace Journal)
- Development of Women Businesses (network of business women in Azerbaijan, to broaden in the future to the Central Asia)
They have received feedback from others about their work: “I am working on the project on involvement of women to the non-violent conflict resolution in Kyrgyzstan, Tajikistan and Uzbekistan. We women have to exchange our experience, gain new knowledge and skills, and your website is a crucial tool to reach these goals.” Isabekova Zeinura, Foundation For Tolerance International, Kyrgyzstan. “THANK YOU for information you're regularly sending to me! They are very (!) interesting and extremely helpful.” Azer S. Hasanov, Regional Development Officer, Oxfam, Tajikistan. There is still a digital divide between regional and peripheral NGOs in Azerbaijan and between “Advanced” and “Beginner” NGOs. Future plans include: close cooperation with mass media for joint activities within 16 Days Against Violence Campaign, preparation of the series of TV programs on Violence against Women, translation of the STOPVAW website into Azeri language and website presentations in the regions of Azerbaijan, and the creation of a regional network to exchange experience on drafting and lobbying Violence against Women Law in Azerbaijan. AGIC believes that new informational technologies, such as Internet, can and should be used for women’s benefit to make difference and assist in addressing gender-based violence issue. These new tools open wider opportunities for networking, exchange of information and experience and raising awareness among wider public and state officials. The AGIC website is at www.gender-az.org. Lin McDevitt-Pugh, the Program Director at the International Information Centre and Archives for the Women’s Movement began by remarking how this had been a very interesting presentation because she was an information specialist. Her passion is to get information out in modern ways, through the internet, as well as through methods like Juliet’s, using other technologies. Lin stated that she works in a 70-year old organization, which began as the place where the women’s suffrage movement collected its documents and made them available to a broader public. They collected piles of information and brought them home. The library evolved into a repository of the women’s movement in the Netherlands and around the world. The IIAV was one of the first archives and libraries in the Netherlands to use the Internet to make its information accessible. Lin organized the 1998 Know-How Conference of 380 women’s information specialists from 86 countries, in Amsterdam (the 2006 Know How Conference will be held in Mexico in August 2006. It was an opportunity to learn, especially from people whose countries did not have libraries, about how they were using information on the ground. Many different approaches are used, from street theater to audio to publication in magazines and newspapers. As program director she has been privileged to work with people around the world to develop new ways of using technical and theoretical knowledge to make a difference for women around the world. She does this by working with groups of women that are involved in NGOs, and finding ways to combine the strengths of the women into an information and communication strategy. An example of such an activity is the Women’s Information Technology Transfer (www.witt-project.net). WITT trains Eastern European women to use technology to advance the position of women. The group is made up of leaders women’s communication and activist organizations in 6 countries, and together they have developed a training program, a website for use during trainings. To know exactly what training is needed, the WITT Focal Points (presently there are Focal Points in Bulgaria, Czech Republic, Serbia and Montenegro, Macedonia) carry out a deatiled needs assessment of the women’s ngos they will be training. This provides an important insight not only into what the focus of the training must be, but also helps the group design the website in such a way that the groups they are working with can use it. The IIAV operates a database with up-to-date information on where to find women’s information organizations throughout the world— at present 400 organizations in 120 countries. The URL is www.iiav.nl/mapping. The database is also available as a CD-ROM (for more information, write to pr@iiav.nl),. It is updated regularly and its purpose is to create access to the vast wealth of information that is available in the world on the position of women. Challenges include keeping the possibilities within financial limits, finding finances and on the practical level, communication is always a challenge. Language, tradition, methodology differ immensely.. Another challenge is to ensure that, as an information organization, you are ahead of the needs curve and are preparing the projects the potential reader needs, before they know they need them. The IIAV is presently establishing the European Sexuality Resource Center. Its purpose is to be both a service for the customers of the IIAV, who need more than what the IIAV can offer in their search for resources on sexuality, and a service for people who not yet found their way to the resources on sexuality available at the IIAV. The project will be a cooperation at one level between key libraries in the Netherlands and HIV/aids organizations, gay rights, anti violence against women, reproductive rights and reproductive health organizations. Europe is bigger than the Netherlands, which is a tiny country. At a second level, the Dutch cooperation will partner with European networks, thus providing a service in many languages to many Europeans. Juliet Were Oguttu is a Programme Officer with Isis-WICCE. She spoke about Women’s activism in the face of armed conflict and the role of Information Communication Technologies (ICTs). Isis-Women’s International Cross Cultural Exchange (Isis–WICCE) is a global action-oriented women’s organisation that emulates “Isis”, the ancient Egyptian goddess of ‘Wisdom, Creativity and Knowledge’ to promote justice, equality and mutual relationship between women and men. Isis-WICCE was founded in 1974 in Geneva, Switzerland with the purpose of promoting cross-cultural exchange of skills and information to contribute towards women’s transformation. The organisation relocated to Africa in 1993, to tap the voices of African women, while linking their issues and concerns to the debates and campaigns taking place at the international level. Through its values of Justice, Equality and Fairness, the organisation envisions an informed society that values and ensures women’s rights, in order to realize their capacities and potential. Isis-WICCE’s mission is to promote justice and empowerment of women through documenting violations of women’s rights and facilitating the exchange of skills and information to strengthen women’s capacities, potential and visibility. Isis-WICCE’s framework of operation includes a human rights approach, as inspired by the 1993 Vienna Declaration and Programme of Action, as well as a results-based approach, as directed by the 1995 Beijing Declaration and Platform for Action. Isis-WICCE decide to focus on the issue of armed conflict given that Africa, as a continent, had been marred by armed conflict for several years. And whereas alot of documentation about these conflicts had been documented, there was no mention of the role of women in armed struggles, as well as the violations women encountered in the process. Isis-WICCE therefore set out to provide gender disaggregated data through the documentation of women’s realities. The aims were to allow women to tell their stories about war, provide development workers with the correct data for better planning for women war survivors, to expose the atrocities and create awareness about the need for accountability and redress to women’s plight. Isis-WICCE used a variety of tools to investigate and document what happened to women during armed conflict, including tape recorders, video cameras, and still cameras. Thus, they were able to provide both audio and visual testimonies of the physical, mental, psychological and economic consequences of war on women. Through their work, they documented the effects of sexual violence on women’s lives, which included ruptured uteruses, vasico vaginal fistulae, sexually transmitted infections; the loss of homes and forced displacement, lack of appropriate clothing and other basic necessities of life, as well as impoverished living. Maiming and mutilation also took place during armed conflicts. One example that Juliet provided was the chopping off of women’s lips as a punishment due to the stereotype that “women talk too much.” Perpetrators also targeted the wives of administrative officers by amputating their limbs. Not only was there great loss of life, but others were also forced to commit murder: “While in captivity, even shy girls were forced to murder those condemned to die. They had to kill while others were looking on.” Gang rape was common, and one woman was gang raped by 21 men; she finally died of HIV/AIDS. Girls and women experienced other forms of sexual abuse and harassment: “Later all the girls that were abducted and defiled or raped were married off to rebel leaders or used for general sexual service to rebels. Some commanders were reported to have 4 to 5 wives while the rebel leader himself had over 30 wives at any one time.” Consequently, many women suffer from reproductive and health problems: “…. I was 30 years old… six soldiers found me hiding and raped me one after another …. This lasted for about three hours. I could not talk. My relatives discovered me later, soaked in blood, urine, feces and men’s semen. I was torn everywhere and developed backache. Before I recovered, I was again gang raped at a military checkpoint. This time 15 soldiers raped me. This left me shattered. I was once again torn to an extent that I could not control my biological functions. The cervix was dislocated and the uterus started hanging out. … I have to push it back in. My vaginal part and anus are separated by just a thread of flesh and when I get diarrhea, I defecate from both the front and behind. Oozing of water and blood has continued up to today despite the medical treatment I obtained. The fluid is sometimes mixed with pus …. I use a small pad. The men say I am not fit for them and hence I do not get satisfied … I cannot deliver without professional assistance.” Women lived in areas that were isolated with very poor infrastructure and had no form of access to any communication channels. Some, due to the traumatic experiences, poor health and high level of poverty, could not even go to church or any village meetings. Juliet noted that their engaging in activism in armed conflict was sparked due to their experience talking to the women and listening to such shocking and depressing stories. It gave them the passion to act and mobilize other parties to do something immediately. They packaged the findings using different ICTs to attract different actors to respond to the needs of survivors of conflict. The medical professionals came on board after listening to a fifteen-minute audio tape of extracts of women’s testimonies relating to the sexual and reproductive health problems. As a result, the doctors carried out a medical intervention where women and girls were able to access treatment and surgery. They, in addition, requested Isis-WICCE to develop a video documentary on ‘Women, War and Trauma’ a tool they have utilised to raise awareness amongst the Ministry of Health decision makers on the impact of trauma on survivors of war. Isis-WICCE also involved government machinery to launch the findings and commit themselves to specific actions. Government machinery joined Isis-WICCE in a fact finding mission and, as a result, provided building materials for survivors of war who had pathetic shelter. Isis-WICCE involved survivors to justify the findings and allow them to tell their own stories as “a shame them approach.” As a result, the media picked up on the stories and continued the debate. Mission representatives also became involved. The Ambassador of the Republic of Germany in Uganda addressed the crisis of the basic needs of internally displaced persons by providing blankets, saucepans, drugs, plates, etc. Isis-WICCE has a long-term strategy to involve bilateral agencies and alternative mediums of communication. Isis-WICCE, in collaboration with UNIFEM, produced ‘A Lingering Pain,’ an ICT tool targeting behavioral change. They also used radio talk shows at the local and national levels, as well as radio drama skits, to sustain the debate. They used dramatic performance to take the message to those who cannot access radio and television. They electronically packaged information to expose the atrocities to the rest of the world, to expand the advocacy constituency to influence at the global level, and provide information to other key actors through the Isis-WICCE website (http://www.isis.or.ug) and listserves. Isis-WICCE also works to influence the International Criminal Court. ICC officials had claimed that women in Northern Uganda were not ready to testify. Isis-WICCE provided a video to WIGJ of women testifying, which prompted WIGJ to organize a fact-finding mission. They used video recording to capture the survivors’ stories. They developed a DVD clip, “Synergy Moving the Agenda of Gender Equality.” This was evidence of women’s efforts to advocate for women’s justice and was shared with court officials. The ICC has since then included women in their evidence collection. Isis-WICCE has received awards in recognition of its work. It received the Civil Society Exhibition Gold Award (2000) for having ably linked its activities to policy issues. It also received the Gender and ICT Award (2003) from the Global Knowledge Partnership and Association of Progressive Communications for its unique approach to using ICTs in mobilising resources to address the concerns of women in situations of conflict. There still remain many challenges: - Collection of many audio and visuals which are still not yet processed
- Communication tools are very expensive to maintain and acquire
- Poor infrastructure
- Lack of funding
- Poverty
- Language
- Illiteracy
- New, emerging conflicts
The way forward will require consideration of the numerous gender issues that affect women to access, contribute and use ICTs for development. There must be an opportunity to choose what technology to use, especially for the poor, isolated and illiterate. There must be some consultations with these vulnerable people on how they would like to communicate, to whom and what they would like to communicate. It is only through this approach that they will be able to develop their own content that will be relevant to their needs. Juliet ended by stating that, the resources of the global information society seem to concentrate on access to new technology without addressing the gender issues that continue to hinder the marginalized women from accessing the technology for their empowerment. For women, there is still a lack of skills, affordability, appropriateness in terms of the type of technology and content, language, etc. References for Juliet Were Oguttu’s presentation: - A Lingering Pain … her Experience; A video documentary. Isis-WICCE, 2002.
- Arms to fight Arms to protect:Women speak out about conflict. London:Panos, 1995.
- Behind the violence:The war in Northern Uganda. By. Zachary Lomo and Lucy Hovil. Institute for Security Studies, March 2004.
- Documentation of Teso women’s experiences of armed conflict, 1987-2001; An Isis-WICCE Research Report, 2002.
- International Conference of the Great Lakes Region : Regional Women’s meeting; Report of the Technical Meeting; June 7-8, Nairobi, 2004.
- Jane Barry. Rising Up in Response:women’s Rights Activism in Conflict. Urgent Action Fund, 2005.
- The short term intervention of the psychological and gynaecological consequences of armed conflict in Luwero:An Isis-WICCE Research Report, 1999.
- Women’s Experiences of Armed Conflict in Uganda:Luweero District, 1980-1986; An Isis-WICCE Research Report, 1998.
- Women’s Experiences of Armed Conflict in Uganda, Gulu district 1986-1999. An Isis-WICCE Research Report, 2001.
- Working with Conflict: Skills and Strategies for Action. U.K Zed. Bks, 2003.
Barriers to Justice for Battered Mothers and Their Children
By Mary C. Ellison, Staff Attorney, The Advocates for Human Rights The purpose of this article is to alert those in CEE/FSU countries where domestic violence laws are being drafted and implemented to the interrelated issues of domestic violence and parents’ relationships with their children. It is important for government agencies and non-governmental organizations, legislators, judges, prosecutors, police, child protection workers, and all those involved in drafting and implementing domestic violence laws to recognize these issues and ensure that battered mothers and their children are protected. Domestic violence, as used in this article, is defined as a pattern of power and control by one intimate partner over another through different forms of abusive, coercive and threatening behaviors. Women who are both victims of domestic violence and mothers find themselves in a complicated and difficult relationship with abusers who are also the fathers of their children. Domestic violence victims may seek orders for protection, divorce, child custody and/or visitation, and may face action by the state to protect their children from abuse or neglect. According to two scholars, for couples with domestic violence in their history, “the probability of negative emotions and escalating conflict not only makes interacting uncomfortable…it also renders it dangerous because of the often volatile disposition of batterers.” From Tubbs, Carolyn and Williams, Oliver, Shared Parenting after Abuse, in Parenting by Men Who Batter, 19, 21 (eds. Jeff Edleson and Oliver Williams, 2007). The conflict, inherent danger and challenging nature of ending a relationship where there has been domestic violence necessarily impacts the children of that relationship. From Tubbs, Carolyn and Williams, Oliver, Shared Parenting after Abuse, in Parenting by Men Who Batter, 19, 21 (eds. Jeff Edleson and Oliver Williams, 2007). Children are not only affected by witnessing the domestic violence itself, but also when one or both parents may seek custody, visitation rights, child support, or face inquiries from child protection workers from the legal system. Battered mothers and their children face numerous barriers to justice in the implementation of laws on child custody, visitation, child support, and child protection. Statistics demonstrate that both women and their children experience harm either as the victims of domestic violence or witnesses to it. International human rights law clearly states the rights of women and children to be free from violence, as do many national and state laws. However, barriers in the laws themselves or in the implementation of custody, visitation, child support, and child protection laws further harm battered women and their children. In addition, stereotypes, prejudicial attitudes, and myths often reinforce the barriers. The result is that women and children who have experienced or witnessed domestic violence are often re-victimized by the very legal systems meant to protect them. Governments must break down these barriers by addressing and correcting the faulty assumptions in laws and legal systems, and by developing best practices and models to assist victims of violence and their children gain real access to justice. Government officials and advocates in CEE/FSU countries who are beginning to address domestic violence should take note of the issues, best practices, and ways in which laws and legal systems on child custody, visitation, child support, and child protection are inextricably connected to laws on domestic violence. Laws and legal systems must protect women and children not further re-victimize them. Statistics on Violence against Women and Children According to the Family Violence Prevention Fund (FVPF), one in every three women in the world has experienced sexual, physical, emotional or other abuse in her lifetime. From Heise, L., Ellsberg, M. and Gottemoeller, M., Ending Violence Against Women, Population Reports, Series L, No. 11., December 1999. The United Nations Secretary General reports that “physical violence inflicted by an intimate partner” is the most common form of violence against women in the world. From Unite to End Violence Against Women Fact Sheet, United Nations Secretary General’s Campaign, United Nations Department of Public Information (DPI/2498), February 2008. The World Health Organization (WHO) reports that in forty-eight surveys from around the world, 10-69% of women stated that they had been physically assaulted by an intimate partner at some point in their lives. The WHO also reports that studies from a range of countries show that 40-70% of female murder victims were killed by an intimate partner. In 2006, UNICEF estimated that between 133 and 275 million children witness domestic violence. From Behind Closed Doors: The Impact of Domestic Violence on Children, UNICEF (2006). Domestic violence also makes children more likely to suffer harm or be victims. From Tubbs, Carolyn and Williams, Oliver, Shared Parenting after Abuse, in Parenting by Men Who Batter, 19, 22 (eds. Jeff Edleson and Oliver Williams, 2007). Both the likelihood of domestic violence against women and children, and the prevalence of child witnesses to it make it imperative to address the right to be free from violence in all its forms, and to ensure that this principle is embodied in the law and legal systems of each country. International Human Rights Law Protects Women and Children from Violence International human rights law enshrines the fundamental right of women and children to be free from violence. In fact, all human beings have the rights to life, liberty, and security of person; freedom from torture; equal protection under the law; and an effective remedy under international human rights law. Human rights advocates worldwide work to hold governments accountable for protecting women’s and girls’ right to be free from violence. The rights enumerated above are guaranteed when a state party ratifies the following international treaties: the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment of Punishment (CAT). State parties are responsible for protecting individual’s rights, even if the state party is not the perpetrator of the human rights violation under international obligations arising from treaties and international customary law. Specifically, state parties are responsible for private acts of violence. While states have indicated their acceptance of these rights and obligations, both governmental and non-governmental actors undermine these rights when they contend that property rights or privacy rights should supersede an individual’s safety. In the 2006, the independent expert to the United Nations on violence against children explored the tension between individual rights and the right to a private and family life as enumerated in the Universal Declaration of Human Rights, article 16, and in the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights, articles 10 and 23, and concluded that “children’s rights to life, survival, development, dignity and physical integrity do not stop at the door of the family home, nor do States’ obligations to ensure these rights for children.” From Pinheiro, Paulo Sérgio, Report of the independent expert for the United Nations study on violence against children, The United Nations Secretary General’s Study on Violence against Children, 29 August 2006. Stereotypes, Myths, and Attitudes Create Barriers to Justice The unsubstantiated belief that women who are victims of domestic violence cannot protect their children because they are “susceptible to abusive relationships,” and are ineffective caregivers is often be found in the legal system itself. From Quigley, Linda, The Intersection Between Domestic Violence and the Child Welfare System: The Role Courts Can Play in the Protection of Battered Mothers and Their Children, 13 Wm. & Mary J. Women & L. 867, 879 (2007). In addition to this prejudicial attitude, a number of other myths obstruct access to justice for battered women and their children. According to the American Bar Association’s Commission on Domestic Violence, there are at least ten myths and corresponding facts to dispel the myths about domestic violence and custody of which advocates and attorneys should be aware. Laws and Legal Systems Create Barriers to Justice Governments in CEE/FSU countries that are in the process of drafting and implementing new domestic violence laws should take note of the lessons learned in other jurisdictions and conversely, best practices that have developed. Laws on child custody and child abuse may actually fail to protect battered mothers and their children. Some states in the United States have taken important steps in incorporating research about domestic violence and its impact on children. It should be noted that laws on divorce, child custody and visitation, child support, and child protection are enacted by states in the United States rather than the United States federal government. Child Custody Laws The American Bar Association’s Commission on Domestic Violence has prepared a chart detailing the laws on child custody and domestic violence by each state in the United States. It documents each state’s law based on seven key questions related to child custody determinations. The answers to these questions are important because they reflect the public policy priorities of each state in protecting battered mothers and children. A summary of the states’ responses is provided beneath each question. The term “best interest factors” generally means relevant factors that a judge will take into consideration when making a custody determination. The term “rebuttable presumption” means an inference about the facts of a case as presented, which may be overcome by contradictory evidence. The term “friendly parent” generally means the parent who is most likely to encourage contact between the other parent with the child. The term “CPO” means civil protection order also known as an “order for protection.” - Do best interest factors include domestic violence?
- Forty-three state laws explicitly include domestic violence as a best interest factor.
- What does this mean?
- Courts should be alert to the prevalence of domestic violence and consider its presence as a relevant best interest factor. Courts, in making a custody determinaton, should weigh domestic violence with all relevant factors, which protect the battered mother and her children.
- Courts should be attentive to “patterns of coercive control” as well as the prevalence of domestic violence, and when relevant, make findings on parenting behaviors that fit these patterns. From Ver Steegh, Nancy, Differentiating Types of Domestic Violence: Implications for Child Custody, Legal Studies Research Series, 41, 1419 (June 2006).
- Is there a rebuttable presumption against custody to the batterer?
- Twenty-five state laws explicitly create a rebuttable presumption against custody to the batterer.
- What does this mean?
- Courts must use a rebuttable presumption that joint legal or physical custody is not in the best interests of the child if domestic violence has occurred between the parents. This can help protect the battered mother and her children.
- Do the best interest factors include “friendly parent?”
- Thirty-two state laws include this factor, but four states explicitly provide that the factor doesn’t apply if domestic violence exists.
- What does this mean?
- In those states using this factor, if the domestic violence victim is judged as being “unfriendly” or not encouraging contact between the abuser and the child, this factor will weigh against her in the custody determination. The four states that provide that the factor doesn’t apply if domestic violence exists better protect battered mothers and their children. See also Ver Steegh, Nancy, Differentiating Types of Domestic Violence: Implications for Child Custody, Legal Studies Research Series, 41, 1421 (June 2006).
- Is there a rebuttable presumption of joint custody?
- Twenty-three state laws create a rebuttable presumption of joint custody, but four states provide that the presumption may be overcome by the presence of domestic violence.
- What does this mean?
- Except in those four states, joint custody is awarded without considering domestic violence and its impact upon a battered mother and her children.
- Is there representation for the child?
- Thirty-three state laws provide for representation for the child typically called a “guardian ad litem” (GAL).
- What does this mean?
- Generally, GALS advise the court on issues related to custody and parenting time or visitation in cases where custody or parenting time is sought or if there is reason to believe the child is a victim of domestic violence or child abuse or neglect. GALS also conduct investigations into the child’s best interests. Problems arise when the GAL does not recognize the dynamics of domestic violence in a family context and denigrates, denies or overlooks its existence.
- May child custody and child support be incorporated into the civil protection order (CPO)?
- Forty-seven state laws incorporate child custody into the CPO, but some of those states provide that the custody determination is temporary or time-limited.
- Thirty-eight state laws incorporate child support into the CPO, but some of those states provide that the child support determination is temporary or time-limited.
- What does this mean?
- In those states that incorporate at least temporary child custody decisions into their CPO, children who witnesses domestic violence are more likely to be protected from witnessing such violence again.
- In those states that incorporate at least temporary child support decisions into their CPO, battered mothers are more likely to be awarded temporary child support from the abuser to assist in caring for their children.
- Can the court enter a CPO as to the child? Who can file?
- Forty-five state laws explicitly provide that a court may enter a CPO in favor of a child.
- Of these states, some provide that a parent or guardian may file for a CPO on behalf of a child while others allow adult relatives and household members to file; other states allow other representatives or guardian ad litems to file; other states allow police to file.
- What does this mean?
- The states that allow the court to enter a CPO as to a child are more likely to protect children in households where domestic violence is alleged.
Governments in CEE/FSU countries in the process of drafting and implementing new domestic violence laws should consider the following: - 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 CPOs to order at least temporary child custody and support to the non-violent parent, and allow courts to enter a CPO as to the child.
Child Abuse Laws Child abuse and neglect laws may also create barriers for battered mothers and their children. In fact, some state laws may contain problematic definitions of child abuse and neglect such as language stating that a child is abused or neglected when her parents “[allow] to be created or inflicted upon [a] child a physical or mental injury.” In fact, this definition has resulted in children’s removal from the home for current or even future exposure to domestic violence. From Quigley, Linda, The Intersection Between Domestic Violence and the Child Welfare System: The Role Courts Can Play in the Protection of Battered Mothers and Their Children, 13 Wm. & Mary J. Women & L. 867, 879 (2007). According to the Children’s Bureau of the United States Department of Health and Human Services, three states or territories explicitly refer to domestic violence in their child abuse and neglect laws. Washington State provides that the child witnessing domestic violence is not in and of itself neglect or maltreatment. On the other hand, Puerto Rico, a United States territory, Montana, and West Virginia provide that a child who witnesses domestic violence or violence against someone who lives with the child is a victim of abuse. From Definitions of Child Abuse and Neglect: Summary of State Laws, Child Welfare Information Gateway (April 2007). The intent of these laws may have been to protect children, but in fact they often result in children being taken away from their battered mothers. The issue of who must report child abuse and neglect may also be problematic for battered mothers and their children. There are two categories of reporters, mandated and voluntary. In the past, some state laws have made judges mandatory reporters of child abuse. This resulted in the removal of children from the home when mothers filed protective orders and were forced to describe the domestic violence which caused them to seek protection. From Quigley, Linda, The Intersection Between Domestic Violence and the Child Welfare System: The Role Courts Can Play in the Protection of Battered Mothers and Their Children, 13 Wm. & Mary J. Women & L. 867, 880 (2007). But according to the U.S. Department of Human Services Child Welfare Information Gateway, judges are not currently among the mandated reporters. From Mandated Reporters of Child Abuse and Neglect, Child Welfare Information Gateway (January 2008). Policy and practice guidelines have been developed to assist courts in addressing domestic violence and child maltreatment cases. In a handbook developed for the National Council of Juvenile and Family Court Judges, Jeff Edleson and Susan Schechter identify four guiding principles and recommendations that child protection workers, domestic violence organizations, and courts should apply. First, these entities should “create safety, enhance well-being, and provide stability for children and families.” Second, these entities should “try to keep children affected by maltreatment and domestic violence in the care of their non-offending parent, whenever possible.” Third, these entities should create a “service system with many points of entry.” Lastly, these entities should “design a differential response system” that distinguishes between less serious and extremely dangerous family situations and interventions appropriate to each situation. From Jeffrey Edleson and Susan Schechter, Effective Intervention in Woman Battering & Child Maltreatment Cases: Guidelines for Policy and Practice, National Council of Juvenile and Family Court Judges (6 February 1999). Governments in CEE/FSU countries in the process of drafting and implementing new domestic violence laws should review child abuse and neglect laws to ensure that children who witness domestic violence are not necessarily categorized as abused or neglected children. At the same time governments should ensure that children are protected from violence and not placed in the custody of a violent parent. Visitation Laws
In cases involving domestic violence, visitation, also known as parenting time, may or may not be appropriate. But, decisions about visitation by the court should not be made without considering the safety of the child. The National Council of Juvenile and Family Court Judges has published a Model State Code on Family Violence, which advises that courts should not “endanger a child or adult victim of domestic violence in order to accommodate visitation by a perpetrator of domestic or family violence.” But, the Code does permit visitation if precautionary measures are taken to protect the safety of the child. The Code also recommends that state agencies administer specialized visitation centers for victims of domestic violence and their children where supervised visitation with the batterer parent may take place. From Model State Code on Family Violence, National Council of Juvenile and Family Court Judges (1994).
Governments in CEE/FSU countries in the process of drafting and implementing new domestic violence laws should ensure that they review visitation laws and at a minimum, consider the recommendations in the Model State Code on Family Violence.
Works Consulted 1. Adams, Rebecca, Violence Against Women and International Law: The Fundamental Right to State Protection from Domestic Violence, New York International Law Review, 20 N.Y. Int'l L. Rev. 57 (Winter 2007). 2. American Bar Association Commission on Domestic Violence, Child Custody and Domestic Violence By State (February 2008). 3. American Bar Association Commission on Domestic Violence Quarterly E-Newsletter (July 2006). 4. Behind Closed Doors: The Impact of Domestic Violence on Children, UNICEF (2006). 5. Bowen, Alison, Custody Cases Put Under Supreme Legal Watch, Women’s eNews (13 March 2008). 6. Bowen, Alison, Judges' Private Custody Meetings Raise Questions, Women’s eNews (10 January 2008). 7. Definitions of Child Abuse and Neglect: Summary of State Laws, Child Welfare Information Gateway (April 2007). 8. Edleson, Jeffrey and Susan Schechter, Effective Intervention in Woman Battering & Child Maltreatment Cases: Guidelines for Policy and Practice, National Council of Juvenile and Family Court Judges (6 February 1999). 9. Family Violence Prevention Fund, (last accessed 3 November 2008). 10. Farney, Andrea C. and Roberta L. Valente, Creating Justice Through Balance: Integrating Domestic Violence Law into Family Court Practice, Juvenile and Family Court Journal, 35-56 (Fall 2003). 11. Frederick, Loretta, Questions About Family Court Domestic Violence Screening and Assessment, Family Court Review, 46 Fam. Ct. Rev. 523 (July 2008). 12. Goldscheid, Julie, Elusive Equality in Domestic and Sexual Violence Law Reform, Florida State University Law Review, 34 Fla. St. U. L. Rev. 731 (Spring 2007). 13. Herman, Madelynn, Domestic Violence Courts: Organization and Procedure Varies, Family Violence Forum, Vol 3, No. 2 (Summer 2004). 14. Keilitz, Susan, Specialization of Domestic Violence Case Management in the Courts: A National Survey, National Criminal Justice Reference Service (5 February 2001). 15. Levy, Beth, The Pros and Cons of the Integrated Domestic Violence (IDV) Court, Westchester NOW (Summer 2002). 16. Little, Kristin, Specialized Courts and Domestic Violence, U.S. Department of State, Issues of Democracy (May 2003). 17. Mandated Reporters of Child Abuse and Neglect, Child Welfare Information Gateway (January 2008). 18. Model State Code on Family Violence, National Council of Juvenile and Family Court Judges (1994). 19. New York State Domestic Violence Courts Program Fact Sheet, New York State Division of Criminal Justice Services (15 September 2008). 20. Parker, Heather R., Access Denied: The Disconnect Between Statutory and Actual Access to Child Support for Civil Protection Order Petitioners, University of Cincinnati Law Review, 76 U. Cin. L. Rev. 271 (Fall 2007). 21. Pinheiro, Paulo Sérgio, Report of the independent expert for the United Nations study on violence against children, The United Nations Secretary General’s Study on Violence against Children, (29 August 2006). 22. Quigley, Linda, The Intersection Between Domestic Violence and the Child Welfare System: The Role Courts Can Play in the Protection of Battered Mothers and their Children, William and Mary Journal of Women and the Law, 13 Wm. & Mary J. Women & L. 867 (Spring 2007). 23. Steketee, Martha Wade, Lynn S. Levey and Susan L. Keilitz, Implementing an Integrated Domestic Violence Court: Systemic Change in the District of Columbia, State Justice Institute and National Center for State Courts (30 June 2000). 24. Stern, Nat, Wendy P. Crook and Karen Oehme, Visitation Decisions in Domestic Violence Cases: Seeking Lessons from One State’s Experience, Wisconsin Journal of Law, Gender & Society, 23 Wis. J.L. Gender & Soc'y 113 (Spring 2008). 25. Tessier, Marie, Custody Disputes Often Bypass Abuse Assessments, Women’s eNews (6 July 2007). 26. Tubbs, Carolyn and Williams, Oliver, “Shared Parenting after Abuse,” in Parenting by Men Who Batter, eds. Jeff Edleson and Oliver Williams (2007). 27. Unite to End Violence Against Women Fact Sheet, United Nations Secretary General’s Campaign, United Nations Department of Public Information (DPI/2498), (February 2008). 28. Ver Steegh, Nancy, Differentiating Types of Domestic Violence: Implications for Child Custody, Legal Studies Research Series, 41 (June 2006). 29. Widiss, Deborah A., Domestic Violence and the Workplace: The Explosion of State Legislation and the Need for a Comprehensive Strategy, Florida State University Law Review, 35 Fla. St. U. L. Rev. 669 (Spring 2008).
Call for Comments on the Montenegro Draft Law on the Protection from Violence in the Family
Vanja Mikulic:
SOS Hotline for Women and Children Victims of Violence Podgorica is seeking experts to review and comment on the draft Law on the Protection from Violence in the Family (Serbian).
In 2005, the Ministry of Justice, in collaboration with Save the Children UK program in Montenegro and Professor Radoje Korac, PhD, Law Faculty, department for family law, formed a working group to develop a draft law on the protection from violence in the family. The project also received funding from the Canadian International Development Agency (CIDA) which hopes Montenegro will adopt accessible and effective judicial remedies in combating domestic violence. In January of 2006, a draft version of the law, entitled “Law on Protection of Domestic Violence,” was circulated amongst local NGOs in Montenegro and international organizations abroad, seeking comments or suggestions for improving and strengthening the law. Gathering opinions on the draft law from a range of professionals, field-workers, and scholars will assist the working group in developing and refining the eventual document. The domestic violence law is expected to pass in June of 2006.
While the Law represents a sincere step forward in recognizing domestic violence as a societal problem, initial criticisms of the draft law express concern that women who suffer or who have suffered violence will not be adequately protected under the current version. The Law relies upon vague language, and enables the police or non-governmental organizations to apply for protection measures against the batterer without consent of the adult victim. The Law also imposes lighter criminal penalties on perpetrators of domestic violence than those provided by general criminal assault laws. Commentators stress the need to hold perpetrators accountable for their crimes in order to provide real protection for victims of domestic violence.
A general evaluation of the first draft Law on protection from violence in the family by the NGO SOS hotline Podgorica is that this draft law does not follow the intensity and the scope of the serious social problem as domestic violence is, nor does it provide adequate protection to the critical target group of women who suffer or suffered violence in the family – the Law is systematically drafted in a wrong way, first of all because it transfers violators’ sanctioning from the criminal-legal regulation to the law of torts by which this incriminated behavior gives lower (lighter) level of social danger. For the Montenegro country page, click here. Genoveva Tisheva:
Genoveva Tisheva is a lawyer and the Managing Director of the BGRF. She is one of the initiators and the drafters of the Bulgarian law on Protection against Domestic Violence. Her organization also organized the contacts with the parliament and the main lobbying campaign, which brought to the successful adoption of the law in March 2005. Since then she has been participating in the work for the successful implementation of the law. She has also consulted the Tajik NGOs on their Draft law against family violence in July 2005 through holding a seminar in Dushanbe during that period. It is a good initiative as a whole. There are some concerns regarding the mixture of social, administrative and court protections and the fact that decisions will be taken within the criminal procedure, as well. In some places, there is a great deal of intervention by people other than the victim, and there is no guarantee how quick the protection could be.
Art. 1- Should define more precisely the second and the third purpose of the law; they are almost the same: “ to protect the victim.”
Art. 2- It is good that there is both a general and a more detailed definition of domestic violence. The only issue with the more detailed definition is that the court might look for these exact hypotheses instead of developing practice. Psychological violence as such is expressly missing.
Art. 3, para. 7- This provision is good, but will pose problems.
Art. 5 and following- This is a big commitment by the state. Hopefully, it will be developed in more detail in other legislation.
Art. 8, para. 2- If it is possible, it would be better to shorten the period of reaction, such as a maximum of 6 hours?
Art. 9- It would be good to leave more space for the services for NGOs, which have the expertise already and it is up to the state to support them. They should not leave too much initiative to the state and the local authorities- they will not do it properly.- The NGOs not only in the interdisciplinary teams, but also to have the initiative for the centres.
Art. 12- This provision contradicts Art. 11 a bit. They should not go too far with this publicity; it is up to the victim in the first place to decide, upon her free initiative. It will worsen the situation. The law should be careful to limit the people and institutions involved in this. When she/he is a child, that is okay, but in other cases- there is a difference. The victims should be offered just information and support.
Art. 14- This is a good initiative. It should be in compliance with the procedural codes. Will it be an advocate officially entitled in court? It should be stated explicitly.
Art. 15- What about measures about the children, when limiting the contacts? Also, other places like the workplace should be mentioned.
Art. 16- Among other issues, the purpose is to protect the rights of the victim in the first place.
Art. 17, para. 1- In the last sentence of this paragraph, there should not be such a condition, as there is always a danger of committing violence again. They must be separated, anyway.
Art. 17, para. 3- The maximum period is too short. It should be as long as needed- up to 6 months at least or 1 year.
Art. 18, para. 1- In the last sentence of this paragraph, there should not be such a condition, as there is always a danger of committing violence again. They must be separated, anyway.
Art. 19- It can be ordered anyway, and qualifying circumstances are not needed.
Art. 20- This should be in accordance with other laws related to addictions.
Art. 21- This should not be restricted to only 6 months, but as long as it is needed, e.g. up to 1 year.
Art. 22- This provision seems good, it is a bit unclear as a link to the above mentioned articles. The victims stays at home according to the measures.
Art. 23- This may not be in all cases.
Art. 24- NGOs, the prosecutor, police cannot initiate the procedure. It is too much.
Art. 24, para. 2- This is unclear.
Art. 25- This is maybe their criminal procedure, and they have such a crime in their law. This is good that the state has it. It explains why they want to hear the perpetrator. But it is also creates a limitation of the criminal procedure. It limits the ex-parte procedure opportunity, and the shift of the burden of proof, which is needed in this case. A declaration of the victim is not provided.
Art. 27- It is not clear how quickly you can have the protection, there are no guarantees in this procedure. The accused can hide indefinitely.
Art. 29, para. 2- This is not needed, it opens other opportunities to the aggressor.
Art. 30, para. 3- There has to be such services available in this case.
Art. 33, para. 1- in the last part, as mentioned above, this body cannot ask for termination or prolongation.
IV. Sanction Provisions- The last section is really criminal sanctions- it means that this law also regulates criminal sanctions. Since it is possible under their law.
Art. 35, para. 2- It is acceptable to have such a provision for the child.
Art. 36, para. 2- This is too short as a sanction. The law should provide more severe sanctions when repeated.
Art. 39- In addition to this, it should provide a broader inter-ministerial forum on DV issues. Cheryl Thomas:
Cheryl Thomas is the Director of the Women's Human Rights Program of The Advocates for Human Rights. For more information about The Advocates, please visit www.mnadvocates.org The Law of Montenegro on the Protection from Violence in the Family (hereinafter, the Law) includes positive changes in legislation with regard to domestic violence. The Law articulates important principles aimed at combating domestic violence. However, the Law also presents potential obstacles to ensuring domestic violence victims’ safety and offender accountability for violent crimes. These are outlined below.
Article 2 (6): Language is vague and difficult for judicial officer to apply.
Articles 7 and 8: Language directs the state to provide services and/or shelters for victims. A more effective and efficient approach is for the state to provide funding for shelters or safe homes that are operated by non-profit service agencies with experience and expertise in domestic violence issues.
Article 20: This provision reflects a false assumption that domestic violence is caused by alcohol or drug abuse. In fact, research shows that while an abuser's use of alcohol may have an effect on the severity of the abuse or the ease with which the abuser can justify his actions, an abuser does not become violent because he drinks too much. (Domestic Violence, Theories of Violence, Myths About Alcohol) Rather than alcohol or drug abuse programs, domestic violence offenders should be required to attend batterer’s intervention programs. These programs are based on research that shows that domestic violence is intentional and that battering is a system of abusive behaviors that a batterer uses to maintain control over his wife or intimate partner. (Batterer’s Intervention Programs)
Article 22: This provision is confusing in its description of the conditions under which the victim leaves the home. The law should make clear that, in cases of domestic violence, the offender will be ordered to leave the home, enabling the victim to remain there safely.
Article 12 and 24: The Law contemplates a great deal of state intervention and/or third party intervention in cases of domestic violence, independent of the adult victim’s wishes or requests and potentially without the involvement of advocates who work with victims and can best represent their interests. Article 24 authorizes prosecutors, police and NGOs to apply on behalf of an adult victim for protection measures which may exclude a domestic violence offender from the victim’s home. Such third party requests may jeopardize the safety and other interests of the adult victim. A primary goal of government intervention in cases of domestic violence should be to respond to the needs of victims. Thus, wherever possible, particularly in cases involving court ordered measures for protection, the adult victim’s wishes and needs should be paramount. (Domestic Violence, Explore the Issue, Coordinated Community Response, Core Principles of Intervention). In cases involving child victims, reporting requirements such as those listed in Article 12 may be appropriate.
Women who are victims of violence are most often the best judges of the dangers presented to them by violent partners. (Domestic Violence, Explore the Issue, Victim Protection Support and Assistance, Safety Planning) Therefore, it is not advisable to exclude them from the decision to apply for protection measures. This is particularly true since research shows that one of the most dangerous times for many women is when they separate from their abusers. A 2003 study described by a leading domestic violence agency in the United States, the Family Violence Prevention Fund confirmed that "[s]eparating from an abusive partner after having lived with him, leaving the home she shares with an abusive partner or asking her abusive partner to leave the home they share were all factors that put a woman at 'higher risk' of becoming a victim of homicide." It is very important for an adult victim of domestic violence to make her own decision to leave a relationship because she is in the best position to assess the potential danger.
Article 35: The law should include a provision making clear that violation of a court order for protection measures is a crime in itself, independent of any evidence of violence or threats of violence.
Also, Article 35 appears to provide criminal sanctions for acts of domestic violence separate from general criminal assault laws. It is important to ensure that crimes involving domestic violence are not treated less seriously than other crimes. In fact, many jurisdictions increase criminal penalties for repeated domestic violence offenses, even if they involve low level injury. For example, three or more convictions for assaults involving low level injury may become a felony with more serious sanctions.
Can a Petitioner Violate Her Own Order for Protection?
Advocates and lawyers in the United States are often asked to consider this question about Minnesota law. Minn. Stat. 518B. 01 subd.14 (i) states that “[t]he admittance into petitioner’s dwelling of an abusing party excluded from the dwelling under an order for protection is not a violation by the petitioner of the order for protection.” However, Minnesota law does not explicitly address whether or not a petitioner can violate an Order for Protection (OFP) by telephoning the respondent or visiting the respondent’s home, or any other possible voluntary encounters.The Advocates for Human Rights concludes that a petitioner cannot be held criminally liable for violation of their own OFP under any circumstances for several reasons.[1] The first is based on the language used by the statute itself, which contains language that restricts only the abuser, or the respondent.[2] Further, §518B.01, subd.18(2) says that, “the respondent is forbidden to enter or stay at the petitioner's residence, even if invited to do so by the petitioner or any other person; in no event is the order for protection voided.” This subdivision indicates that no action on the part of the petitioner can void the OFP. Next, as a remedial statute, the Minnesota’s Domestic Abuse Act should be treated with a liberal construction. The Domestic Abuse Act was intended both for the public good and to remedy the problems many women in Minnesota faced at the hands of their abusers. It can therefore properly be declared remedial legislation.[3] Thus, the statutes are to be given a liberal construction in favor of the remedy or of those who are the intended beneficiaries of the statute, and in a way that would not defeat the main purpose of the statute. The goal of the legislation was to provide a means for victims of domestic abuse to be protected from their abusers and restrain the abusers in several different ways. To read into the statute that petitioners are able to violate their own OFP goes against the intended purpose of the statute. Further, it would mean expanding the original OFP to protect the abuser, rather than the person being abused. Therefore, from a structural standpoint, a petitioner is not legally able to violate her own order. To further support our conclusion, the case law from Minnesota states that the Minnesota statute may not be expanded in a way that does not advance its remedial purpose.[4] Additionally, case law from other states and relevant federal case law holds that a petitioner cannot violate her own OFP. In 2003, the Ohio Supreme Court found that the prosecutor could not charge the victim with aiding and abetting the violation of the abusers’ orders.[5] A similar type of question was posed to the US Supreme Court in Gebardi v. United States (1932)[6], where they held that a woman who voluntarily crosses state lines for the purpose of prostitution could not be prosecuted for aiding and abetting under the Mann Act. Because the legislature did not specifically address this issue, the court held that the legislature intended to leave unpunished her acquiescence to the transportation and prostitution.[7] Similarly, in regards to domestic violence, if the legislature’s goal was to hold women punishable for violating their OFP, it would have done so in an affirmative manner. Another pertinent federal case is the US v. Annunziato[8]. In Annunziato, the court held that, “when the Legislature has imposed criminal penalties to protect a specific class of individuals, ‘it can hardly have meant that a member of that very class should be punishable either as an aider or abettor or as a co-conspirator.’” The abused person is the intended protected class and therefore, cannot by her own actions, remove this protection or be held liable for what the abuser does once invited inside.
[1] For further reference, see “Can a Petitioner Violate Their Own Order?” in Agents for Change, Vol. 18, Issue 1, January/February 2008, page 4. Agents for Change is a publication of Battered Women’s Legal Advocacy Project, Inc. See www.bwlap.org. [2] For example, the “abusing party” is restrained from committing acts of domestic violence, from the dwelling, and from the area around the dwelling. Minn. Stat 518B. 01 [3] Swenson v. Swenson, 490 N.W.2d 668, 670 (Minn. App. 1992). [5] State v. Lucas, 100 Ohio St.3d 1, 795 N.E.2d 642 (Ohio 2003) [6] Gebardi v. United States, 287 U.S. 112, 53 S.Ct.35, 77 LEd 206 (U.S. 1932) [8] U.S. v. Annunziato, 293 F.2d 373, 379 (2d Cir. 1961).
Commentary on the Draft Law on the Amendment to Article 3.65, Part 2, Item 1 of the Civil Code
Violence against women has become an issue discussed in the public life of Lithuanian society. Politicians welcomed the resolution of the Fourth Women’s Congress of August 27th, 2005, which highlighted the issue of violence against women as a violation of human rights. By implementing the National Program of Equal Opportunities for Women and Men, the state committed to draft the National Program of Reduction of Violence Against Women. During the last 10 months, several women’s conferences on women’s issues and violence against women took place at the Seimas of Lithuania (Parliament). However, although concrete actions are needed to enforce legislation and to gradually solve the problem, the many legal interpretations which have been brought to the table postpone any real and effective changes. One of the attempts to start solving the problem of violence against women by protecting the victims of violence in divorce litigation was initiated by Ona Valiukeviciute, a member of the Seimas (Parliament) on October 18, 2005. She submitted the draft law on the amendment to Article 3.65, Part 2, Item 1 of the Civil Code of the Republic of Lithuanian, Book III, Section Four: DIVORCE ON THE BASIS OF THE FAULT OF ONE OR BOTH OF THE SPOUSES. The following are two commentaries and opinions on THE DRAFT LAW on the amendment to Article 3.65, Part 2, Item 1 of the Civil Code of the Republic of Lithuania, Book III, Section Four: DIVORCE ON THE BASIS OF THE FAULT OF ONE OR BOTH OF THE SPOUSES (click here to see Articles 3.60-65 (unofficial translation by Vilana Pilinkaite-Sotirovic) For the link to the Lithuania country page, click here. Commentary contributed by: Vilana Pilinkaite-Sotirovic, Lithuania National VAW Monitor The current article is as follows: “Article 3.65. Provisional protection measures - The court, having regard to the interests of the children of the spouses as well as the interests of one of the spouses, may made orders for provisional protection measures pending the outcome of the divorce suit.
- The court may make the following orders for provisional protection measures:
1) circumstances permitting, order one of the spouses to live separately; 2) determine the residence of the minor children with one of the parents; 3) demand for one of the spouses not to interfere with the use of certain property by the other spouse; 4) issue a maintenance order in favor of the minor children or the other spouse; 5) seize property until its ownership by one of the spouses is determined or in order to enforce maintenance payments; 6) seize the property of one of the spouses, the value of which could be used to compensate for the litigation costs to the other spouse; 7) prohibit one of the spouses from having contact with his or her minor children or appearing in certain places.”[1] The draft law of the amendment addresses part 2, item 1: “circumstances permitting, order one of the spouses to live separately”, and suggests deleting the words “circumstances permitting,” because this wording contradicts the priorities of the application of legal acts which protect the rights of children. Even worse, the wording prioritizes the rights of violators. The aim of the amendment is to protect the property and personal non-property rights of the children and of one of the spouses, and to stop the physical and psychological violence in a family.[2] The project promoter argues that the Third Book of the Commentary of the Civil Code[3] stipulates that provisional protection measures are applied under the necessary circumstances when property and personal non-property rights of a child and one spouse might be damaged. However, the following commentary of the Civil Code, as indicated below, implies that, in practice, there are certain limitations on the application of the provisional protective measures. The project promoters refer to the specifications that clearly show the limitations of applying the provisional protective measures: “the order for one of the spouses to live separately is possible when the spouse’s physical and other violence against children and the other spouse may cause damages for them, but to order the violator to live separately is possible if the spouse has the possibility to live separately, namely, has ownership of living premises, is renting living premises or has enough financial resources to rent living premises. In the case of the absence of these possibilities, a child can be temporarily separated and settled in the state’s child custody institution or temporarily entrusted to the custody of close relatives.”[4] Therefore the project promoters argue that the court, in the case of the protection of the children and one spouse from the violent behavior of the other spouse, has to consider if the violator has enough resources to live separately. The court cannot unconditionally order the violator to live separately from the family (for example, to seek shelter at a public sleeping house, or with close relatives). Instead, the court has only the right to order the separation of a child-victim of violence by settling him in what may be an unknown environment. The draft law on the amendment of Article 3.65, Part 2, Item 1 of the Civil Code has been commented upon by the Legal Department of the Office of Seimas (Parliament), the Committee of Legal Affairs at the Seimas, the Commission on Family and Child Affairs, the Department of European Law, and the Supreme Court of Lithuania. Many comments and remarks on the draft law of the amendment of Article 3.65, Part 2, Item 1 of the Civil Code (CC), as indicated below, suggest that changing the words “circumstances permitting” would not improve the situation of the children and the spouse who suffer physical or any other violence, but might even worsen it.[5] 1. One of the remarks of the Legal Department of the Office of Seimas (Parliament) concludes that the amendment is interpreted in a very narrow sense. Each article of the CC should be interpreted as a complex part of the total CC rather than in isolation. Therefore, by referring to the financial opportunities of a spouse, the project promoters are incorrect. 2. It is stated in the remark that an order to live separately contradicts the Constitution and limits the constitutional rights of free choice for settlement and even ownership rights (when a person is ordered to live separately and move from the private ownership.) [Articles 32 and 33 of the Constitution of the Republic of Lithuania] The court may limit these rights if it is enshrined in the law or if it is necessary to defend other constitutional values or the public interest. In the case of divorce, when a spouse or children suffer violence, the Court may defend such constitutional values as human dignity and safety (Article 21, Constitution). Also in the Constitution, the state protects the institution of the family, motherhood, fatherhood and childhood, and by law defends children’s rights (Articles 38 and 39, Constitution). In the civil case of divorce, there is a conflict of constitutional values, and the court has to restore the balance of these values and apply proportional and necessary provisional protection measures to achieve this goal. However, the comment of the Committee of Legal Affairs suggests that the court has to take into consideration the financial opportunities of a spouse when an order is given to live separately from a family, and restore the balance of the constitutional values after evaluating whether or not a spouse has enough resources to live separately. 3. The Legal Department of the Office of Seimas (Parliament) argues that the measure to order a spouse to live separately is provisional and non-mandatory. Even the elimination of the words “circumstances permitting” will presume the non-mandatory. Such a measure would not secure the children’s interests because they are not secured from contacts with the violent parent outside the home’s private space (children could be met on the street, near school or kindergarten.) Therefore the measure to settle children temporarily under state custody or in the custody of close relatives would be more effective. [These measures are also mentioned in the UN Convention on Children’s Rights.] 4. The advisor at the Committee of Legal Affairs argues that the words “circumstances permitting” would make the situation worse because the court would avoid applying this measure. The concept of living separately in not defined very concretely and therefore the words “circumstances permitting” includes financial circumstances and additionally any factual circumstances which might include the separation of the family by limiting the spouse’s right to utilize a part of the living quarters. Therefore, the court should evaluate these circumstances. There is another danger that a spouse can blackmail the other spouse with accusations about violence, with the goal of appropriating a larger part of the property. Meanwhile, the CC includes the equality principle for both spouses and their interests. 5. The Supreme Court also presented the opinion that the suggested amendment would not improve the situation, because the provisional measure is applied to protect the interests of underage children and one spouse until the conflicts between spouses or the children’s parents are solved [in the divorce litigation]. In addition, this provisional measure to order one of the spouses to live separately is not conceptualized to resolve the underlying social problem of violence against women. At this point, the draft law has been returned to the promoters to provide new arguments for the promotion of the amendment to Article 3.65, Part 2, Item 1.[6]
[5] The comments are summarized from the Conclusion of the Committee of Legal Affairs to the draft law XP-862, May 10, 2006. The conclusions were received by Jurius Petreikis, the advisor of the Seimas member Ona Vaaliukeviciute. [6] The comments are summarized from the Conclusion of the Committee of Legal Affairs to the draft law XP-862, May 10, 2006. Commentary contributed by: Mary Ellingen, Volunteer Lawyer, The Advocates for Human Rights: Commentary to the Draft Law on the Amendment to Article 3.65, Part 2, Item 1, of the Civil Code of the Republic of Lithuania: The objective of the law, as stated, is to protect the interests of the children as well as one of the spouses during a divorce suit. The protective measures allow property to be seized for the temporary support of minor children or the other spouse, and even for the litigation costs of the other spouse. The article allows the court to determine temporary custody of the minor children, and to prohibit one of the spouses from having contact with the children or from appearing in certain places [presumably places where that minor child might be, such as a schoolyard- this should be clearly stated if that is indeed the drafter’s intent]. In summary, the court may consider that the protection of a spouse and a minor child should outweigh the other spouse’s rights to his or her property, to his or her children, and to move freely about in society. All of these measures are clearly stated to be provisional, pending the outcome of the divorce suit. However, the first provisional protective measure has an additional condition upon it: the court may order one of the spouses to live separately if there are “circumstances permitting.” It is unclear if these are the personal circumstances or finances of the spouse who is to be ordered to live apart, or if the “circumstances” are the circumstances of violence which exist and which would therefore justify an order by the court that a spouse live apart. The language “circumstances permitting” clearly qualifies what should be an unequivocal right to safety for a victim of domestic violence, be they a spouse or a child. “Circumstances permitting” is too vague- the circumstances could be financial, or, one could argue, even a matter of convenience to an abuser. The personal “circumstances” of an abuser must not be allowed to take priority over the safety of the other spouse or the safety of the children. This would be a clear violation of the human rights of that spouse and child. If a court can order a child into unfamiliar living conditions during the divorce proceedings (see Commentary to Civil Code), it ought to be able to order an abuser to find suitable accommodation, despite any hardship it may cause to his “circumstances.” It is true that this would not guarantee the safety of the other spouse and child, but it would remove the abuser from the home and thus from the security of perpetrating the violence away from the public eye. Not only should the words “circumstances permitting” be omitted, but the court, in order to fulfill the purpose of the Article stated in paragraph no. 1, should be required to order a spouse to live separately, if the court determines that to be necessary for the physical safety of the children or the other spouse. If that is indeed what the drafters intended to be the circumstances permitting such an order, the language should clearly state so. The other provisional protective measures should be mandatory, as well. Therefore, the language at the beginning of Part 2 should say: “The court shall make the following orders for provisional protection measures” and Part 2, Item 1 should say: “If the court deems it necessary for the safety of the other spouse and the children, the court shall order one of the spouses to live separately.” This order, at the beginning of a divorce suit, is necessary to immediately protect the health and well-being of the other spouse and the children.
Commentary on the Polish Domestic Violence Law
Contributed by: Agnieszka Mrozik, Poland National VAW Monitor
For the Poland country page, click here.
Act on Counteraction Domestic Violence – the history of legislative process
In 2003, the Government Plenipotentiary for Equal Status of Women and Men, Izabella Jaruga-Nowacka, in cooperation with non-governmental organizations started to draft the law that would combat domestic violence. She continued the work as deputy Prime Minister together with Magdalena Sroda, the new Plenipotentiary. The draft prepared by Jaruga-Nowacka and Sroda reflected the understanding of the need of immediate action when domestic violence takes place. The project was based on four assumptions: domestic violence is a crime; the state is responsible for prevention of domestic violence and punishment of the perpetrator; the perpetrator is responsible for his or her actions; and the victim has the right to be safe. One of the most significant regulations of the new act was the order to keep the perpetrator away from the victim, including the perpetrator’s eviction from the place of common living. The draft law forbade the perpetrator to have any contact with the victim for 3 months: no phone calls, e-mails, nor physical contact. This regulation also allowed for the perpetrator to be banned from the place of common living. Other provisions included: compulsory therapy for the perpetrator, ban on corporal punishment of children, and cooperation of all individuals and institutions that aimed at fighting against violence to achieve better results.
However, the draft that reached the Seym in January 2005 did not keep much of the nature, text and spirit of the first draft prepared by Jaruga-Nowacka, Sroda, and non-governmental organizations. The text was strongly reworked, rephrased, modified and simply changed during the governmental drafting. During the first (February 2005), second and third (July 2005) reading of the Draft Law, the most intense discussion broke out about the suggested regulation on the eviction of perpetrator from the flat shared with the victim (the argument was that it could influence the growing number of the homeless), as well as about the corporal punishment of children (the MPs believed in the “educational power of spanking”). The result was that the article banning on corporal punishment of children had been rejected by the Seym even before it reached the Senate. With an equal intensity, the MPs debated about the definition of domestic violence. The wording of domestic violence as resulting in “destruction of all kinds of freedom, including sexual one” was considered by some MPs as “an invitation to rape” because of this notion of sexual freedom. The majority of the MPs finally voted to include the “controversial” words in the general definition of domestic violence.
On July 25, 2005, the Draft Law was discussed in the Senate. The members of the Senate introduced several amendments to the Law:
1). the regulation creating the Council on Counteraction Domestic Violence, which was to be the Prime Minister’s advisory and consulting body, was rejected (the argument was that it would be an unnecessary subject eating up the enormous sums of the budget money). According to the Law, the Council was to consist of the representatives of: the Ministries (Justice, Interior, Labour, Social Affairs, Health, Education), the Ombudsman for Children, the Commissioner for Civil Rights Protection, and the NGOs.
2). the content of the article, demanding the perpetrator’s eviction from the flat jointly occupied with the victim, was changed. The members of the Senate suggested that the court would be able to force the perpetrator to leave the flat and move to the new residence, but only if there was a serious fear that the perpetrator would be continuously using violence against the family members or threatening to commit this crime. Ordering the abuser out of the home is a remedy available only in a criminal conviction. When, by chance, the sentence was suspended, the court would decide about further contact between the perpetrator and the victim, including the ban on any contacts. The court would also direct the perpetrator to the therapy or decide about his (her) participation in a special corrective and educational program.
On July 29, 2006, the Senate amendments were discussed by the Seym. The MPs approved the Senate’s rejection of the regulation that provided for creation of the Council on Counteraction Domestic Violence. But, at the same time, they rejected the amendment which suggested that the perpetrator may be evicted from the flat jointly occupied with the victim only if there is a serious fear that he (she) will be using violence against other family members or threatening to commit this crime. According to the final version of the Act, the fear mentioned by the Senate was not to be the only argument for the court’s decision about the perpetrator’s eviction from the flat. On July 29, 2005, after those changes were made, the Seym passed the new Law. These remedies are available only through criminal proceedings; there is no mechanism for civil proceedings under this law.
On August 1, 2005, the Act was directed to the President Aleksander Kwasniewski who signed it on August 18. On November 21 the Act was enacted.
Compiled from:
Monika Platek, Women, Children and the Law in Poland: Protection or Barrier?, Law Faculty, Warsaw University, Poland, May 2005 (PDF, 17 Pages)
“Counteraction Violence in Close Relations Act Discussed in Polish Parliament”, StopVAW, July 1, 2005
"Counteraction Violence in Close Relations Bill Passed and Enacted”, StopVAW, February 6, 2006
“Opis przebiegu procesu legislacyjnego dla projektu ustawy o przeciwdzialaniu przemocy w rodzinie”, Komisja Sejmowa; last access July 30, 2006
COMMENTARY ON THE ACT ON COUNTERACTION DOMESTIC VIOLENCE
“Unfortunately, the Act on Counteraction Domestic Violence, enacted on November 21, 2005, is far from the social expectations. For sure, the Act contains the articles that emphasize the significance and specificity of domestic violence. For example, the article 12 allows for deprivatization of domestic violence and signalizes that some individuals or professional groups are particularly responsible for giving attention to the problem of domestic violence. This article states that the individuals, who, entitled by their official duties, suspect that domestic violence crime was committed, should immediately report this to the police or prosecutor.
Furthermore, the Act provides for the new regulation allowing for separation of the perpetrator from the victim of domestic violence, as well as for reeducation of the perpetrator. But these bans and orders are not so distinct as those legally binding in other countries, like in Austria, Germany or Spain. According to the article 14, the court may demand police supervision instead of a temporary arrest on condition that the defendant leaves the flat jointly occupied with the aggrieved person. And this is the only regulation that is legally binding by the trial begins. But after the sentence is passed, the court, suspending it, may oblige the perpetrator to undergo a therapy or participate in a corrective and educational program. On the other hand, conditionally dismissing the criminal proceedings against the perpetrator of domestic violence or suspending the sentence, the court defines the way in which the defendant and the aggrieved person contact each other or, in certain circumstances, it may ban the defendant’s moving close to the aggrieved person. In such a case, the court may also pronounce that the defendant leaves the flat jointly occupied with the aggrieved person (Article 13 and 15).
There are no special powers for the police which very often contact the victim first, coming for, so called, “intervention.” Very few changes were introduced into the initial stage of the criminal proceedings when the victim needs the real protection against the perpetrator. Only when the sentence is passed, the more distinct possibilities of bans and orders appear.
Does the new Act provide for anything we may celebrate then? There are several positive aspects of this Act. First of all, we have a separate Act on Counteraction Domestic Violence, not only amendments to existing bills. It means that our legislative body recognized domestic violence as a serious social problem and found the state responsible for solving it. Furthermore, for the first time in the history of Poland the Act has provided for the definition of domestic violence (article 2, item 2) and this definition was suggested by the NGOs. The Act also assumes that the Council of Ministers will adopt and monitor the National Program for Prevention and Counteraction Domestic Violence.
It is a pity that we do not have the Act similar to the Austrian, German or Spanish one. But what is important is the fact that we have the Act and it is legally binding. And being the separate Act, it may be amended.” (Spurek, 2006: 10-11)
Sylwia Spurek – a lawyer, legislator, by November 2005 the spokeswoman of the Government Plenipotentiary for Equal Status of Women and Men, Prof. Magdalena Sroda. She prepared the Draft Act on Counteraction Domestic Violence and held public and governmental consultations on this project.Source:
Sylwia Spurek, Ustawa przeciw przemocy, “Zadra,” No 1 (26), 2006, p. 10-11; unofficial translation by Agnieszka Mrozik.
Click here to see an unofficial translation on the Act on Counteraction of Domestic Violence (unofficial translation by Agnieszka Mrozik).
Domestic Violence and the Right to Property in U.S. Caselaw
I. INTRODUCTIONThis memorandum sets forth the relevant law addressing the right to property in domestic violence cases. The Advocates for Human Rights drafted this memo in response to National VAW Monitors’ concerns raised at the Budapest Meeting in 2006. Several Monitors cited obstacles in drafting and passing domestic violence laws which include order for protection provisions. They had noted officials’ concerns regarding property rights. Advocates in Minnesota likewise faced this challenge when passing Minnesota’s domestic violence law in 1976. Since then, however, U.S. courts have recognized that property rights are not absolute and protecting women and children’s safety is a compelling state interest which can supersede property rights. In one case, the court noted the importance of a state’s power to protect the safety of its citizens: “The police power is the inherent power of a body politic to enact and enforce laws for the promotion of the general welfare. It has long been recognized that property rights are not absolute and that persons hold their property “subject to valid police regulation, made, and to be made, for the health and comfort of the people…”[1] …”The restrictions that the act places on the use of property to protect abused spouses and children are necessary to dispel the dangers of domestic violence. In doing so, they violate no constitutional mandate against the taking of property.”[2] In another case, the court noted the seriousness of domestic violence and the extreme danger presented in these cases prioritized people’s safety over property rights: “The magnitude of the problem of domestic violence is evidenced by statistics compiled by the FBI in 1973 which indicate that one-fourth of all homicides in the United States occur within the family.”[3] The caselaw summarized below addresses the right to property in terms of: 1) a taking without compensation; 2) an exercise of the state’s police power, and; 3) a taking without a jury trial. Not all of these cases are based on facts situations of domestic violence. Some courts have, however, applied the general rules on taking of property to domestic violence cases. This memo also presents another rule: courts may not order the victim out of the home under domestic abuse laws that provide for orders for protection. This memo is followed by quotations from domestic violence cases that address the right to property against the governmental interest, i.e. protecting the health, welfare and safety of its citizens. A summary of the facts and how each case came to court are provided for each case. Where possible, cases are linked to the internet. Where cases are not available on the internet, they will be sent separately as attachments. II. ISSUE 1: WHETHER AN ORDER FOR PROTECTION CONSTITUTES AN UNCONSTITUTIONAL TAKING AND REQUIRES THE STATE TO PAY COMPENSATION. - Three elements must be established to constitute an unconstitutional taking and require the state to pay compensation.[4]
- A state action
- which affects a property interest in the constitutional sense, and
- which deprives the owner of all beneficial use of his or her property.
- The husband must be denied all beneficial use of the property to constitute a taking of property and require the state to pay compensation.
- Children still living in the house still provide the husband with some beneficial use of the property. The husband is using the property to house his children.[5]
- A wife still living in the house still provides the husband with some beneficial use of the property. The husband is not required to find her alternative shelter.[6]
III. ISSUE 2: WHETHER THE PENNSYLVANIA PROTECTION FROM ABUSE ACT IS AN UNCONSTITUTIONAL EXERCISE OF THE STATE’S POLICE POWER. - Property rights are not absolute and are subject to the legitimate use of the state’s police power.[7]
- “The police power is the inherent power of a body politic to enact and enforce laws for the promotion of the general welfare. It has long been recognized that property rights are not absolute and that persons hold their property “subject to valid police regulation, made, and to be made, for the health and comfort of the people…”[8]
- The test to determine whether there is an unconstitutional exercise of the state’s police power:
i. “…a law which purports to be an exercise of the police power must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained.”[9] ii. The Protection from Abuse Act is not a due process violation, because the sanctions bear a real and substantial relationship to the stated objectives, which are to provide for remedies and procedures relating to abuse of adults or children by a person who is a family or household member.[10]
3. With regard to state use of police power, there is no unconstitutional deprivation of individual rights and property rights when: i. any deprivation of use of property is temporary, ii. title to real estate is not affected, iii. all exclusion orders are modifiable.[11]
IV. ISSUE 3: WHETHER AN ORDER FOR PROTECTION LAW IS UNCONSTITUTIONAL AS DEPRIVING AN INDIVIDUAL OF PROPERTY WITHOUT A JURY TRIAL. - The Protection from Abuse Act is not unconstitutional as depriving a party of his property without a jury trial.[12]
- The act does not involve any criminal proceeding, but invokes the equitable power of the court.
V. ISSUE 4: WHETHER THE COURT EXCEEDED ITS AUTHORITY UNDER THE DOMESTIC ABUSE ACT BY ORDERING THE VICTIM OUT OF THE HOME. - An order for the abused party to vacate the family residence is inconsistent with the language of the statute and its remedial purpose.[13]
- As a remedial statute, the Domestic Abuse Act receives liberal construction.[14]
- The liberal construction accorded remedial legislation, however, is “remedial solely in favor of an injured....person.”[15]
[1] Boyle citing DePaul v. Kauffman, 441 Pa. 386, 393 (1971). [2] Boyle v. Boyle, 12 Pa. D. & C.3d 767, 773 (1979 Pa. D. & C.). [3] State ex. rel. Williams v. Marsh, 626 S.W.2d 223, 230-31 (1982). [4] Pitsenberger v. Pitsenberger, 410 A.2d 1052 (Md. App. 1979). Note: Pitsenberger involves a divorce where the wife is awarded use of the property and the husband is required to leave. There is no domestic abuse alleged. [5] Pitsenberger v. Pitsenberger, 410 A.2d 1052 (Md. App. 1979). [6] Cote v. Cote, 599 A.2D 869 (1992 Md. App.). [7] Boyle v. Boyle, 12 Pa. D. & C.3d 767, 772 (1979 Pa. D. & C.). [8] Boyle citing DePaul v. Kauffman, 441 Pa. 386, 393 (1971). [9] Boyle citing DePaul v. Kauffman, 441 Pa. 386 (1971). [10] Boyle v. Boyle, 12 Pa. D. & C.3d 767, 772 (1979 Pa. D. & C.). [11] Boyle v. Boyle, 12 Pa. D. & C.3d 767, 773 (1979 Pa. D. & C.) citing Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). [12] Boyle v. Boyle, 12 Pa. D. & C.3d 767, 775-76 (1979 Pa. D. & C.). [13] Swenson v. Swenson, 490 N.W. 2d 668 (1992 Minn. App.). [14] Swenson citing Krause v. Merickel, 344 N.W.2d 398 (Minn. 1984) [15] Swenson citing Leppla v. American Family Ins. Group, 306 Minn. 478, 238 N.W.2d 592, 595 (1976) (quoting Christensen v. Hennepin Transp. Co., 215 Minn. 394, 412, 10 N.W.2d 406, 416 (1943). Note: Leppla and Christensen are not domestic violence cases; Leppla deals with an insurance claim resulting from a fatal car accident, and Christensen is a lawsuit to recover damages from the car owner involved in an accident with plaintiff.
Domestic Violence in the U.S. Military: Who Commits It, What the Victims Experience, and How the Military Responds
The following presentation is part of the Women's Human Rights Speaker Series, a bi-monthly event co-sponsored by The Advocates for Human Rights and Briggs & Morgan, P.A.: Loretta Frederick and Connie Sponsler
Battered Women’s Justice Project
Tuesday, February 12th, 2008 from 12:00 – 1:00 p.m. The U.S. military, consisting primarily of young men, is faced with the issue of domestic violence in different forms than in other cultures and communities. Complicating the situation are deployments, a high degree of mobility of the population, the usual stresses on relationships, and the mission of the military: warmaking. There are also unique challenges for the victims of violence committed by service members. This seminar explored these issues and described the intervention model employed by the branches of the U.S. military. The presenters also reviewed the dramatic changes in Department of Defense policy over the past three years, resulting in a major paradigm shift that provides, for the first time, confidentiality for victims in some circumstances. Please click here to hear the audio file. Loretta M. Frederick is Senior Legal and Policy Advisor of the Battered Women’s Justice Project, a national resource center on domestic violence criminal and civil legal issues. Since 1978 she has done training and consultation on domestic violence legal issues with judges, advocates, attorneys, prosecutors and law enforcement officers in the U.S and internationally. Loretta serves as faculty for the National Judicial Institutes on Domestic Violence and was a consultant for the US Marine Corps on the development of its Coordinated Community Response to domestic violence. Her work with the Minnesota State Bar Association has included her current role as Chair of the Domestic Abuse Committee as well as a past term as Chair of the Family Law Section. Connie Sponsler is the Training and Technical Assistance Manager for the Battered Women’s Justice Project. She is also responsible for managing several cooperative Department of Defense/Department of Justice projects. She served for three years on the DoD Task Force on Domestic Violence. From 1995-1998, Ms. Sponsler was the East Coast Site Coordinator for the United States Marine Corps - Coordinated Community Response Project. She lived in both North Carolina and Virginia and worked extensively with Marine Corps installations on the implementation of their response to domestic violence. This work included training, policy development, and program assessment for family advocacy staff, Case Review members, Commands, military and civilian police, military and civilian advocates, hospital personnel and community intervention. Ms. Sponsler has been an advocate for adult and youth victims of domestic abuse and sexual assault for 25 years.
Expanding the Reach of STOPVAW
Two Peace Corps volunteers serving in Ukraine and Kyrgyzstan have put the extensive resources of the Stop Violence Against Women website to good use in their work with women’s NGOs dedicated to anti-violence efforts. Jennifer Nader works in Kherson, Ukraine at the “Successful Woman” NGO, a four-year old organization providing a wide variety of services for victims of trafficking and violence: crisis hotline, anonymous consultations, self-help groups, legal and psychological consultations, shelter (the first in southern Ukraine), and trainings on violence prevention, women’s leadership and job skills. “Successful Woman” served 2,413 clients in 2003. The organization is concerned about the lack of official documentation of domestic violence in Ukraine, and has received a Democracy Grant from the U.S. Embassy in Ukraine to produce a documentary film for a public education campaign on the subject. The goal of the campaign is two-fold: to educate the general public in Ukraine about the causes and effects of domestic violence, and to make women who may be victims of domestic violence aware of the services available to help them in their local communities. “Successful Woman” has also collaborated with The Advocates to translate all the domestic violence training modules on the Stop Violence Against Women website (http://www.stopvaw.org/Domestic_Violence__Training_Materials.html) into Russian and Ukrainian. When the film and the translations of the training modules are completed, they will be distributed to 200 NGOs and educational institutions throughout Ukraine. In addition, “Successful Woman” will use the film and the training modules to conduct trainings on domestic violence in educational institutions and public spaces, such as libraries, in Kherson, Chaplinka, Belozerka, Nova Kahovka, Kahovka, Skadovsk, Siropinsk, and Gola Printan. They will also train trainers from Winrock International’s “Woman for Woman” centers in Rovno, Lviv, Kharkiv, Chernivtsi, Zhitomer and Donetsk, who can then provide further trainings throughout their regions. Jessica Nowlin works in Sustainable Economic and Organizational Development with Crisis Center Sezim for Women and Family in Bishkek, Kyrgyzstan. Sezim has one of the only shelters in the country, along with two hotlines (one for domestic violence victims and one for victims of trafficking in persons), counseling services for victims of violence and trafficking, legal and psychological consultations, a newsletter, and 7 affiliate centers in Chui and Issyk-Kul Regions that conduct seminars for women and men, including law enforcement officials and teachers. Recently, Jessica helped Sezim win a grant from the New Zealand Embassy in Moscow to implement a work program for former Sezim clients. The women received training in the creation of national handicrafts to be sold locally and internationally. The center intends to expand this program in the future to enable current and former clients to generate income in order to help them reintegrate into society after their experiences with violence. Jessica also recently assisted Sezim in acquiring a grant through the Peace Corps Partnership Project for the 16 Days Against Gender Violence Worldwide Campaign. Sezim will present (with secondary school students) plays in local villages about bride kidnapping (a common practice here), provide three seminars for university students in Bishkek, conduct a media campaign and distribute pamphlets throughout the city of Bishkek with information about Sezim and other crisis centers in the country. In another exciting development, the Kyrgyz government recently donated new office and shelter space to Sezim in a former hospital wing. In addition to working on grant writing and translating, Jessica is also participating in seminars on domestic violence, using information about domestic violence statistics and domestic violence law from Minnesota and the United States. For presentations on women’s issues in Kyrgyzstan given to Peace Corps volunteers and to non-English speakers (mainly university students), she compiled a manual about domestic violence and trafficking, using resources from the Stop Violence Against Women website and other sources. The manual provides a broad range of information on domestic violence, human trafficking, and legislation relating to these subjects in both Kyrgyzstan and the United States, as well as contact information for NGOs in Kyrgyzstan that work on domestic violence and trafficking and programs to aid victims in the United States. Jessica commented that the Stop Violence Against Women website and other sources “have been indispensable in that pursuit of information [for the training manual]. I will continue to use it as my work goes on…”
Former Lobbyist Discusses Azerbaijan's New Law on Trafficking
Yuliya Gureyeva, National VAW Monitor for Azerbaijan, interviews Maryam Haji-Ismayilova, a former lobbyist on trafficking issues in one of the international organizations present in Azerbaijan, on Azerbaijan’s new trafficking law. 1. Do you think that the newly adopted Law will be important tool in combating trafficking in Azerbaijan? Why? What difference will it make? Yes, definitely. Legal basis is the prime tool in combating any crime and trafficking in persons is not an exception. The Law starts with definition that makes clear the distinction between trafficking in persons and smuggling or irregular migration. Before, trafficking in persons was frequently incorrectly interpreted and understood by some government, non-government and media representatives. Now this problem will be solved. Another important outcome of the Law will be control and coordination of actions taken by all stakeholders. 2. What are the main features of the Law? The Law presents General provisions, including definition, goals and basic principles in combating trafficking in persons; Organizational basis for combating trafficking in persons that are NAP, National Coordinator, specialized police unit, responsibilities of Government and cooperation with NGOs; prevention, social rehabilitation and protection of victims, which include provision on shelter; Specificity of the cases related to trafficking in persons, and liability for this crime and international cooperation. 3. Could you please tell us about drafting and lobbying processes? What were the main constraints you had faced? A lot of parties were involved in drafting and lobbying process, but mainly President’s Office, National Coordinator, Embassy of the United States, OSCE and the International Organization for Migration (IOM). International models and expertise were used while drafting the Law. After joint consultations and changes the draft was sent to the Parliament for revision and adoption. In general, we can say that the Law was passed in a short period of time comparing it to the practice of other CIS and even European countries. 4. Do you think that now Azerbaijan has enough mechanisms to combat trafficking? What else must be done in this direction? Law, although extremely important, was only the first step. The next step to be made is to amend Criminal Code and include necessary articles that penalize traffickers. Currently such articles don’t exist. The second is to train staff of CT Unit, police, border guards, judiciaries, prosecutors, lawyers and local NGOs. In one word all those, who will be involved in combating trafficking. Next is to open secure accommodation and hot-line and provide full protection and rehabilitation to victims. In parallel, information campaigns shall be conducted to raise public awareness on risks and terrible consequences of trafficking. For the Azerbaijan country page, click here.
Hungarian Domestic Violence Case before CEDAW: Victory or Another Pile of Papers for the Archives
Julia Spronz, Lawyer, activist Habeas Corpus Working Group and NANE Women’s Rights Association On 26 January 2005, the UN Committee on the Elimination of Discrimination against Women rendered a decision in a case submitted by a Hungarian woman under the Optional Protocol to CEDAW. The author of the communication (Ms. A.T.) claimed that Hungary violated the Convention on the Elimination of Discrimination against Women because it had failed in protecting her from her former common law husband. The views of the Committee adopted in the Hungarian case will be of utmost importance in the advocacy work of Hungarian NGOs acting on the field of domestic violence. Not only because this is the first communication against Hungary, but also beacuse this is the first time that the CEDAW Committee considered a claim in the merits. (In the previous incident, Ms. B.-J. vs. Germany, the Committee declared the communication inadmissable). Taking into consideration the lack of experience regarding the effect of CEDAW’s Optional Protocol, the development after the adoption of views cannot be limited to private affairs of Hungary, but it has its international influence, as well. Even though Ms. A.T., the author of the communication had been in contact with several NGOs and experts, who dedicate their activities to combating violence against women and children, who provided emotional support and attended some of the trials in her case, formally she submitted the communication to CEDAW Committee by herself 2003. Her case follows the average patterns of domestic violence proceedings taking place thousands of times a year in Hungary. Armed with a firearm and usually drunk, the former common law husband kept the woman and their two children in constant terror for years. The woman has been unable to escape as the very few “shelters” that exist in Hungary are not equipped to accommodate her brain-damaged son. The perpetrator could not be removed from the flat, because of the lack of availability of any protection order or restraining order. The woman has initiated legal proceedings in three directions: 1. civil proceeding on division of their common property (the apartment they lived in together), 2. “trespass proceeding” on the exclusive use and possession of their common flat, 3. criminal procedure concerning two incidents of battery and assault resulting her hospitalization. After the exhaustion of all domestic remedies the situation looked as follows: the man was fined in the criminal procedure (cca. USD 365), the procedure over the couple’s ownership of the flat has been suspended due to the lack of official registration of the property and the man received authorisation by the Hungarian courts to return and use the flat. By passing a judgement of shared access to the apartment, the court neglected the fact of domestic violence and put the woman’s and the children’s lives, physical and mental health to constant risk. For this reason, the plaintive asked for urgent interim measures of protection together with submitting her claim. Instead of the immediate and effective protection, which the Committee had requested from the Hungarian Government, all what had happened was that the Government Office for Equal Opportunities made some recommendations concerning the case. They drafted the possibilities of rendering a legal representative for the woman, convening a case-conference with the participation of all authorities affected to determine further actions to be performed to solve the situation and contacted the competent family-and child-care service at the local level. Apart from the recommendations no concrete steps have been done as interim measures to avoid irreparable damage to A.T. After consideration of her claim, the CEDAW Committee found that the Hungarian Government had committed a violation of the woman’s rights under the Convention. To remedy the situation, it called the Hungarian Government to take immediate and effective measures to secure the protection of the woman and her children by providing her with a safe home, appropriate child support and legal assistance. In addition she should get reparations for physical and mental harm she suffered. In its general recommendations, the Committee suggested that the Government take the necessary steps to protect victims of domestic violence in Hungary by promoting women’s human rights, by fully complying with its legislative obligation under national and international norms, by providing training on the requirements of CEDAW for legal professionals, by implementing the Committee’s former comments of the Hungarian country report, by accurately investigating all allegations of domestic violence, by providing women with safe access to the judicial system and by assuring rehabilitation programmes for offenders. The Committee also required the Hungarian Government to translate and distribute its views and recommendations country-wide. The Hungarian Government was given six months to comply with the decision of the Committee. It has now been four months since the decision was rendered and so far no notable steps have been made by the Government. Our scepticism is heightened by the Government’s failure to comply with the Committee’s request for interim measures. We believe it is useless to wait any longer. The CEDAW decision gives us a perfect opportunity to expand the present legal measures available to protect victims of domestic violence. Apparently the Hungarian Government will not act of its free will and CEDAW recommendations are legally not binding. Women NGOs therefore need to increase their activities demanding the enforcement of the implementation of the recommendations concerning both the individual case and general requirements. It is also our responsibility to ensure that the Convention shall not remain a formal declaration but effective legal tool in our hands. Publicity should be utilized not only to make the Convention known and to propagate the Optional Protocol, but also to draw the attention to the sabotage of the Hungarian Government concerning domestic violence legislation. By our actions we hope to induce the Hungarian Government to execute the CEDAW recommendations which will have a positive impact on international community as well.
Immigration Help for Individuals Surviving Domestic Violence
By Angela Bortel, Staff Attorney, The Advocates for Human RightsUnfortunately, domestic abuse and domestic violence occur far too frequently in homes all around the world, including here in the U.S. In 2001, the Bureau of Justice Statistics reported that more than half a million American women (588,490 women) were victims of nonfatal violence committed by an intimate partner. When the violence is not stopped, it can eventually turn fatal. On average, more than three women are murdered by their husbands or boyfriends in this country every day. While nearly 85% of abuse happens to women, men can also be victims of abuse and violence from their partners. This article will discuss some specific immigration options for some individuals leaving violent relationships, as well as some general concerns individuals in violent and abusive situations may have about pursuing this relief. Anyone interested in pursuing immigration relief based on domestic violence should see a qualified immigration attorney before proceeding with any application to Citizenship and Immigration Services (“CIS”) because of the risk of being removed from the United States if CIS does not grant relief. It is also critical to work with an organization that helps individuals escaping domestic violence and abuse, such as a battered women’s shelter. The organization can help secure individual and group counseling, shelter and food, as well as other benefits. Most importantly, the organization will help create a safety plan to make sure that battered partners and their children can try to leave abusers in the safest way possible because leaving an abuser often leads to an increased risk of violence. What are domestic violence and domestic abuse? Many people think that domestic violence refers only to physical violence. However, domestic violence and abuse include much more than just physical abuse. While the emotional and psychological abuse is often accompanied by physical violence, that is not always the case. Here are some examples of non-physical abuse that often occur in an abusive relationship: · The abuser doesn’t let you visit your friends and family; · The abuser won’t let you work, look at the monthly bills and analyzes all of your receipts; · The abuser threatens to hurt you, but hasn’t hurt you yet; · The abuser harms the family pets; · The abuser insults you constantly and tells you that “you’re nothing;” and · The abuser insults your parenting and threatens to take the children. These are just a few examples. Moreover, over time, abusive relationships can evolve into violent relationships. Immigration Options for Immigrants Surviving Domestic Violence The Violence Against Women Act (“VAWA”) These series of laws allow victims of domestic violence, spouses, children, and now, in some cases, parents who suffer abuse at the hands of U.S. citizen (“USC”) and legal permanent resident (“LPR” or “green card holder”) family members to pursue immigration status on their own. In other words, these individuals' immigration status now or in the future no longer depends on the abuser. Unfortunately, individuals experiencing abuse from someone with another type of status or no status cannot apply for VAWA relief. To apply for relief under VAWA, you must show 1. a qualifying relationship, which includes: a. a legally valid marriage to a USC or LPR; b. a qualifying bigamy to a USC or LPR; c. a recognized parent/child relationship where the abusive parent is USC or LPR; or d. a recognized parent/son or daughter relationship where abusive son or daughter is USC; 2. a history of abuse, which includes physical battery and non-physical abuse, called “extreme cruelty;” 3. a shared residence with the abuser; and 4. good moral character. It is possible to apply for VAWA relief either with CIS or in Immigration Court. Relief under VAWA enables recipients to stay in the U.S. and get a green card independent of the abuser. U Visa U visas are available to individuals who have been victims either of serious crimes in the U.S. or crimes that violate U.S. law. Some examples of crimes covered include rape, torture, trafficking, incest, domestic violence, sexual assault, involuntary servitude, kidnapping, abduction, false imprisonment, extortion, perjury, and other offenses. To qualify, you show that you: 1. Suffered substantial physical or mental abuse as a result of having been a victim of criminal activity; 2. Possess information concerning the criminal activity; and 3. Have been helpful, are helpful, or are likely to be helpful to law enforcement or prosecutors. It is possible to get derivative status for the children, spouse, and, in some cases, the parent of a “U” visa holder. The U visa is granted for three years. At the end of three years, it is possible to apply for a green card. “U” visa holders may also be eligible for employment authorization under existing regulations. Please note that there are no regulations yet for U visas, so CIS is only giving temporary relief until those regulations come out. Asylum In some circumstances, survivors of domestic violence may be eligible to apply for asylum. Possible scenarios include fleeing the home country due to an abusive relationship, or fearing return to the home country because the abusive spouse was deported from the United States. The United States grants asylum to individuals located in the country that experienced past persecution or have a “well-founded fear” of future persecution because of their race, religion, nationality, political opinion or “membership in a particular social group.” This area of law is not settled regarding domestic violence-based claims, but people have won cases based on domestic violence claims. First, it is necessary to demonstrate that the abuse experienced constitutes persecution. It is very important to be as specific and thorough as possible in detailing the abuse. Second, the abuse must be linked to one of the five bases for asylum, typically membership in a particular social group. Third, it is necessary to show that the authorities in the home country are not willing or not able to protect the individual from the abusive situation. This element can be satisfied by showing, for example, that the country lacks any laws against domestic violence, or that the police and other government officials do not enforce the laws they do have. It is difficult to prove a case for asylum due to fear of domestic violence because judges are afraid that giving one person asylum on this ground means that they will have to give asylum to thousands and thousands of people. Consequently, it is essential to demonstrate how a particular case is specific and unique. For the same reason, it is also important to try and provide as many documents as possible corroborating the story. Common Survivor Concerns “I never called the police, so I don’t have any proof he hurt me. It’s just my word against his.” Police reports, court records, protection orders, medical records and other documents are helpful, but they are not required evidence. There are other ways to document the abuse. Survivors can write the story of their abuse, which will be the most important document in any immigration application. Also, statements from family members who know about the abuse, or from ex-girlfriends of the abuser who also experienced violence from him make good evidence. A survivor should not be deterred from seeking help just because she thinks she cannot “prove” it. “Won’t I lose any hope of getting legal immigration status if I leave my partner? He says he can have me deported.” Many abusers who are citizens or have some valid immigration status often threaten to have the person they are abusing deported. This is powerful threat because often times the person experiencing the violence depends on the abuser for her immigration status. These types of threats are simply another way for abusers to exercise control and extend their reign of terror. Individuals who have actually experienced violence or other forms of abuse, including psychological and emotional abuse, may be eligible to apply for the different kinds of immigration relief delineated above without relying on the abuser. “What if I am out of status right now?” As noted above, valid immigration status is not necessary to apply for many types of relief as an individual who has experienced domestic violence and/or abuse. There are ways to apply without relying on the abuser. There is a risk of not receiving status and being placed in removal proceedings, so it is extremely important to work with a qualified immigration attorney. How to get help? Survivors can call, email or visit a battered women’s shelter or crisis center. Centers often offer you counseling and many other services that can facilitate leaving the abusive relationship. Such organizations will also help formulate a safety plan and emergency plans to try and ensure the safety of the survivor and her family. The organization can also refer survivors to a competent immigration attorney. In certain cases, survivors may also be able to contact the attorney helped them enter the country, although she may not be able to represent survivors in cases where the attorney previously represented both the survivor and abuser. Survivors should absolutely avoid approaching CIS or any other branch of Department of Homeland Security for help without the help of an immigration attorney. The risk of removal from the United States is too high. Leaving an abusive relationship is never easy. It takes a lot of time and support. With help from friends, family, domestic violence advocates and a good immigration attorney, it may be able to start over with an independent, safe life.
Minnesota's New Domestic Abuse Strangulation Statute
Between 20 and 40 women are murdered each year in Minnesota by a domestic partner, often as they are attempting to leave an abusive relationship. Lawyers and lay persons alike have strong opinions on when the government should intervene in internal family matters, and the costs of doing or not doing so. By Kelly Francis A two-year old boy is lying on his back on the floor, kicking and crying as his father holds a plastic bag over his head. His mother, having heard the muffled cries, walks in to find the 6 foot 3, 290-pound father hovering over the tiny boy, whose limbs are flailing as he fights for air. The father is former Vikings’ defensive lineman Darrion Scott, who was charged earlier this year with felony domestic assault by strangulation, a relatively new criminal offense enacted by the Minnesota legislature in 2005. Scott asserted that he was trying to entertain his son by placing the plastic bag over his own head and pretending to be the “bogeyman.” When his son became upset, Scott placed the bag over the child’s head to show him that it would not hurt him. According to Scott, his son became even more upset and the bag became hooked on the boy’s chin. Scott claims he was trying to remove the bag from his son’s head when the boy’s mother entered the room. Scott admitted that his conduct was “stupid and reckless” and pled guilty to child endangerment, a gross misdemeanor carrying a penalty of up to one year in prison. In exchange, felony domestic assault by strangulation charges were dropped and Scott received a two-year stayed sentence and a $200 fine. Scott faces up to a year in jail if he has any contact with his son, or the boy’s mother other than contact approved by family court. The charges and eventual sentence imposed against Darrion Scott are an example of the complicated nature of domestic violence. Victim advocates are frustrated by cases like Scott’s that involve alleged strangulation but ultimately result in misdemeanor sanctions. Meanwhile, critics of the reach and power of domestic abuse laws cite a general concern that a parent’s momentary misstep and lapse in judgment could result in criminal charges, or that the laws can be used to gain advantage in other proceedings, such as a child custody case. On both sides of the debate, lawyers and laypersons alike have strong opinions on when the government should intervene in internal family matters, and the costs of doing or not doing so. “In cases such as this, our office strives to pursue justice,” Hennepin County Attorney Mike Freeman stated in regards to the Scott case. “Domestic violence is pervasive in our society, and unfortunately, sometimes ignored. We take these cases very seriously and provide an array of resources to victims. Our award-winning Domestic Abuse Service Center is an example of the types of resources needed to address this problem.” A New Tool in Domestic Violence Prosecution: Passage and Impact of the Felony Strangulation Law Between 20 and 40 women are murdered each year in Minnesota by their partner or spouse, often as they are attempting to leave the abusive relationship. Sometimes they are strangled. Sometimes they are shot or stabbed. Some have even been run down with a car or set on fire. Last year, 22 women and 10 children were killed, according to the Minnesota Coalition for Battered Women’s annual Femicide Report.1 Twenty-four children were left without mothers. Seven children were present at the time of the murder or discovered their mothers’ bodies. For these children, this cycle of violence is likely to continue, as research has shown they are far more likely to fall into abusive relationships as adults, or become abusers themselves.2 Research has also shown that most domestic homicides are preceded by an incident of strangulation.3 Whether by use of an electrical cord, an article of clothing, an abuser’s bare hands or even a plastic bag, strangulation is a red flag that violence is escalating and homicide is possible.4 After only 50 seconds of oxygen deprivation, the victim rarely recovers. Until recently, Darrion Scott could not have been charged with felony domestic strangulation. In 2005, however, Minnesota became one of only six states to enact legislation making domestic abuse strangulation a felony, punishable by up to three years imprisonment, a fine of $5,000, or both. Previously, episodes of domestic strangulation were chargeable as misdemeanors, with perpetrators serving little or no jail time. The need for legislative change became apparent in connection with a groundbreaking experiment in domestic violence prosecution. In late September 2000, the Ramsey County Attorney’s Office partnered with the St. Paul City Attorney’s Office to focus on cases of domestic violence involving children. The two offices formed the Joint Domestic Abuse Prosecution Unit, or JPU, as a means to break the cycle of domestic violence from generation to generation, primarily by providing counseling to affected children and aggressively prosecuting incidents of domestic violence at their outset. Since its creation, the JPU has taken a comprehensive approach to domestic violence prosecution and has been able to close some common gaps in the system. City and county offices work together to identify repeat abusers. City and county prosecutors identify escalating violence and parole violations they might have overlooked had they been working separately. Despite these advances, prosecutors identified a need for stricter penalties in cases of domestic strangulation, not only because of the lethality of these assaults, but also because strangulation frequently preceded even more violent episodes. Ramsey County Attorney Susan Gaertner led the effort to make it a felony to strangle a family or household member. The legislation, introduced and passed in 2005, defines strangulation as “intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person.”5 Despite the legislation’s quick passage and strong base of support (some legislators expressed surprise that this type of violence was not already a felony), thelaw’s impact is still being debated. In the wake of the Darrion Scott case, criticism and controversy will likely continue. Assessing the Initial Impact of the Domestic Strangulation Statute WATCH, an organization that monitors how courts handle cases of violence against women and children, issued a report in 2007 analyzing the strengths and weaknesses of the felony strangulation law.6 In compiling its report, WATCH relied on statewide charging statistics from the State Court Administrator’s Office, textual reviews of 76 Hennepin County felony and misdemeanor cases, and interviews with 18 Hennepin County criminal justice personnel, including victim advocates, law enforcement officers, judges, city and county attorneys, and probation officers. The report cited the law for enhancing victim safety and holding offenders accountable, as well as for increasing general awareness of the severity and potential deadliness of domestic strangulation. WATCH also noted some inconsistencies in enforcement and offered recommendations for improvement. During the law’s first six months, WATCH found 17 cases that Hennepin County charged as misdemeanors rather than felonies, despite facts indicating that the defendants had placed their hands around the victims’ necks. Prosecutors originally charged six of these cases as felonies, but later reduced them to gross misdemeanors or misdemeanors. WATCH pointed to a number of factors that may have influenced these charging decisions, including the precise terminology used to describe the assault, whether the victim received medical attention, and whether injuries were photographed or otherwise documented. In 51 percent of the felony cases WATCH reviewed, the complaint included the word “strangle,” whereas only 23 percent of the misdemeanor cases included the word. Similarly, 83 percent of felonies recited the statutory requirement of impeded breathing with phrases such as “almost lost consciousness,” “could not breathe,” “gasping for air,” or “began to pass out.” By comparison, only 12 percent of misdemeanor cases included this language. WATCH also noted that only 17 percent of felony cases and 12 percent of misdemeanor cases included photographs of injuries or other documentation showing “bruising,” “red marks,” “scratches,” “raspy voice,” “shortness of breath,” or “lightheadedness.” Large majorities of both felony cases and misdemeanor cases did not mention whether or not the victim needed medical attention. These gaps are significant not only for charging decisions, but also for successful prosecution. With victim recantation posing a significant obstacle at trial, physical evidence recovered and recorded at the scene of the crime remains crucial in securing a favorable verdict and protecting victims. Understanding the Lethality of Domestic Violence While it is not surprising that the domestic strangulation statute has not ended domestic violence, evidence shows that the legislation provides a useful tool for targeting the most serious offenders and holding them accountable. St. Paul alone saw an appreciable reduction in the incidence of domestic violence crimes in the past year. There were 107 reports of domestic strangulation in 2007, a slight reduction from 115 in 2006. More startling, domestic violence related police calls were down 16%, from 8,667 in 2006 to 7,663 in 2007.7 In past years, as many as half of the homicides in St. Paul were domestic homicides. In 2007, only one homicide resulted from domestic violence, and that case involved the unusual instance of a woman killing a man. St. Paul Police Chief John Harrington has credited the felony strangulation law as an essential element in bringing about these changes. Passage of the felony strangulation law is only one strategy for making Minnesota safer for spouses, partners, and children. For example, Ramsey County and St. Paul have begun compiling lethality assessments of offenders, and have developed a checklist for officers responding to domestic violence calls. One Hennepin County prosecutor has suggested streamlining and expediting procedures in domestic violence cases, since victims are less likely to minimize events closer to the time of the assault. While domestic violence is an area where repeated offenses and death are particularly high, the public does not always understand its lethality. Even victims and abusers may minimize violent incidents as quarrelling that has gotten out of hand, not understanding how violence can escalate to murder. Passage of the felony strangulation law has already heightened awareness of the dangers of domestic violence and the need for proactive intervention. Ramsey County Attorney Gaertner has stated that “[t]he research is clear that strangulation is a very important predictor of domestic homicide and that strict enforcement of strangulation laws absolutely can enhance victim safety.” For other jurisdictions currently considering similar legislation, “[t]here simply isn’t any reason not to take this step.” Notes 1. Minnesota Coalition for Battered Women, Femicide Report, 2007, p. 5-6. 2. U.S. Dept. of Justice, Breaking the Cycle of Violence: Recommendations to Improve the Criminal Justice Response to Child Victims and Witnesses, 1999, p. 4-7. 3. Minnesota Coalition for Battered Women, Special Femicide Report: Strangulation and Women and Children Murdered in Minnesota, 1989-2005, 2005, p. 27-28. 4. National Center for Prosecution of Child Abuse: “And then he Choked Me”: Understanding and Investigating Strangulation, 2007, p. 1-2. 5. Minn. Stat. § 609.2247, Subd. 1(c). 6. http://www.watchmn.org/PDF/Jan07final%202-19-07.pdf 7. Office of the Ramsey County Attorney, Domestic Violence Statistics, 2007. -------------------------------------------------------------------------------- KELLY FRANCIS is a recent graduate of the University of Minnesota Law School and was admitted to the bar in October of 2006. She is currently working in the Hennepin County Attorney's Office as the Civil Division's prevailing wage specialist. Kelly currently serves on the Membership Committee of the MSBA and the Public Policy Advocacy Committee for Minnesota Women Lawyers. Article reprinted from Bench & Bar of Minnesota, Vol. 65, No. 8, September 2008, with permission of author.
New Tactics in Human Rights
New Tactics in Human Rights, a project of the Center for Victims of Torture, has published new notebooks on innovative tactics used to address urgent human rights issues. STOPVAW would like to highlight two notebooks in particular as useful tools for strategies in combating violence against women:
Presentation on Women and Armed Conflict
On 11 March, the Women’s Human Rights Program at The Advocates for Human Rights sponsored a presentation on Women and Armed Conflict at the University of St. Thomas School of Law. Speakers at the event included Cheryl Robertson, PhD, MPH, RN and Assistant Professor of the University of Minnesota School of Nursing and Zainab Salbi, President and CEO of Women for Women International and keynote speaker at International Women’s Day in Minnesota. Dr. Robertson began the presentation with a discussion on the effects of war on women and their communities. Dr.. Robertson pointed out that women are oftentimes portrayed as victimized and helpless in the context of war. In reality, women in war have no choice but to remain strong in order to survive. Amidst chaos, women are forced to take on profound responsibilities to promote family cohesion. According to Dr. Robertson, war produces numerous public health consequences including death and instability, mass population displacement, food shortage and hunger, and destruction of health care infrastructures. These consequences can result in the erosion of once-strong community and familial ties alongside the build-up of underground criminal networks that replace formal civil society. In order to protect their family, women often have to deal with gangsters and mafia types, oftentimes behaving way outside cultural norms in exchange for food and shelter. It is of no surprise that such circumstances leave their mark on these women. Ms. Robertson suggested that women begin the process of recovery within a community context as they gradually rebuild the routines and connections of life. Zanaib Salbi also discussed the issue of women and armed conflict. Ms. Salbi stressed that war is infinitely more complex than the average American believes it to be. As a survivor of the Iran-Iraq war, Ms. Salbi is angered every time she watches the computer-generated missiles that news agencies project on television. War is not clean, Ms. Salbi reminded the audience. It is nothing like the computer generated visuals. Rather, war is bloody, violent and tears apart the lives of individual women. Ms. Salbi told the story of a 19 year-old Afghani woman who whose father went crazy after the bomb that was dropped on her house killed her only brother. In order to survive, the woman was forced to dress as a boy. She worked as a farmer and a construction worker and sold sacks of rice so that she could earn money to feed her family. “A bomb is not just a bomb,” stated Ms. Salbi. It is capable of completely changing an individual’s life. To better understand women and armed conflict, Americans need to see war through new paradigms. Ms. Salbi suggested three ways to achieve this. First, the international community needs to begin to take responsibility for war. Ms. Salbi noted the situation in the Democratic Republic of Congo where more than 80,000 women have been subjected to rape, some of whom were raped by UN peacekeepers in the region. The U.N. should not be permitted to sanction this type of violence. Second, people need to shift the view of violence against women in war from something that is considered a natural consequence of war to an indicator of the direction of a particular society. “Bad things start with women,” Ms. Salbi stated. For example, the Taliban first used violence against women before it targeted society at large. Finally, people need to talk more about the complexities that women face in a war setting. As an example, Ms. Salbi suggested that when a woman is raped in war, she is frequently regarded as a rape victim. Nevertheless, for this woman, rape is just one of the many hardships she must endure post-war. She has also been exposed to HIV/AIDS, her husband may have left her, she may be forced to abandon her children and leave her home; as such, she will have little means to survive. The post-war period should also be approached differently: It should be seen as a window of opportunity for women to negotiate women’s rights. During war and in the immediate post-war period, women have new personal mobility. Rather than encourage women to return to the private life of their communities, the international community should strive to support women who have entered civil society. In addition, the post-war period provides women with an opportunity to negotiate legal and political rights. Ms. Salbi underlined that if women are not at the negotiating table in the post-war setting, they end up by being negotiated. The post-war windows should be embraced by Americans and the international community at large. For, as Ms. Salbi stated, “Stronger women lead to stronger nations.”
Protecting the Privacy of Sexual Assault Victims: Evidence of Prior Sexual Conduct
Kelly O'Neill Moller, volunteer attorney Countries working to protect sexual assault victims and hold perpetrators accountable for their crimes of sexual violence should prevent re-victimization, particularly in the introduction of evidence of a victim’s prior sexual conduct. In 2008, the United Nations Division for the Advancement of Women in the Department of Economic and Social Affairs released the “Handbook for legislation on violence against women.” This handbook recommends that “legislation should prevent introduction of the complainant’s sexual history in both civil and criminal proceedings.” From “Handbook for legislation on violence against women “, 3.9.7.2 (2009). Such legislation is generally termed a rape shield law. Every U.S. state currently has some form of a rape shield statute. See National Center for Victims of Crime (FAQ Rape Shield Laws).[1] There are certain exceptions to the introduction of prior sexual conduct evidence in such laws. These exceptions should incorporate sufficient protections for the victim while maintaining due process for the criminal defendant. The case below, which interprets Minnesota’s rape shield statute, may provide useful insights into ways sexual assault laws may protect a victim’s privacy, encourage reporting of sexual assault, and prevent the admission of irrelevant evidence. The Minnesota Dominic Jones case A young woman, P.J., and her friend went to the apartment of several male college students. P.J. drank seven to eight shots of vodka. Three of the men sexually assaulted P.J., who later lost consciousness on the couch. When she was unconscious, the appellant, Dominic Jones, also sexually assaulted her. P.J. later reported that three men forced her to engage in sexual penetration. P.J. testified that before trial she had never met or seen appellant, Dominic Jones. The jury found appellant guilty of fourth-degree criminal sexual conduct (sexual contact with a victim who is physically helpless). Prior to trial, defense counsel had moved for permission to admit evidence regarding P.J.’s sexual contact with the other three men on the evening of the assault. The trial court denied the motion under Minnesota’s rape shield statute. In affirming the conviction on appeal, the Minnesota Court of Appeals held that the trial court properly excluded evidence of P.J.’s prior sexual conduct with the other three men. State v. Jones, No. A08-0966 (Minn. Ct. App. July 7, 2009) (unpublished). The rape shield statute was designed to protect victims’ privacy, encourage reporting of sexual assault, and prevent the admission of irrelevant evidence. From Minnesota County Attorney’s Association Sexual Assault Prosecution Manual 63 (2006) (hereinafter “Manual”). Minnesota has both a rape shield statute, Minn. Stat. § 609.347 (2008), and a rule of evidence, Minn. R. Evid. 412, governing the admission of past sexual conduct of the victim. The statute is generally considered to provide greater limits on the admissibility of a victim’s prior sexual conduct. Minn. Stat. § 609.347 prohibits the admission of the victim’s previous sexual conduct unless the defendant first seeks a court order. In order for the evidence to be admissible, the court must determine that an enumerated exception applies and that the probative value of the evidence is not substantially outweighed by its prejudicial nature. For example, a defendant may argue that exclusion of a victim’s prior sexual conduct violates the constitutional right to present a defense and to cross-examine witnesses. The rape shield statute recognizes, however, that prior sexual conduct is generally irrelevant. A defendant has no right to introduce irrelevant evidence or evidence in which the prejudicial effect outweighs the probative value. See State v. Crims, 540 N.W.2d 860, 867-68 (Minn. Ct. App. 1995). Even if such evidence may arguably be relevant in a particular case, trial courts may limit a defendant’s right to cross examine a witness based on concerns regarding harassment, prejudice, confusion of issues and witness safety. Michigan v. Lucas, 500 U.S. 145 (1991). In the majority of cases in Minnesota, the defendant’s constitutional rights have not been violated by the exclusion of the victim’s prior sexual conduct. See Manual at 73-74. Consent as a defense falls under one of the enumerated exceptions in Minnesota’s rape shield statute. Under this exception, when the defendant seeks to admit the victim’s sexual conduct with others, he must show that the victim fabricated prior sexual assault allegations. In the Dominic Jones case, the court of appeals concluded that such a showing was not made. Additionally, when consent is a defense and in order for the victim’s prior sexual conduct with others to be admissible when consent is a defense, the prior conduct must establish a common scheme or plan. In order to satisfy this requirement, the prior sexual conduct must establish a pattern of clearly similar behavior; to qualify as a pattern, the sexual conduct must occur regularly and be similar in all material respects. See State v. Davis, 546 N.W.2d at 34. In the Dominic Jones case, the court of appeals rejected appellant’s argument that P.J. engaged in a common scheme or plan. The court noted the “significant distinctions” between the prior incident with the three men and the incident with appellant. For example, P.J. reported that she was physically coerced to engage in penetration with the three men, but she was unresponsive and likely unconscious during appellant’s assault. Jones, No. A08-0966. Although a rape shield statute may provide that evidence of prior sexual conduct between the accused and the victim is admissible when consent is a defense, such evidence still may not meet the test of relevancy or may be more prejudicial than probative.[2] When consent is a defense and the defendant seeks to offer evidence of prior sexual conduct between the complainant and himself, there are limits on a defendant’s ability to present such evidence. There are cases where courts have excluded such evidence when the victim has denied prior consensual sexual conduct. See, e.g., State v. Rothering, 397 N.W.2d 346 (Minn. Ct. App. 1986) (noting that the potential for harm outweighed any probative value the evidence might have had); Graydon v. State, 953 S.W.2d 45 (Ark. 1997) (stating that the purpose of the rape shield in protecting victims and encouraging victims to participate in prosecution of attackers “would surely be thwarted if every defendant in a rape case was allowed to present uncorroborated ‘evidence’ that he and the victim had previously engaged in sexual intercourse over the victim’s denial that she had ever known her assailant before the incident”). A rape shield statute serves as a useful tool to prosecutors in preventing irrelevant evidence and in protecting a victim’s privacy. The Dominic Jones case is a good example of how such a statute achieves these goals. Issues of consent, force, and introduction of a victim’s prior sexual conduct occur in most, if not all, cases of sexual assault. Those drafting, implementing, and monitoring sexual assault legislation should ensure that the laws provide sufficient privacy protections to sexual assault victims while maintaining due process protections for defendants.
Protecting Victims of Violence through the Domestic Abuse No Contact Order
By: Mary Ellingen, Staff Attorney, and Michelle Collins, Intern, The Advocates for Human Rights I. Introduction Countries in Central and Eastern Europe and the Former Soviet Union (CEE/FSU) may find that the Domestic Abuse No Contact Order (DANCO) is an effective way to protect victim safety during criminal proceedings, in addition to the civil remedy which is provided in civil Orders for Protection. Experts agree that the issuance of a DANCO must be consistently communicated to law enforcement officials, and clearly place the authority to seek a DANCO with the prosecutor, while also allowing the victim a chance to express her wishes. In Minnesota, a DANCO may be used in certain criminal proceedings to achieve similar ends as a civil Order for Protection (OFP), by making the defendant subject to prosecution for contacting a victim of the defendant’s crime. Minnesota is one of many states whose statutes either authorize or mandate the issuance of a protective order as a condition of bail or pretrial release in a criminal proceeding; others include Alabama, Alaska, Colorado, Idaho, Illinois, Kentucky, Louisiana, Maine, Montana, New Hampshire, New Jersey, New York, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Utah, Washington and Wisconsin.[1] This article will first explain the content of the Minnesota Statutes relating to DANCOs, and then discuss problems that have come up as the DANCO has been used in Minnesota. While there have been some problems with the implementation of the DANCO in Minnesota, they are solvable. II. The DANCO in the Minnesota Statutes A Domestic Abuse No Contact Order (DANCO) is a court order issued against a defendant in a criminal proceeding as specified in Chapter 518B.01, Subdivision 22 of the Minnesota Statutes. The criminal proceeding may be for domestic abuse, harassment or stalking committed against a family or household member, violation of an order for protection, or violation of a prior DANCO.[2] A petition for an Order For Protection (OFP) may only be filed in a case of domestic abuse.[3] However, an OFP may also contain remedies for issues related to the domestic violence, such as child support. Certain CEE/FSU countries allow such additional remedies in their domestic violence laws.[4] A DANCO does not address these remedies. A DANCO may be issued before final disposition of the case or after sentencing. A person who knowingly violates a DANCO is guilty of a misdemeanor, or a gross misdemeanor if the violation is within ten years of “a previous qualified domestic violence-related offense conviction or adjudication of delinquency.”[5] When a peace officer has probable cause to believe a person has violated a DANCO, the statute mandates that the officer arrest the person without warrant and take him or her into custody. This occurs even when the violation did not take place in the presence of the officer, as long as the officer can verify the existence of the DANCO.[6] A peace officer may not issue a citation in lieu of arrest and detention for violation of a DANCO.[7] Once arrested, the individual must be brought to the county jail or police station, where the sheriff or the officer in charge of the station will issue a citation in lieu of continued detention unless it reasonably appears that release of the person “(1) poses a threat to the alleged victim or another family or household member, (2) poses a threat to public safety, or (3) involves a substantial likelihood the arrested person will fail to appear at subsequent proceedings.”[8] These provisions, especially the mandatory consideration of safety factors prior to issuance of a citation by the sheriff or officer in charge, should help to ensure the security of the people intended to be protected by the DANCO. If a citation is not issued, the person charged must be brought before a court without unnecessary delay.[9] There, the judge must consider the same factors listed above in order to determine pretrial release conditions, and make findings on the record.[10] The judge may impose various conditions of release or bail designed to protect the alleged victim’s safety and ensure the person’s appearance at future proceedings.[11] Immediately after the issuance of a citation in lieu of continued detention or the entry of an order for release, but before the person is released, the agency having custody of the individual must make a reasonable, good faith effort to orally provide certain relevant information on the person’s release to the alleged victim, other local law enforcement agencies involved in the case, and at the victim’s request, any local battered women’s or sexual assault program.[12] In cases of an order for conditional release, the information must also be provided in writing, along with a copy of the order, as soon as practicable.[13] In addition, the victim must be notified when a hearing is scheduled to review the possibility of release from pretrial detention.[14] Like the consideration of safety issues prior to release and the imposition of conditions of release or bail, these notification requirements should help make the DANCO an effective way to protect victims. III. The DANCO in Practice Advocates for domestic violence victims have identified two main problems with the DANCO as it has been put into practice in Minnesota: the slow and inconsistent flow of information from judges to law enforcement when DANCOs are issued, and the ability of victims to easily get DANCOs dismissed. These problems are almost certainly avoidable, and should not stop CEE/FSU countries from considering implementation of something like the DANCO. Based on the Minnesota experience, it seems that an effective DANCO system requires a consistent method of informing law enforcement when DANCOs have been issued, as well as an aggressive approach by prosecutors combined with an opportunity for victims to have their wishes considered. First, the process of making information about a DANCO’s existence accessible to the appropriate law enforcement authorities is slow and uncertain. Solving this problem is crucial because law enforcement officers must be able to verify the DANCO’s existence before making an arrest without a warrant for violation of it.[15] It appears that this problem may be remedied in Minnesota. Advocates report that the state court administrator’s office is working on getting DANCOs into the database used to track OFPs.[16] In addition, standardized forms should make the DANCO more recognizable to law enforcement over time, and emphasize its importance to the defendant as a separate order rather than just some additional language in a standard conditional release order.[17] If CEE/FSU countries consider implementing a mechanism like the DANCO, they could avoid this problem by ensuring that there is a reliable and efficient system in place for conveying information on DANCOs to all law enforcement authorities. Second, some advocates are concerned about the ease with which victims may request and receive dismissal of the DANCO, which leads to a blurring of the line between a criminal case brought by a prosecutor and a civil case brought by a victim.[18] Advocates are concerned that public defenders may tell the judge that the victim wants a DANCO dropped, and if the victim is present, the judge might even ask her for confirmation, on the record and in front of the defendant.[19] Scrutiny of a victim’s opinion seems inappropriate in a case brought by the prosecutor, not the victim. These problems are part of a greater tension between seeking protection of victims’ safety and respecting their autonomy.[20] Provided that safeguards allowing for victims’ input are in place, implementation of a procedure like the DANCO could be an effective way for CEE/FSU countries to navigate the tension between protection of safety and respect for autonomy. Advocates in Minnesota point out that victims sometimes want the state to take the lead. A victim unwilling to seek an OFP because her batterer will hold her responsible for this action and retaliate against her will often appreciate the fact that a DANCO is initiated by the prosecutor.[21] Ideally, wherever a DANCO system is in place, it should be clear to everyone involved that the prosecutor is in charge of the case, and while the victim should not be required to state whether she supports or opposes the DANCO (particularly not in front of the defendant), she should be given an opportunity to voice her concerns and have them considered. This way, the ultimate safety of the victim depends less upon her own choices than it would in the case of an OFP, but the other actors whose choices are important in this context, especially the prosecutor and judge, can take her desires into account.
[1] Jeannie Suk, Criminal Law Comes Home, 116 Yale L.J. 2, 16-17 (2006). [2] Minn. Stat. Ch. 518B.01, Subd. 22(a). [3] Minn. Stat. Ch. 518B.01, Subd. 4. [4] For example, see “On Measures Against Violence in Family Relations,” Republic of Armenia, Law No. 9669 of 18.12.2006 [5] Minn. Stat. Ch. 518B.01, Subd. 22(c). [6] Minn. Stat. Ch. 518B.01, Subd. 22(d). [7] Minn. Stat.Ch. 629.72, Subd. 1a(a). [8] Minn. Stat.Ch. 629.72, Subd. 1a(b). [9] Minn. Stat.Ch. 629.72, Subd. 1a(c). [10] Minn. Stat.Ch. 629.72, Subd. 2(a). [11] Minn. Stat.Ch. 629.72, Subd. 2(b). [12] Minn. Stat. Ch. 629.72, Subd. 6(a). [13] Minn. Stat. Ch. 629.72, Subd. 6(b). [14] Minn. Stat.Ch. 629.72, Subd. 7. [15] Minn. Stat. Ch. 518B.01, Subd. 22(d). [16] Email from Advocate, 9 April 2008. [17] Email from Advocate, 11 April 2008. [18] Emails from Advocates, 9 April 2008 and 11 April 2008. [19] Email from Advocate, 10 April 2008. [20] Email from Advocate, 10 April 2008 [21] Emails from Advocates, 10 April 2008.
Research on Violence Against Georgian Women and Their Right to Adequate Housing
For the Georgia country page, click here.An October 2003 report entitled, "Violence Against Women and Right to Adequate Housing: the Case of Georgia" has recently been made available to STOPVAW. The report is available on STOPVAW’s website in Georgia’s Country Page. The report was prepared by Ketevan Dadunashvili, Nana Khoshtaria, Marina Miqeladze, Rusudan Pkhakadze and Eka Iobadze from the Women's Advice Center "Sakhli", Marina Meskhi from the Georgian Young Lawyers Association and Tamar Sabedashvili from Oxfam GB Georgia. It was delivered at the Asia Pacific Regional Consultations, with the U.N. Special Rapporteur on the Right to Adequate Housing, which were held on 30-31 October 2003 in New Delhi, India. The subject addressed by the consultations was "The interlinkages between violence against women and women's right to adequate housing." According to this report, Georgian women are guaranteed under law equal rights with respect to the acquisition, alienation and inheritance of property. Nevertheless, women who divorce their husbands are often left homeless because of 1) customary inheritance practices that favor men, 2) the failure to include the woman's name on the registration of marital property and 3) the fact that many married women traditionally live in property owned by their spouse before marriage or by his family. This reality motivates some women to continue living with abusive spouses for fear that they would become homeless if they were to divorce their spouse. The report recommends that the government of the Republic of Georgia and non-governmental organizations conduct additional research, legal reform and public awareness campaigns addressing and promoting domestic violence survivors’ right to adequate housing.
Russian Translations of Domestic Violence Training Modules Now Available
STOPVAW has Russian translations of five domestic violence training modules now available:
StopVAW at the AWID Conference in Bangkok, Thailand, 27-30 October 2005
The StopVAW website will be featured in Bangkok, Thailand at the 10th Association for Women's Rights in Development (AWID) International Forum on Women's Rights and Development. The four-day forum is being held from October 27 through 30, 2005. StopVAW will be participating on the panel "New Tools for Changing Old Strategies in Combating Violence Against Women." The panel, moderated by Eva Foldvari of Open Society Institute Network Women's Program, will feature: - Yuliya Gureyeva, the National VAW Monitor for Azerbaijan
- Vanja Mikulic, the National VAW Monitor for Montenegro, and
- Cheryl Thomas, the Women's Program Director at The Advocates for Human Rights.
The panel members will present StopVAW as an innovative tool in the struggle against violence against women. The StopVAW website will also be displayed as a forum for information, advocacy and change at a technology booth during the conference. Every three years, the AWID conference brings together 2000 women’s rights activists from all over the world. Through plenary speeches, interactive sessions, workshops and debates, delegates will take on core and thought-provoking issues and create action plans to further gender equality and women’s human rights. The theme of this year’s conference is “How does change happen?” Stopvaw is being offered as a tool in bringing about that change.
Summary of United Nations "Good Practices in Legislation on Violence against Women"
Good practices in legislation on violence against women will assist States in “enhancing existing and developing new legislation on violence against women.” Advocates in CEE/FSU countries and other stakeholders should review and discuss ways to incorporate Good practices in legislation on violence against women, a report of the expert group meeting organized by the United Nations Division for the Advancement of Women and the United Nations Office on Drugs and Crime, released in November 2008. The expert group was convened in response to the Secretary-General’s 2006 in-depth study on all forms of violence against women and General Assembly resolution 61/143. Under current international law, States must address violence against women, including through the enactment of legislation, but at present, only about one-half of the member states of the United Nations have specific legal provisions on domestic violence. Goal of the Model Framework The group studied different legislative approaches to violence against women and developed this model framework for legislation based upon best practices and lessons learned. They agreed that the goal of legislation on violence against women should be: · To prevent the violence, · To ensure the accountability of perpetrators and · To protect and support the victims/survivors. The group recommended that drafters consult with stakeholders who will implement the legislation in order to determine the best legislative response, and that drafters also consult with those who will be affected by the legislation. The expert group called upon drafters to use a human rights perspective in their work. All legislation, new or existing, should be in compliance with international human rights standards. The group stated that legislation is just a first step to combat violence against women, and that it must be implemented effectively before it can be declared a success. Recommendations for Drafters of Legislation on Violence Against Women According to the model framework, drafters should: · Study reliable data on the scope and prevalence of violence against women, · Be aware of the causes of such violence, and the consequences incurred by victims/survivors and · Study the legislation of other countries which demonstrates good practices. By taking all of this knowledge into account, drafters will improve their law and enhance its effectiveness. Model Framework Recommendations (excerpts only) The model framework includes recommendations for all forms of violence against women, and also those which are specifically directed at domestic violence or sexual violence. Each recommendation is followed by an explanation and by examples of promising practices worldwide. Please refer to Good practices in legislation on violence against women for the full set of recommendations. Recommendation 1 C Legislation should: be comprehensive and multidisciplinary, criminalizing all forms of violence against women, and encompassing issues of prevention, protection, survivor empowerment and support (health, economic, social, psychological), as well as adequate punishment of perpetrators and availability of remedies for survivors. Recommendation 2 A Legislation should: provide for the amendment and/or removal of provisions contained in other areas of law, such as family and divorce law, property law, housing rules and regulations, social security law, and employment law that contradict the legislation adopted, so as to ensure a consistent legal framework that promotes women’s human rights and gender equality, and the elimination of violence against women. Recommendation 2 C Legislation should: mandate the allocation of a budget for its implementation by: - creating a general obligation on Government to provide an adequate budget for the implementation of the relevant activities; and/or
- requesting the allocation of funding for a specific activity, for example, the creation of a specialized prosecutor’s office; and/or
- allocating a specific budget to non-governmental organizations for a specified range of activities related to its implementation.
Recommendation 2 D Legislation should: provide a deadline regarding the length of time that may pass between its adoption and entry into force. Recommendation 2 E Legislation should mandate: - regular and institutionalized gender-sensitivity training and capacity-building on violence against women for public officials
- specific training and capacity-building for relevant public officials when new legislation is enacted, to ensure that they are aware of and competent to use their new duties; and
- that such training and capacity-building be developed and carried out in close consultation with non-governmental organizations and service providers for complainants/survivors of violence against women
The UN model framework also includes specific recommendations on defining and preventing violence against women and the response to such violence, including: protocols, specialized courts, police, prosecutors, penalties, and sentencing issues; monitoring the effectiveness of the laws; victim rights and support; protection orders; family law cases which involve domestic violence; civil lawsuits and asylum cases. Good practices in legislation on violence against women also includes commentary on legislation on violence against women from a number of countries. For further study and additional resources, please visit the United Nations Division for the Advancement of Women, Expert Group Meeting on good practices in legislation on violence against women website.
Technology and Violence against Women
Angela Bortel, Esq. Attorney and Owner, The Bortel Firm, LLC, www.bortelfirm.com As Microsoft founder Bill Gates said, “No one gets a vote on whether technology will change their lives.” Like it or not, technological advances such as the internet and cell phones have fundamentally altered how we work and live. Unfortunately, many abusers and stalkers have also adopted these advances as high-tech tools to assert their power and control. For example, an abuser may use global positioning devices to track their partner’s movements. Or an abuser may install software enabling him to track the keystrokes of anyone who uses that computer to gain access to his partner’s email account. Thus, individuals experiencing violence, abuse and stalking must understand how to use new technologies as safely as possible to protect themselves from abusers who can access their personal information with increasing ease. Service providers must incorporate these concerns into internal policies on technology usage by clients and employees and clients’ individual safety plans. Risks of Specific Technologies for Individuals Experiencing Violence and Abuse Survivors of abuse report the use of “many forms of technology - old and new - to control, coerce, and intimidate them during and after relationships.” This article will focus on select problems associated with cell phones and computers. In order to empower victims and not abusers, this discussion does not contain exhaustive details about technology safety for victims. Moreover, the information in this article must be reconsidered in light of problems associated with emerging and new technologies. Cell Phones Abusers use cell phones as a monitoring device by barraging victims with calls, text messages and voicemails. Moreover, abusers use the data generated by cell phone use to track a victim’s call history, which can heighten a victim’s isolation and compromise her safety. For example, an abuser in Rhode Island “assaulted his wife after finding the shelter telephone number in her cell phone call history; as a result she did not attempt to leave her husband for another year.” Computers and the Internet Computers provide abusers with access to reams of data they can exploit to control victims because computer usage leaves a vast “digital footprint” that is traceable. It is virtually impossible to completely erase such information. Indeed, the Safety Net Project notes that “abusers continue to identify and adapt new computer software and hardware tools that allow them to further stalk and harass their victims.” With the over 74% of Americans reporting regular use of the internet, the internet has emerged as another means of tracking victims and thwarting their escape from abuse. For example, abusers may use spyware software to intensely monitor a victim’s computer usage. The Safety Net Program offered the following example: A Michigan man was charged with installing a commercially available spy software program on the computer of his estranged wife at her separate residence. Without her knowledge, the program sent him regular emails reporting all of her computer activity, including all emails sent and received; all instant messages sent and received; and all Internet sites visited. Technology can enable increased harassment of victims. In a 2004 study, 10 to 15% of students surveyed reported receiving persistent emails or instant messages of a harassing nature. From January 1996 through August 2000, 42.8% of the cases investigated by the Computer Investigation & Technology Unit (CITU) of the New York City Police Department (NYPD) involved “aggravated harassment by means of a computer or the Internet.” Email alone was used to harass victims in approximately 79% of those cases. Technology and Service Providers Although technology has enhanced service providers’ ability to reach out to victims and educate those at risk for abuse, violence or stalking, agencies serving victims of violence must take steps to ensure that they use various technologies securely. Service providers should train staff on the risks associated with the use of specific technologies to avoid breaches of client security. For example, agencies should ensure that the headings of faxes do not inadvertently disclose the confidential location of an agency or shelter. That information could be discovered during the course of divorce proceedings and compromise the victim’s security. The National Network to End Domestic Violence has created a Data Security Checklist to protect client safety and the confidentiality of their data. Staff should also be trained on technology use to create more comprehensive safety plans for victims. Technology use should be included in safety planning, so that an abuser does not uncover evidence of plans to leave. The National Network to End Domestic Violence has created a guide to technology safety planning with survivors that is available in eight languages. Using Technology to Empower Victims and Survivors Service providers and individuals experiencing violence and abuse can harness technological advances to enhance their safety. This knowledge can also empower victims to take control back in their lives. In the U.S., initiatives to donate cell phones for domestic violence victims have grown in number over the last decade. The partnership between the National Coalition Against Domestic Violence and The Wireless Foundation has provided de-activated cell phones for emergency use by victims. These phones enable domestic violence victims to have a safe mode of communication unknown to their batterer, which is an important component when planning to leave the violent situation. Programs to train victims on safe technology provide another example. The Washington State Coalition Against Domestic Violence developed the Technology Safety Program to “help victims of domestic violence increase their knowledge of how to use technology safely and help minimize the risks that technology can pose when one is in an abusive relationship.” A recent study based in part on participant responses has found the program to be a success, with 86% of participants reporting high satisfaction. In addition, many participants expressed interest in sharing this knowledge with women in similar situations. Conclusion As technology increasingly extends its reach into daily life, service providers and victims must remain aware of how new technologies could be used by abusers. At the same time, they must also utilize that technology to reach victims and facilitate their safety.
The Advocates and Network Women's Program Conclude National Violence Against Women Monitor Two-Day Meeting
On July 7-8, 2005, The Advocates for Human Rights, the Network Women’s Program of Open Society Institute and twenty National Violence Against Women (VAW) Monitors gathered together in Tbilisi, Georgia to discuss StopVAW and the National VAW Monitor Program. The meeting included a general review of the country pages, the purpose and goals of the National VAW Monitor Program, and discussions about the newsletter and website translations. In addition, presentations on National VAW Monitors’ best practices were made by six countries’ Monitors, including Azerbaijan, Montenegro, Ukraine, Armenia, Bulgaria and Hungary. Each of these Monitors shared their experiences in identifying and monitoring news on violence against women, updating their country pages, conducting outreach on StopVAW, collaborating with other NGOs and writing Expert’s Corner articles for The VAW Monitor newsletter. Special breakout sessions were devoted to brainstorming on the envisioned future of StopVAW’s country pages. Several ideas were proposed, including producing local language versions of the country pages, creating new subsections to address certain issues, and possibly expanding StopVAW to encompass more nations. Overall, it was an opportunity for Monitors to meet each other in person and forge new advocate connections and friendships. The meeting host, Open Society Georgia Foundation, went above and beyond to make participants feel welcome and ensure the two days were a success. From coordinating the multi-media conference to arranging for simultaneous English-Russian translation to a walking tour of Tbilisi’s beautiful streets, OSGF was the perfect host. Special thanks to Marina Tabukashvili, Davit Gabunia, Nina Khandinashvili and Marika Changelia for their warmth and hospitality.
The Advocates for Human Rights and the Human Rights Department of the OSCE Mission to Bosnia and Herzegovina Offer Joint Comments to the Proposed Amendments to the FBiH Law on Protection From Domestic Violence
LAW ON PROTECTION FROM DOMESTIC VIOLENCE The Advocates for Human Rights: The BiH Law on the Protection of Domestic Violence (hereinafter “the law”) is a positive step toward improving the government’s response to domestic violence. The law should clarify that the new remedy provided is a civil order for protection. The importance of the civil order for protection remedy is that the victim should have efficient and easy access to this remedy without needing to involve the police, lawyers or other criminal justice authorities in any way. There is an important distinction between civil order for protection and a ‘no contact order’ under the criminal law and procedure codes. The criminal no contact order is addressed separately in the criminal law and is commonly issued in criminal cases of domestic violence to protect the safety of the victim during the pendency of criminal proceedings. The court has similar authority with the criminal no contact order to require that the offender stay out of the joint dwelling and away from the victim. I – GENERAL PROVISIONS General dilemma: To keep the term “protection measures” or to introduce the new term “temporary measures.” Comment by OSCE: We acknowledge that the term “protection measure” may create confusion for judges reviewing requests for protection measures, given that such term is also used as a type of sanction in misdemeanor proceedings. The suggested alternative, “temporary measure” (privremeni mjere), does not do justice though either, as it indicates “temporary” while some other parallel proceedings are finalized. It may be considered whether to use a similar term as for victims of trafficking: protection measures or “mjera zaštite”, in accordance with the terminology found in the Rulebook on Protection of Victims of Trafficking. The addition of a chapter outlining the specific procedure in cases of issuance of protection measures may serve to sufficiently distinguish protection measures as a sanction in misdemeanor proceedings and protection measures as a form of protection for domestic violence victims. In terms of the procedure, it might be advisable to consider that the judge issues an “order” (naredba) instead of decision, such that judges issue orders on protection measures (naredba za izdavanje zastitnih mjere). Article 1 Scope of the Law This Law regulates: protection from domestic violence, the notion of family and domestic violence, types and purpose of protection measures for persons who have committed an act of domestic violence, the manner and procedure by which to issue protection measures, protection of victims of domestic violence and mutual inter-connections of all subjects implementing this Law. Comment by OSCE: The scope of the law focuses on persons who commit acts of domestic violence, instead of the focus being on protection measures serving victims. Possible language to place the victim at the center of the Law on Protection could read: This law regulates: the notion of family and domestic violence, the types and purpose of available protection measures for victims, the procedure to issue protection measures, state obligations towards victims of violence and the mutual interconnections of all subjects implementing this Law. Article 2 General Principles for providing protection International standards accepted by Bosnia and Herzegovina shall be applied in cases in which more efficient protection from domestic violence is to be provided than the rules regulated by this Law and other provisions regulating the area of domestic violence. Comment by OSCE: This principle could be slightly clearer by changing the sentence order in national language, as follows: Medunarodni standardi koje je prihvatila Bosna i Hercegovina primjenjivat ce se u slucajevima u kojima se osigurava djelotvornija zaštita za žrtve nasilja u porodici odnosno na pravila uredena ovim zakonom i drugi propisi koji ureduju oblast nasilja u porodici As an overarching principle of protection, this article should acknowledge that victims know best what type of protection is most appropriate for their specific situation. Article 3 Urgency of Ruling It shall be the responsibility of the police, the Center for Social Welfare and the Municipal Court - Misdemeanor Department (hereinafter: competent court) to offer protection from domestic violence in terms of this Law. Urgent rulings shall be provided for in cases of domestic violence. Article 4 Access to a competent Court This Law shall ensure free access to a competent court, without any costs for victim of domestic violence, with respect that full and synchronized correlation of protection system provided by competent organs as under Article 3 paragraph 1 of this Law is ensured. COMMENT by OSCE: It would be helpful to specify who will cover the costs of court proceedings. Many countries have adopted the policy that the violent person pays court fees if measures are imposed. It would also be appropriate for this article to address access to legal aid for victims. II – THE NOTION OF FAMILY AND DOMESTIC VIOLENCE Article 5 Definition of Family and family relationships In terms of this Law, family shall be: 1) married and common-law spouses and their children (their common children or from their previous relationships), 2) live-in relatives; blood relatives and relatives joined by full adoption in direct kinship (linea recta) regardless of the degree of kinship and in the linea colateralis up to the fourth degree of kinship; adoptive parent and adopted child in the case of partial adoption; in-laws up to the second degree of kinship; 3) guardian and protégé; foster parent and foster child; 4) formerly married and unmarried spouses and their children (their common children or from their previous relatioships). Relationships between family members shall be based on humane principles which include mutual respect, support, and devotion, maintaining harmonious relationships while developing and demonstrating their best traits with particular emphasis on child protection, gender equality and voluntary entry into marriage or common-law marriage. In their relationships, family members shall respect the rights, freedoms and safety of other family members in a manner that shall not be restrictive, set limits or prevent the exercise of the rights and freedoms guaranteed to family members in accordance with the existing laws. Family members shall refrain from harming the physical or psychological integrity of another family member; injury and discrimination on the basis of one’s gender or age; and subordination on any basis. The Advocates for Human Rights: Many situations of domestic abuse involve” intimate partners, persons involved in a significant romantic or sexual relationship, or persons who reside together or who have resided together,” who are not necessarily married. This language would better protect more victims of domestic violence. Article 6 Definition of Domestic Violence Domestic violence shall be any act of inflicting physical, psychological, sexual or economic harm or suffering, as well as threats as regards the aforementioned, and lack of due care and attention which may seriously impede family members from enjoying their rights and freedoms in all areas of public and private life which are based on equality. Acts of domestic violence, in terms of paragraph 1 above, shall include: 1) The use of physical force or psychological coercion to the physical or psychological integrity of a family member; 2) The behavior of a family member which may result in the physical, psychological, or financial damage; 3) Intimidation, threats or the violation of the dignity of a family member by blackmail or another form of coercion; 4) Physical attack of a family member by another family member, irrespective of the fact of whether there was physical injury or not; 5) Verbal attack, insult, profanity, name calling and other violent harassment of one family member by another; 6) Sexual harassment and harassment of a family member as defined in the Gender Equality Act of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina no. 16/03); 7) Stocking and other related forms of harassment of a family member; 8) Damaging and destroying joint property and possessions or attempts thereof; 9) Lack of due care for a family member or failure to assist and protect a family member when bound to do so by law and morality and when such inaction may result in the physical, psychological or socioeconomic endangerment of that family member. 10) Deprivation of economic independence by prohibiting employment or keeping the family member in dependant position or inferiority, by threats or by not providing economic support as well as by other forms of economic domination of one family member by another family member; 11) Raising the children by physical punishment and other forms of humiliating treatment. The Advocates for Human Rights: The definition of violence should focus on physical harm or the fear of physical harm. The current definition is open to abuse and to retributive counterclaims by violent perpetrators. For example, a perpetrator may claim that physical violence is an appropriate response to an act of “psychological or financial damage”. Also, Article 6(9) is unduly vague and open to abuse and manipulation by violent offenders. For example, an angry or disgruntled violent abuser may seek protection measures against his wife for “lack of due care for a family member”. The priority of courts in issuing protection measures should be to protect the safety of victims and their children. Point 11 should be deleted. “Other forms of humiliating treatment” inflicted upon children under Article 6(1) is vague and could place battered mothers at risk of losing their children. Article 7 Reporting Domestic Violence Healthcare providers and social workers, teachers, educators, medical institutions, educational institutions, other institutions and bodies, as well as nongovernmental organizations that, during the course of carrying out their duties, learn of occurrences of domestic violence shall have the responsibility to immediately report such cases to the police. Family member or any individual who learns of occurrences of domestic violence shall have the same responsibility to report it as set forth in paragraph 1 of this Article, particularly if a minor is a victim of domestic violence. Person who fails to report domestic violence shall commit a misdemeanor offence. Comment by OSCE: It is advisable to exercise caution when creating a legal obligation for health care workers to report incidences of violence, particularly when other parts of these draft amendments would set in motion a whole series of possibly unwanted events for victims (such as legal obligation for police to request protection measures). The unintended and unwanted risk of such provision is that victims may not seek necessary medical attention. Other Laws creating misdemeanor offences for health care workers who fail to report domestic violence should also be reviewed and harmonized. The Advocates for Human Rights: Language requiring third parties to report acts of domestic violence should be deleted from the law. The victim should remain in control of reporting domestic violence for the purposes of pursuing a civil order for protection. III – PROTECTION MEASURES Article 8 Purpose of protection measures The purpose of protection measures shall be to prevent domestic violence, provide protection of health and safety for persons subject to domestic violence, and to remove circumstances that are favorable or incite to acts of domestic violence. The Advocates for Human Rights: Implementation of the law would be improved by deleting the phrase “and to remove circumstances that are favorable or incite to acts of domestic violence”. Courts may be distracted in efforts to determine such circumstances. Rather, courts should focus on victim safety and offender accountability. Also, this language is open to misinterpretation and abuse and may provide a basis for holding victims accountable for violent crimes against them. This article should also include as one of the purposes “promoting offender accountability.” Article 9 Types of Protection Measures The following protection measures may be pronounced against the perpetrators of domestic violence: 1) removal from the apartment, house or other dwelling and being barred from returning to that apartment, house or other dwelling; 2) restraining order; 3) prohibition of harassment and stalking of the victim; 4) mandatory psycho-social treatment; 5) mandatory drug or alcohol rehabilitation. Comment by OSCE: The language of the first sentence emphasizes measures “against the perpetrator”, instead of emphasizing the protection of the victim, or at least being neutral towards the perpetrator. As the concept of victim protection is mentioned in Article 8, it is suggested that the first sentence of Article 9 could provide simply: “The competent court may order the following measures:” It is recommended to incorporate four other protection measures in the Law on Protection: 1) dangerous weapon removal; 2) order to refrain from committing or threatening to commit acts of violence against the victim or victim’s family; 3) temporary child custody measures; and 4) financial payments to victims. These measures are found frequently as protection measures in other legal frameworks (see Albania and Kosovo legislative examples). Studies show that removal of any dangerous weapon can serve as an important protection measure. Many other countries have incorporated this protection order into their legal framework. A recent UNDP study by SEESAC (South Eastern and Eastern Europe Clearinghouse for the Control of Small Arms and Light Weapons) entitled Firearms Possession and Domestic Violence in the Western Balkans: A comparative study of legislation and implementation mechanisms also confirms the need for courts to be able to pro-actively remove weapons from homes where domestic violence is suspected. With respect to BiH, the study specifically recommended that a protection measure related to confiscation of firearms is introduced and implemented. Second, a protection measure to prevent the perpetrator from committing other acts of violence is a common form of protection in other countries’ domestic violence legislation and one that should be incorporated into the FBiH LoP. In the experience of Bulgaria, domestic violence activists have noted that this is the most employed form of protection measure issued by judges. Third, a protection measure should grant to the victim temporary custody of the victim’s children to the victim. A separate article should clarify that any protection measure does not affect any other proceedings, and does not affect any rights beyond the duration of the order (see Kosovo legislation for sample text.) Fourth, another extremely important aspect of the protection measure of removal from the family home is to provide for the possibility that the competent court order financial payments to the victim for rent or mortgage and maintenance of the victim and any children the violent person has a responsibility to support. Such form of protection measure, in some jurisdictions, can also be ordered independently of any other protection measure, such as Kosovo as per UNMIK Regulation no. 2003/12 on protection against domestic violence. It is recommended to incorporate this measure as an independent protection measure to provide the maximum degree of flexibility for judges. The Advocates for Human Rights: The Advocates for Human Rights agree with the Comment of the OSCE. The authority of the court to include specific protection measures should be expanded. The United States Model Law provides guidance through a list of protection measures to maximize victim safety and offender accountability, as follows: (a) Enjoin the respondent from threatening to commit or committing acts of domestic or family violence against the petitioner and any designated family or household member; (b) Prohibit the respondent from harassing, annoying, telephoning, contacting, or otherwise communicating with the petitioner, directly or indirectly; (c) Remove and exclude the respondent from the residence of the petitioner, regardless of ownership of the residence; (d) Order the respondent to stay away from the residence, school, or place of employment of the petitioner, or any specified place frequented by the petitioner and any designated family or household member; (e) Prohibit the respondent from using or possessing a firearm or other weapon specified by the court; (f) Order possession and use of an automobile and other essential personal effects, regardless of the ownership of the essential personal effects, and direct the appropriate law enforcement officer to accompany the petitioner to the residence of the parties to ensure that the petitioner is safely restored to possession of the residence, automobile, and other essential personal effects, or to supervise the petitioner's or respondent's removal of personal belongings; (g) Grant temporary custody of any minor children to the petitioner; and (h) Order such other relief as it deems necessary to provide for the safety and welfare of the petitioner and any designated family or household member. Article 10 (Article 11 in existent Law) Removal from the Apartment, House or Other Dwelling The protection measure of removal from the apartment, house or other dwelling may be ordered for a person who has abused a family member with whom he/she resides in an apartment, house or other dwelling if the competent court finds that there is a risk that the person might repeat an act of violence if this measure is not employed. A person for whom the measure described in paragraph 1 of this Article has been prescribed shall immediately vacate the apartment, house or other dwelling, in the presence of a police officer, if necessary. The measure set forth in paragraph 1 of this Article shall be prescribed for a period of time of no less than one month and not longer than six months in duration. Regulation for the implementation of the measure in paragraph 1 of this Article shall be enacted by the Minister of Internal Affairs of the Federation within 60 days from the day of entry into force of this Law. Comment by OSCE: This article should be amended so as to include an emergency protection measure of removal from apartment, house or dwelling which may last up to 10 days. A protection measure of removal from apartment, house or dwelling may be ordered for one month to 6 months, but only after having heard the perpetrator. See comment below Article 17. In relation to paragraph 3, the term “at a time”, should be inserted after “six months in duration”. The Advocates for Human Rights: Article 10 should include intimate partners. The Advocates for Human Rights agree that the law should provide for emergency protection measures (see our Comments below at Art. 17). Notice to the perpetrator should be required. In these cases, a hearing should be required on such an order within 14 days only if the court declines to order the requested relief or if one of the parties requests a hearing. More effective language regarding the duration of the protection measures is, “Any relief granted by the order for protection shall be for a fixed period not to exceed one year, except when the court determines a longer fixed period is appropriate.” Ideally, this article should retain the language from the original law, Art. 18, which authorizes such protection for up to two years. Article 11 (Article 11 in existent Law) Prohibition on approaching domestic violence victim A person who has committed an act of domestic violence may be forbidden from approaching the victim if there is a risk that he/she might repeat the abuse. In its ruling, the court shall define places and areas and the distance which an abusive person must not come near a victim of domestic violence. The measure set forth in paragraph 1 of this Article shall be prescribed for a period of time of no less than one month and not longer than one year in duration. The regulation of the implementation of the measure in paragraph 1 of this Article shall be enacted by the Minister of Internal Affairs of the Federation within 60 days from the day of entry into force of this Law. Comment by OSCE: This protection measure should also include the possibility for the court to order that the abusive person refrain from approaching the domestic violence victim’s family members, such as children or parents. This is particularly necessary if the violent person uses access to his children as an excuse to harass or threaten the victim. In the second paragraph, after “not longer than one year in duration”, it should be added, “at a time”. The Advocates for Human Rights: The Advocates for Human Rights agree with the Comments. Ideally, however, this article should retain the language from the original law, Art. 18, which authorizes such protection for up to two years. Article 12 (Article 14 in existent Law) Prohibition of Harassment and Stalking The prohibition of harassment and stalking as a protection measure shall be ordered against a person who harasses or stalks another person, if there is risk that he/she might again harass or stalk a victim of domestic violence. The measure set forth in paragraph 1 of this Article shall be prescribed for a period of time of no less than one month and not longer than one year in duration. The regulation for the implementation of the measure in paragraph 1 of this Article shall be enacted by the Minister of Internal Affairs of the Federation within 60 days from the day of entry into force of this Law. Comment by OSCE: The wording of this article creates some confusion as to what behavior should have preceded such a measure, as it sounds that the victim must have been endured some other forms of domestic violence, in order for the measure to be ordered. It should be made clear that harassment and stalking may have been the only underlying alleged form of violence. The first paragraph could provide, “The prohibition of harassment and stalking shall be ordered against a person who has harassed or stalked a family member, if there is a risk that he/she might continue this behavior”. In the second paragraph, after “not longer than one year in duration”, it should be added, “at a time”. The Advocates for Human Rights: The Advocates for Human Rights agree with the Comments. Ideally, however, this article should retain the language from the original law, Art. 18, which authorizes such protection for up to two years, or it should allow for a longer term of protection if the court determines a longer fixed period is appropriate. Article 13 (Article 15 in existent Law) Mandatory Psychosocial Treatment Mandatory psychosocial treatment may be imposed on a perpetrator of domestic violence in order to remove his/her abusive behavior or if there is risk that he/she might repeat the abuse. The measure set forth in paragraph 1 of this Article shall be prescribed for the duration of time until there no longer exists a reason for which it was ordered in the first place, but not to exceed two years. Regulation on the manner and venue for the implementation of the measure in paragraph 1 of this Article shall be enacted by the Minister of Labor and Social Policy of the Federation, with the consent of the Ministry of Health of the Federation of Bosnia and Herzegovina, within 60 days from the day of entry into force of this Law. Comment by OSCE: In the first paragraph it should be clarified if there are two standards for imposing psychosocial treatment: “to remove his/her abusive behavior or, if there is a risk that he/she might repeat the abuse.” The other protection measures require that there is a risk that the behavior might be repeated, while this one appears to suggest a lower standard—the mere existence of past abusive behavior might precipitate the order, without the threat or re-occurrence. This is also acceptable; it might be helpful to make this explicit, if it is intended. The Advocates for Human Rights: The Advocates for Human Rights agree with the Comments. Ideally, however, this article should retain the language from the original law, Art. 18, which authorizes such protection for up to two years, or it should allow for a longer term of protection if the court determines a longer fixed period is appropriate.. Article 14 (Article 16 in existent Law) Mandatory Rehabilitation The competent court shall impose mandatory rehabilitation of an abusive person who has committed an act of domestic violence under the influence of alcohol or drugs or other psychotropic substances, if there is risk that violence may occur again. The measures set forth in paragraph 1 of this Article shall be prescribed for a period of time of no less than one month and not longer than two years in duration. The regulation of the implementation of the measure in paragraph 1 of this Article shall be enacted by the Ministry of Health of the Federation within 60 days from the day of entry into force of this Law. Comment by OSCE: In the second paragraph, “at a time” should be added after “not longer than two years in duration.” IV. PROCEDURE FOR PRONOUNCEMENT OF THE PROTECTION MEASURES Article 15 Procedure for issuance of protection measures The procedure for issuance of protection measures is provided pursuant to Articles 2, 3 and 8 of this Law. The protection measures provided by this Law shall be pronounced by the competent court, pursuant to jurisdictional authority over the victim’s temporary residence at the time of filing a request for protection measures. Article 16 The procedure for issuance of protection measures shall be initiated by a request filed by a competent police administration or prosecutor’s office within 12 hours from the apprehension of the perpetrator. COMMENT BY OSCE: This paragraph limits submission of requests for protection measures to police and prosecutors. Such limitation is not in keeping with the best interests of the victim, nor international standards which require that protection measures be easily accessible for victims. The Law must provide for the possibility that domestic violence victims may wish to seek protection measures, but may not wish to alert or involve the police and prosecutorial authorities in the situations. Such decisions, if the victim is an adult, must be respected. Experts on domestic violence insist on the point that the victim knows best what measure is most appropriate in light of her own risk assessment. We would recommend, rather, that a specific article clarify WHO may apply for such measures, as follows: The request for protection measures may be submitted by: 1. the victim 2. the victim’s legal representative or attorney 3. the police, if victim does not oppose 4. the prosecutor, if victim does not oppose The request for protection measures on behalf of minors may be submitted by: 1. the minor’s parent or guardian 2. the minor’s legal representative or attorney 3. relatives of the minor 4. the Center for Social Welfare representatives 5. the police 6. the prosecutor The request for protection measures submitted by the police and prosecutor should only be submitted by them if they have discussed the request with the victim and determined that she does not oppose the application. To do otherwise may result in greater threats to the victim‘s safety and well-being. In domestic violence situations, it is simply not the case that “the police or prosecutor” know best. The standardised request form should have separate sections for requests issued by police and prosecutor, wherein they would have to indicate in writing that the victim does not oppose the request. The consent of the victim need not be obtained for cases where the victim is a minor. The request shall be filed with the competent court. The competent police administration shall be responsible to bring the perpetrator before the court if the competent court so requests. The competent court, when pronouncing the protection measure, shall consider the purpose and severity of the pronounced measure, its efficiency, and if necessary, it may replace the pronounced protection measure with an alternative protection measure. Comment by OSCE: It is advisable to include here the that the judge must consider the “proportionality of the measure”, as this is another essential element when weighing whether a restriction on the violent person’s rights unduly or unnecessarily impinges on their other rights, such as the right to one’s dwelling in accordance with Article 8 ECHR. If the measure serves a purpose (protection of the victim) and if it is proportional, such types of protection measures should not violate the violent person’s fundamental rights. The standardised request form for issuance of the protection measures shall be provided by the FBiH Ministry of Justice within 30 days from the day when this Law enters into force. Alternatively paragraph 5 of Article 16: Attached to this Law is the standardised request form for issuance of protection measures. Comment: The standardised request form should also make clear that victims may apply for protection measures without having addressed the police, e.g. without having a police report. In such cases, a more thorough fact statement submitted by the victim will be necessary. The Advocates for Human Rights: The Advocates for Human Rights agree with most of the comments. However, the Law would best protect victim safety and offender accountability if it specifies that petitions or applications for protective measures may be initiated only by the victim, not third parties. Applications on behalf of minor victims may be made by adult family or household members. (As a separate issue, in criminal cases, courts should be granted authority to issue no contact orders during the pendency of the criminal proceeding.) The law should clarify that a statement by the petitioner, under oath, regarding the domestic abuse shall be sufficient to issue the order. The statement should describe the specific facts and circumstances from which relief is sought. No further independent evidence, police reports, medical reports, or otherwise, should be necessary. Article 17 The competent court shall be responsible to act upon a request for issuance of the protection measure and issue decision within 12 hours from receipt. Comment by OSCE: It is necessary to weigh urgency of proceedings with the quality of the proceedings, appropriate participation of all necessary parties, such as the perpetrator and Center for Social Welfare and other experts, as required, and overall fairness of proceedings for both the violent person and the victim. It must be noted that most countries’ domestic violence legislation encompasses both a type of “emergency” measure to get victims out of immediate danger and which are in force for a short period until longer “protection orders” can be ordered by a competent court. In our view, the draft amendments have taken a positive step forward by incorporating Article 20 specifying that the police and Centers for Social Welfare may accommodate victims without delay in safe houses and other accommodation, and without requiring a court order. This measure will be useful in the most serious cases where there is a risk of serious harm. Of the court-ordered protection measures, the other one that might be most useful on an emergency or urgent basis would be removal of the perpetrator from the home (Article 10 of amendments). Bearing in mind that such measure should generally be imposed after having heard the perpetrator, the victim and other experts, it questionable whether a 12-hour deadline is realistic. We would propose the following: · a 24-hour deadline for issuance of a emergency protection measure under Article 10 of draft Law (removal of person from the home); such measure may be in force for 10 days; · a five day maximum deadline for issuance of long term order of removal from the home (1 month to six months) and for all other protection measures. Language should highlight that five days is the outer limit, and municipal court judges should be urged to issue rulings as quickly as feasible. Alternatively, the FBiH Gender Center may wish to review other relevant legislation to find a model most suited to the reality of BiH. For example, Georgian legislation provides for a protection order, issued by a court judge, which defines temporary protection measures of victims in cases of domestic violence, and a restrictive order, issued by the police, which define temporary protection measures of victims in cases of domestic violence and which must be submitted to the court for approval within 24 hours. The present Law on Protection, as well as these proposed amendments, fail to specify the judicial duties vis a vis the request. It would be advisable to make explicit that the judge shall call a hearing where the abusive person shall be heard and that the abusive person may be represented by counsel in the proceedings. The hearing may be held even in the absence of the abusive person where the individual was properly summoned and failed to justify his or her absence. The judge may call the victim if the victim’s statement in the request for protection measures is insufficient. The judge should obligatorily call the victim in cases when the police or prosecutor submits the request on her behalf. The judge may call other experts to testify as well. If the emergency protective measure is adopted, another article should be added to the LoP defining the proceedings when such a measure is requested, for example, immediately following the present Article 17. Another paragraph of this article, or in a separate article, should enumerate the type of evidence that the judge may consider, see Albanian legislation for sample text. This article should include clarification of the degree of certainty or level of evidence necessary for the judge to issue a measure, generally, a review of comparable legislation provides that protection measure may be issued when there are “grounds to believe that respondent has committed or threatened to commit an act of domestic violence”. Finally, this article should also include that whether or not there is a criminal proceeding against the respondent shall not prejudice the issuance of any protection measure. An appeal against the decision from Paragraph 1 may be filed within 3 days from the day of reception of the decision, which does not suspend its implementation. Comment by OSCE: The paragraph should be moved to Article 19 and Article 19 should be entitled “Appeals”. The decision on issuance of the protection measures shall decide upon duration of the protection measure pronounced against the violent person, which implementation begins on the day of the issuance of the decision. Comment by OSCE: This above paragraph should be incorporated into the enumerated list below as one of the essential elements—length of duration of the measure (e.g. following item 8 below). Decisions on issuance of protection measures should also specify that a violation of the protection order constitutes a misdemeanour. The enumerated list should be moved to a separate article entitled “Content of Decision”. The essential elements of the decision from Paragraph 1 of this Article are: 2) the title and composition of the court; 3) the number and date of the decision on pronouncement of the protection measures; 4) the grounds for pronouncement of the decision (Article 17); 5) the description of acts of violence committed by the violent person, Article 6 Paragraph 2 Item _____ of this Law) 6) the brief evaluation of the facts; 7) the grounds for pronouncement of the protection measure or grounds for rejection of the motion for pronouncement of the protection measure; 8) the pronounced protection measure/s; 9) the manner or location of implementation of the pronounced protection measure; 10) the decision on the costs of the proceedings; 11) the legal remedy; 12) the signature of the judge. The Advocates for Human Rights: The Law should allow for both 1) an emergency or ex parte order for protective measures and 2) an order for protective measures based on a hearing. The ex parte or emergency order should be issued immediately upon application based on a finding that there is an immediate and present danger of domestic abuse. This process should take less than 24 hours. The law should direct the court to notify the respondent and, upon request by either party, order a hearing. Upon receipt of an application for an order for protection that does not allege an immediate and present danger, the court should schedule a hearing in no later than 14 days. Again, the law should clarify that a statement by the petitioner, under oath, regarding the domestic abuse shall be sufficient to issue the order. The petitioner’s statement should describe the specific facts and circumstances from which relief is sought. No further independent evidence, police reports, medical reports, or otherwise, should be necessary. This issue has proven to be problematic in other countries where courts refuse to issue protection measures based only on the petitioner’s statement. Such court practices present a serious risk to victims. Article 18 Delivery of the decision The court shall be obliged to deliver without delay the decision on issuance of the protection measure to the abusive person, the person who filed a motion and the body responsible for execution of the pronounced protection measure. The court shall be obliged to deliver the decision on issuance of protection measures to the SWC for record keeping within three days from the issuance of the decision. Comment by OSCE: It should be made explicit that the decision is always delivered to the victim, and his or her legal representative, unless the victim is a minor, in which case it should be delivered to their legal representative in the proceedings. Article 19 The content of the appeal The appeal from Paragraph 2 of Article 17 of this Law shall contain the number and the date of the decision on pronouncement of the protection measure challenged by the appeal and signature of the appellant. The appeal shall contain the grounds for the appeal. Comment by OSCE: It should be made clear who has right to appeal the decision issuing or denying the request for protection measures, including making explicit that the victim always maintains the right to appeal. The appeal shall be filed in two copies with the court which issued the decision on pronouncement of the protection measure. Comment by OSCE: An additional article is needed to clarify proceedings when an amendment, termination or continuation of the order is needed. The Albanian Law on Protection includes such provision that may be used a model, it provides: Article __ Circumstances for amendment, termination or continuation of protection orders 1. In case of fundamental change in circumstances, the victim (or their representative), the perpetrator or if the prosecutor has been participating s/he may present the request for termination or amendment of the protection order 2. Once this request for termination or amendment of the protection order is received the court examines it according to article 16 of the present law [author’s note: Article 16 provides for a hearing]. At the end of the examination the court may: a) Decide the protection order should stay in force; b) Decide the protection order should be amended, if circumstances have fundamentally changed; or c) Decide the termination of the protection order if the criteria established under article 10 point 1 are no longer valid because of fundamental change in the circumstances 3. Presentation of the request for the amendment or termination of the protection order does not suspend the implementation of the protection order 4. Fifteen days prior to expiration of the protection order, the victim or the person authorized by them may present the request for the continuation of the protection order. When no such request is presented the protection order terminates automatically on the expiration date. 5. Once the court receives the request for the continuation of the protection order, it examines it according to article 16 of this law. At the end of the process the court may: a) Certify the termination of the protection order up to the expiration date; or b) Decide the continuation of the protection order if the criteria of article 17 point 1 of this law are met. V. PROTECTION OF THE VICTIM OF DOMESTIC VIOLENCE Comment by OSCE: This chapter title is repetitive of Chapter III Protection Measures. Instead, this Chapter could more appropriately be entitled “Other forms of protection for victims”, this way the title also acknowledges that Chapter IV is also about protecting domestic violence victims. Article 20 For the purpose of protection and implementation of the rights and interests of the victim of domestic violence, free of fear and life threat, the police and SWC shall be obliged to temporarily accommodate the victim of domestic violence in the safe house/shelter or another family or other suitable place with prior consent of the victim. The victim of domestic violence shall be temporarily accommodated in the safe house/shelter upon a request of the police or SWC up to 3 months. Exceptionally, the deadline from Paragraph 2 of this Article may be extended upon request of the safe house/shelter with written consent of the SWC. The Advocates for Human Rights: The law should specify that the victim should be accommodated in a shelter or safe house ONLY upon her request. Article 21 The safe house/shelter may be established by the Canton, citizen’s association or other legal or natural person in accordance with law. The funds for financing temporary accommodation of the victims of domestic violence in the safe houses/shelters shall be secured in accordance with the Federal and Cantonal legislation from: - the municipal budget - the Cantonal budget - the FBiH budget - the donations - the personal participation of the beneficiary The legislation on standards, criteria for establishment and financing of the safe house/shelter shall be issued by the Federal Minister of Labour and Social Policy in agreement with the Federal Minister of Finance, within 60 days from the day of entry into force of this Law. Alternatively Paragraph 3 of this Article: The legislation on standards, criteria for establishment and financing of the safe house/shelter shall be issued by the Federal Minister of Labour and Social Policy, with the preliminary opinion obtained from the competent cantonal ministries, in agreement with the Federal Minister of Finance, within 60 days from the day of entry into force of this Law. The Advocates for Human Rights: The law should specify that the government should develop standards on safe houses and shelters (para. 3) only in consultation with NGO’s and advocates who are working directly with domestic violence victims. Paragraph 1 should include a sentence stating that “Priority for funding of such safe houses and shelters shall be given to NGOs and domestic violence advocates.” Article 22 The Cantonal Government shall issue a two-year Cantonal program of prevention measures, protection and combating domestic violence. The program of prevention measures from Paragraph 1 of this Article shall contain the following mandatory elements: - the responsibilities of the Cantonal and municipal bodies in prevention, combating all forms of domestic violence and protection of the victims of domestic violence; - the necessary measures for the work with abusive persons, including advisory support to all members of the family; - the nonviolent behavior promotion activities; - the activities related to education of police officers, judges, SWC staff, health care workers, teachers and other relevant staff about domestic violence; - the responsibility of statistical data keeping about abusive persons and the victims of domestic violence; - the obligation of establishment of a coordination body that will coordinate the work of all bodies competent for implementation of this program of prevention measures. The program of prevention measures from Paragraph 1 of this Article shall be passed by the Cantonal Government by 31 December 2008. The Advocates for Human Rights: The law should specify that in keeping statistics or other data on domestic violence victims, confidentiality of the victim and victim safety are of paramount importance. Also, the program should include education and public awareness activities about the Law on Protection from Domestic Violence. Article 23 Financing of certain programs/projects whose aim is to create conditions for preventive action and improvement of conditions of protection of victims of domestic violence can be ensured from budget of Federation of BiH. VI. MULTIDISCIPLINARY APPROUCH IN PROCEDURE FOR PROTECTION OF VICTIM OF DOMESTIC VIOLENCE AND IMPLEMENTATION OF PRONOUNCED PROTECTION MEASURES The Advocates for Human Rights: This section should include mention of the Coordinated Community Response (CCR). Under the CCR model, when different members of the community coordinate their efforts to protect battered women and hold batterers accountable, these efforts are more successful. Coordination helps to ensure that the system works faster and better for victims, that victims are protected and receive the services they need, and that batterers are held accountable and cease their abusive behavior. A critical first step toward coordinating responses is developing a common understanding of domestic violence. Law enforcement agencies, advocates, health care providers, child protection services, local businesses, the media, employers and clergy can—and ideally should—be involved in a coordinated community response. Article 24 The competent institutions as under Article 7 paragraph 1 of this Law, for the area of one or more municipalities, are obliged to sign a protocol on cooperation that shall determine mutual rights and obligations in procedure of reporting cases of domestic violence and providing assistance to victims of domestic violence. Article 25 Obligations of the Police The Police are obliged that for each reported case of domestic violence to go on the spot immediately after receiving report. Comment by OSCE: It would be useful to add a legal obligation for the police to inform victims about the existence of protection measures and other community resources available when they go to the scene of the crime. The Gender Centers could develop a short written pamphlet that police officers should distribute at the scene to comply with this legal obligation. The written pamphlet should contain a short explanation of the protection measures, the application for protection measures, and hotline numbers. The Police is obliged to apprehend the person for which there is grounded suspicion that he/she did actions of violence in family, and keep it in detention for 24 hours, and in that period if the competent court demands, to bring the violent person before the court. Comment by OSCE: This obligatory 24-arrest fails to comply with the restrictive nature of any deprivation of liberty according to Article 5 ECHR, and is simply not proportional. There is no adequate justification for such a measure. If such an urgent measure is needed, the proposed emergency protection measure of 10-day removal from the home may serve a similar purpose, as well as the option for police to immediately remove the victim from the home and accommodate her in other appropriate location. The Police is obliged, within the deadline of 12 hours from the moment of apprehension, that for each reported case of domestic violence submit request for issuing protection measures, with evidence attached, as well as extract from official record whether that person had previously been reported for domestic violence acts. Comment by OSCE: With regard to the requirement that police submit requests for protection measures in every case, this was already addressed in relation to comments on Article 16, paragraph 1. It should be made explicit that the police should not move forward with requesting such measures if the victim disagrees. The Police is obliged to keep record, in the line with BiH Gender equality law, on reported cases of domestic violence, submitted requests for ordering protection measures and submitted reports to prosecutor’s offices on execution of criminal act of domestic violence, The Police is obliged to deliver to the Center for Social Welfare the official police records in domestic violence cases for the sake of keeping the record and for the sake of prevention. Comment by OSCE: In addition to the above, it may be useful to examine police duties upon attending to a location where domestic violence was reported as provided for in Georgian legislation. This legislation makes explicit that police should assist victim in obtaining appropriate medical care or removing the victim from the home and accommodating her in safe houses or other accommodation. It provides: Where case of violence is present, the police shall: - take all legal measures to eliminate the fact of domestic violence;
- separately interview the possible victim, witnesses, abuser, including children, which shall be recorded;
- inform the victim of the domestic violence of his/her rights
- Upon request of the victim or in case of necessity, to ensure transfer of the victim to the institution of medical care;
- Upon request of the victim or in case of necessity, to ensure the transfer of the victim or his/her children to the shelter;
- In case of transfer to another location, to ensure that a victim takes his/her personal belongings from the place of residence;
- To ensure safety of the person reporting the case of violence;
- To issue a restrictive order as prescribed by the law.
Such specificity for police action at the scene of a domestic violence incident would also be helpful in the Law on Protection. The Advocates for Human Rights: Police authority in domestic violence cases is best addressed primarily in the criminal code. Clear standards for the arrest of perpetrators should be articulated in the criminal law and policy. BiH should consider a probable cause arrest standard in domestic violence cases which allows police to arrest an offender if they determine that there is probable cause that a crime has occurred. This should include low level misdemeanor assaults. The criminal law should clearly state that the violation of a protection order is crime and that repeated violations of protective measures will result in enhanced criminal penalties. Article 26 (Article 19 in existent Law) Responsibilities of Center for Social Welfare The Centers for Social Welfare shall, in accordance with the Gender Equality Act of Bosnia and Herzegovina, keep records of ordered protection measures, monitor their enforcement, inform the competent court of the enforcement, and put forth proposals to stop the measure or replace it with another protection measure. The Centers for Social Welfare shall submit to the court a report on the purpose of the protection measure no later than six months or sooner at the request of the court. Comment by OSCE: This article would need to be modified if an article on “Circumstances for amendment, termination or continuation of protection orders” is introduced, as proposed. The Advocates for Human Rights: The justice system, including the courts, rather than the Centers for Social Welfare, should be responsible for monitoring the enforcement of protective measures.
Article 27 (Article 20 in existent Law) Misdemeanor Offence An official person who fails to report to the police an act of domestic violence from Article 6 paragraph 2 of this Law shall be sentenced to a pecuniary fine in the amount of 500,00 KM to 1,500.00 KM. The Advocates: Language requiring third parties to report acts of domestic violence should be deleted from the law. The victim should remain in control of reporting domestic violence for the purposes of pursuing a civil order for protection. VI – LIABILITY FOR INACTION IN REGARDS TO PROTECTION MEASURES Article 28 (Article 21 in existent Law) Inaction in Regards to Protection Measures A perpetrator shall be responsible to act in accordance with the prescribed protection measure. If the person against whom a protection measure was pronounced violates the Court decision, the competent court, upon request of the authority in charge for execution of protection measure, can fine the person in amount of 500,00 KM to 1,500.00 KM and the protection measure remains in effect. Comment: The FBiH Gender Center may wish to consider amending the law such that non-compliance with a judicial decision ordering protection measures should be considered a criminal offence and enumerated in the FBiH Criminal Code. The Report of the Special Rapporteur on Violence Against Women, “Framework for model legislation”, suggests that non-compliance with protection orders should be penalized with a “fine, contempt of court proceedings and imprisonment.” Within misdemeanor proceedings, the most severe penalty is suspended sentence. The above provision creates a maximum punishment of 1,500 KM, arguably, such a mild punishment may not create an effective deterrence, and is not in keeping with international standards which indicate that non-compliance may be punished with imprisonment. Further, several existing FBiH Criminal Code provisions lend support to including the non-compliance with a protection order as a criminal offence. First, the FBiH CC criminalizes failure to enforce or comply with a court judgment applicable to responsible persons in the FBiH government, and to any person who is obliged to, and fails to implement a Human Rights Chamber/Commission or Constitutional Court provision (Article 351). In both cases, a fine or up to three years imprisonment is possible. Failure to comply with a court-ordered protection measure could be likened to this conduct. Finally, non-compliance with certain protection measures, such as failure to comply with the protection order of removal from the family home, also constitutes the criminal offence of “infringing the inviolability of a dwelling”, Article 184 FBiH CC. If the protection measure is violated after that or the fine is not paid, the competent court will force the person to respect the decision or to pay the fine, by ordering deprivation of his/her liberty for not more than 15 days. The deprivation of liberty as under paragraph 2 of this Article shall not influence the payment of the fine nor the person’s or lack of respect for the decision he or she is obliged to respect. Comment: This paragraph is somewhat unclear with respect to how the person deprived of liberty can respect the judicial decision if it would require attendance at treatment, the phrase starting with “nor the person’s or lack of respect for the decision he or she is obliged to respect” should be clarified. Against the decision as under paragraph 2 of this Article, the perpetrator that was ordered detention can file an appeal within 3 days deadline to the second instance court, but the appeal shall not postpone execution. The first instance court has obligation to forward appeal to second instance body without delay, and the second instance court is obliged to render decision in urgent procedure. While deciding on decision on deprivation of liberty the perpetrator, that is to be subject of that decision, can propose to the court to do the works for common good, or community service, as replacement for the fine, and he/she still have to respect the rulings on protection measure. Comment: In order for the community service provision to be available and enforceable, a by-law would need to be adopted specifically for this purpose, establishing which institutions the community service can be served. The Ministry of Justice should be required to pass this by-law within 60 days of the law entering into force, as is the case with the other by-laws. The failure to respect decision of the court can represent the basis for ordering detention in criminal proceedings. Comment: This final paragraph should be removed as pre-trial detention may not be used for punitive reasons. As such, this provision squarely violates the essence of Article 5 ECHR which provides for a limited applicability of pre-trial custody in order to secure the person’s presence at trial and allow the unhindered conduct of proceedings. In limited cases pre-trial custody may be used to prevent the commission of other offences, but the limitations in Article 146.1.c FBiH CPC would apply for such cases. The Advocates: The Advocates agree that non-compliance with a civil order for protection should be a criminal offense. Repeated violations of orders for protection should result in enhanced criminal penalties. In the case of domestic violence cases in the criminal court, The Advocates agree that limited pre-trial detention is appropriate in domestic violence cases to reduce the risk to victims. VII – FINAL PROVISION Article 29 (Article 22 in existent Law) Entry into Force This Law shall enter into force the day after it is published in the Official Gazette of the Federation of Bosnia and Herzegovina and it shall be applicable six months after its entry into force. THE CHAIRPERSON HOUSE OF PEOPLE PARLIAMENT OF FEDERATION OF Slavko Matic
The Advocates for Human Rights Comments on Albanian Domestic Violence Law
No. 9669 of 18.12.2006 On Measures against Violence in Family Relations Introduction The Albanian Law on Measures against Violence in Family Relations (the Law) (translation provided by Emira Shkurti; translated version of the law includes tracked changes) is an important step in Albania’s effort to address domestic violence. The Law includes promising features that will facilitate its implementation. Those features include specific details about what should be included in protection measures ordered by the district court and criminalization of the violation of a protection order. The Advocates for Human Rights commends the drafters of the Law and encourages the Albanian government and civil society to carefully monitor the implementation of the Law to ensure that it promotes victim safety and offender accountability for domestic violence. For the Albanian country page, click here. Comments on Specific Articles Article 1.2: Scope The law should clearly state that its primary purpose is the promotion of victim safety and offender accountability. Addressing violence against women in intimate partner relationships should be a priority reflected in the law. Child protection should be addressed in a separate statute. In cases of violence against children, other issues should be considered including possible removal from a violent parent, visitation issues, re-unification issues and the involvement of social service agencies. These issues are best addressed in separate legislation focused on the protection of children. Article 3: Definitions The definition of violence should focus on physical harm or the fear of physical harm. The definition provided in the Law is too vague as it includes any act or omission of one person against another, resulting in violation of the physical, moral, psychological, sexual, social and economic integrity. This definition is open to abuse and to retributive counterclaims by violent perpetrators. For example, a perpetrator may claim that physical violence is an appropriate response to an act of “psychological violation.” Article 6: Lead Responsible Authority Objectives This article reflects the intent that government agencies work in partnership and collaboration with non-profit agencies in providing services to domestic violence victims and providing funding for those services. This is an effective and efficient approach. Providing services for victims is best achieved by non-profit agencies with experience and expertise on domestic violence. These services should be supported by funding from the government. Services to victims should be the primary priority of the law, not services for perpetrators. Article 6(e) requires the Ministry to maintain statistical data on the level of domestic violence. Law enforcement and judicial agencies should also be explicitly required to document the facts of a domestic violence incident, measures taken, and other statistical data such as gender and relationship of the parties. Statistics should also be maintained on the number of calls regarding domestic violence which police receive, arrests and non-arrests, prosecutions, convictions, and compliance with court orders. Article 7: Duties of Other Responsible Authorities Article 7(1) The Law should explicitly require that police departments develop written policies that dictate police response to domestic violence cases. Police departments should be required to collect data on the nature and extent of domestic violence cases. Article 7(3) The Law should require domestic violence training for judges. The Ministry of Justice should be required to collect data on the nature and extent of domestic violence cases. Article 8: Duties of All Responsible Authorities Article 8(4) should clarify that police authorities should treat the violation of a protection order as a crime, as is articulated in Article 17, and impose criminal sanctions as authorized by law. Article 9: Subjects Who May Report to Responsible Authorities Article 9(2) To the extent the Law authorizes government officials or others to take measures on the victim’s behalf without the victim’s consent, the Law presents a risk to victims. Victims of domestic violence are most often the best judges of the dangers presented to them by violent partners. Therefore, it is not advisable to exclude them from any decision regarding protection orders, separation from violent offenders or other measures. Article 10: Protection Measures against DV Article 10 includes important details about protection measures and specific directives for district courts. This level of detail facilitates effective and efficient implementation of the Law. The exception to provisions forbidding the perpetrator from approaching places frequented by the victim for “work-related reasons” in Article 10(1)(e) may present a risk to victims. The requirement in Article 10(1)(f) to immediately place the victim and minors in shelters will likely discourage victims’ use of the Law. Article 13: Subjects Entitled to Request Protection Orders Authorizing third parties to petition for a protection order on behalf of victims may compromise the interests and safety of domestic violence victims. Victims themselves are most often the best judges of the dangers presented to them by violent partners. Therefore it is not advisable to exclude them for the decision to apply for a protection order. Article 14: The Form of the Petition The requirement in Article 14(4) that a petitioner must pay court expenses if the petition is not sustained will likely discourage victims of domestic violence from using the law. There should be no cost to petitioners. Article 15: Evidence during the Hearing Article 15(3) clarifies that the court shall make a decision regarding a protection order based solely on the victim’s petition if other evidence is not presented to the court. This provision is important to preserve the safety of the victim because frequently in domestic violence cases, independent evidence of violence does not exist. Article 17: Court Decision for Protection Orders Article 17(3)(c) includes the very important provision regarding criminalization of the violation of a protection order. Article 17 states that the court shall clarify in its order that violation of a protection order is a criminal offense. Article 17(5) states that the court shall notify the social services department of its issuance of a protection order. This provision may deter domestic violence victims from using the law. Read in the context of Article 10, which allows for placement of minors in shelters, a domestic violence victim may fear separation from her children if she reports violence to government officials. Article 18: The Hearing for Emergency Protection Orders The Law should grant authority to the court to issue emergency protection orders immediately upon the petition of a victim of domestic violence. The Law should clarify that the court has authority to issue the order based solely on the victim’s petition, without a hearing and outside the presence of the perpetrator or his attorney. The provision in Article 18 that the court may issue an order within 48 hours of presentation of the petition may endanger the safety of the victim. This delay is too long. Victims are often at an increased risk of violence when they seek intervention by courts or service providers, thus courts should act immediately to provide protection to the victim. Article 19: Issuance of emergency protection orders Article 19 (5)(c) repeats the directive to the court to notify the social services department of its issuance of a protection order. This provision may deter domestic violence victims from using the law. Read in the context of Article 10, which allows for placement of minors in shelters, a domestic violence victim may fear separation from her children if she reports violence to government officials.
The Advocates for Human Rights Comments on New Mongolian Domestic Violence Law
For the Mongolia country page, click here. Mongolian Law Against Domestic Violence (May 2004) The Mongolian Law Against Domestic Violence (hereinafter, the Law) includes positive changes in legislation with regard to domestic violence. The Law articulates important principles on which it is based. Article 4 states, “Activities aimed at combating domestic violence shall be based on the principle of providing security to victims, prevention from possible violence, taking complete measures against violence timely, influencing behavior of offenders and strengthening stable family relationship.” The Law also states that the State shall provide shelter to victims and promote NGO activities aimed at combating and preventing domestic violence. Government funding of these activities is also addressed in the Law. The Law provides the important remedy of orders for protection. However, the Law also presents many potential obstacles to ensuring domestic violence victims’ safety and offender accountability for violent crimes. The Law contemplates a great deal of state intervention in cases of domestic violence, independent of victims’ wishes or requests and without the involvement of advocates who work with victims and can best represent their interests. For example, Article 7.1 authorizes police, “To submit a request to the court regarding an issuance of temporary protection order or protection decision.” Article 8.1.1 authorizes social welfare staff, “To assess environment in domestic violence might occur and define level of negative influence of the environment and danger jointly with police officers”. Article 10.1 obligates teachers, medical personnel and social welfare staff to inform police of violence or “potential violence. Articles 14 and 15 authorize attorneys, social welfare staff and others to request an order for protection and Article 16.3 provides the court with authority to issue the order based on that request. Provisions which authorize government representatives to make decisions about the issuance of an Order for Protection without the involvement of the victim may in some cases interfere with safety and other interests of the victim. A primary goal of government intervention in cases of domestic violence should be to respond to the needs of victims. This goal is not served by provisions in the Law which authorize government action and intervention in the Order for Protection process independent of the victim’s wishes. In addition, women who are victims of violence are most often the best judges of the dangers presented to them by violent partners. Therefore, it is not advisable to exclude them from decisions about how to handle a violent situation in their home. This is particularly true since we know that one of the most dangerous times for many women is when they separate from their abusers, which would occur, of course, upon the issuance of an Order for Protection as provided by the Law. A 2003 study described by the Family Violence Prevention Fund confirmed that "[s]eparating from an abusive partner after having lived with him, leaving the home she shares with an abusive partner or asking her abusive partner to leave the home they share were all factors that put a woman at 'higher risk' of becoming a victim of homicide." It is very important for a battered woman to make her own decision to leave a relationship because she is in the best position to assess the potential danger.
The Advocates for Human Rights Comments on New Romanian Law on Domestic Violence
For the Romania country page, click here.Romanian Law to Prevent and Fight Against Domestic Violence (May 2003) The Romanian Law to Prevent and Fight Against Domestic Violence (Romanian)(hereinafter, the Law) includes positive changes in legislation with regard to domestic violence but also presents many obstacles to ensuring domestic violence victims' safety and offender accountability for violent crimes. Positive aspects of the law include the following: - The Law states that domestic violence encroaches on womens fundamental rights and freedoms. (Art. 2)
- The Law provides for the establishment of both public and private shelters along with social services for victims of domestic violence. (Art. 23)
The Law allows for public subsidies for private organizations that serve victims of violence and directs government ministries to conduct research and education on domestic violence. (Arts. 7, 17 and 18) The Law allows courts to order that violent offenders leave the family home. (Art. 26)
The following provisions of the law present obstacles to ensuring the safety of domestic violence victims and the accountability of offenders for their violent crimes. The language of the Law frequently focuses on the protection and support of the family rather than the safety of domestic violence victims and the accountability of violent offenders. For example, the first sentence of the Law Chapter 1, Art. 1 (1) states that it is in the national interest to protect and support the family. Art. 8 (2) states that the objective of the agency charged with implementing the Law, the National Agency for Family Protection, is to support family values. While the goal of providing support to families is admirable, there are circumstances where the Law's focus on protecting the family may not serve the interests of a domestic violence victim seeking to escape a violent familial relationship. Experts involved in drafting model domestic violence legislation recognize the importance of laws which prioritize victim safety. See the sections of this website entitled United Nations Framework for Model Legislation on Domestic Violence and United States Model Code on Domestic and Family Violence. The Law anticipates a great deal of state intervention in cases of domestic violence, independent of victims' wishes or requests and without the involvement of advocates who work with victims and can best represent their interests. For example, Art. 13 (1) requires that family social workers identify and keep account of the families where potential violent situations may occur and identify amiable settlement by maintaining contact with the persons herein. Provisions that authorize government representatives to independently make decisions about a domestic violence situation may in some cases interfere with safety and other interests of the victim. The Law contemplates that victims of domestic violence need social rehabilitation. See Art. 8 (2) c and Art. 9 (1) j. In fact, many victims of domestic violence do not need psychiatric counseling or rehabilitation services. Rather, domestic violence victims need government agencies to focus resources on ensuring their safety through adequate provision of shelters and economic opportunities and ensuring offender accountability through adequate criminal laws and procedures. The Law's reference to "conflicting parties" diminishes offender accountability for violent behavior and reflects an assumption that both parties are equally at fault for violence. (See Art. 16 c and e). The Law's directive that state representatives counsel the conflicting parties to the purpose of mediation diminishes offender accountability for violent behavior and reflects an assumption that both parties are equally at fault for violence. Art. 16 (1) e. It also may further endanger victims of domestic violence since, if seen as an alternative to criminal prosecution, it may allow for violent offenders to avoid criminal prosecution and sanctions for their behavior. Finally, as discussed in the OFPs and Family Law Issues section of this website, mediation is based on an assumption that both parties in a relationship have equal power to negotiate. This is usually not the situation in domestic violence cases and mediation may actually present additional risk of danger to victims. The Law presents a risk that a domestic violence victim will be further victimized by the State by having her children taken from her. Art. 16 states that the state should report cases to institutions of child protection. This may unfairly penalize a victim of domestic violence and may also not be in the best interests of the child. For a further discussion of these issues, see the Role of Child Protection Services section of this website. The Law does not provide victims adequate access to shelters. Art. 23 (2) states that victims may be admitted to shelters only in emergency cases or with written confirmation of the family social worker. By requiring an independent evaluation of the situation, the Law presents obstacles to victims who have decided that they or their children are in danger. In most cases of domestic violence, it is the victim who is best able to evaluate the level and immediacy of danger presented by an offender. For more information on this issue, see the Safety Planning and Safehouses and Shelters sections of this website.
The Importance of Confidentiality Between Domestic Violence Advocates and Domestic Violence Victims
By Rana SA Fuller, Esq. Managing Partner and Staff Attorney at the Battered Women’s Legal Advocacy Project, Minneapolis, Minnesota, U.S.A. Domestic violence is a critical problem, and confidentiality and privacy are essential to protecting victims from perpetrators’ recurring violence. Countries in Central and Eastern Europe (CEE) and the Former Soviet Union (FSU) working to end domestic violence and hold batterers accountable for their crimes of violence should pass laws to protect the confidential communications of domestic violence advocates and domestic violence victims. The lessons learned by domestic violence advocates in the United States, where issues of confidentiality and privacy have not always been addressed effectively, may be helpful to advocates in CEE/FSU countries. Confidentiality and privacy lead to increased safety for victims of domestic violence. Perpetrators of domestic violence create a pattern of fear and cause serious injury and even death to their intimate partners and children across the world. The prevalence and pervasiveness of domestic violence is well documented. On average, at least one in three women is beaten, coerced into sex, or otherwise abused by an intimate partner in the course of her lifetime.[1] According to the World Bank, “women aged 15-44 are more at risk from rape and domestic violence than from cancer, motor accidents, war and malaria.”[2] The World Health Organization (WHO) also reported that studies from a range of countries show that 40-70% of female murder victims were killed by an intimate partner.[3] While domestic violence can be lethal, it involves an ongoing pattern of abuse and control by perpetrators. Indeed, “[i]t is vital to understand that battering is not a series of blow-ups. It is a process of delicate intimidation intended to coerce the victim to do the will of the victimizer.”[4] Due to intimidation and embarrassment, many victims do not seek help from the police. According to the United States National Crime Victimization Survey, the most common reasons given by victims for not contacting the police were that they considered the incident a private, personal matter; they feared retaliation; or they felt the police would not be able to do anything about the incident.[5] In the United States, at least 1 in 6 women victims seek help from victim services agencies.[6] “A 2005 WHO study based on data from 24,000 women in ten countries noted that 55% to 95% of women who had been physically abused by their partners had never contacted the police, non-governmental organizations or shelters for help.”[7] The WHO study cites fear and shame as reasons for not seeking help.[8] Confidentiality and privacy are essential for domestic violence programs to protect victims of domestic violence. Women using domestic violence program services are taking courageous steps toward freedom. Domestic violence programs do not simply offer shelter from the storm of domestic violence; they offer advocacy services. That advocacy is rooted in providing safety, so it must remain confidential in order to provide battered women with a refuge in which to weigh options and make plans for achieving freedom from the batterer’s violence. Safety planning, including taking steps to ensure that a victim’s location, telephone number, and other contact information will not be revealed, is essential. This is why domestic violence programs do not release confidential information without the consent of victims. Without the assurance of confidentiality, many victims would not seek help from a shelter or domestic violence program. The communications of advocates and victims need to be confidential because the danger the victim is in cannot be assessed properly without full disclosure of the history of abuse. Legal options cannot be considered thoroughly without knowing intimate details of the battered woman’s life and a proper safety plan cannot be created without knowledge of her circumstances. As noted above, battered women fear their information will be shared with others. Domestic violence programs should not be forced to share information that would shatter the safety battered women are seeking. In 1995, Bonnie J. Campbell, the Director of the United States Violence Against Women Office, presented a report to Congress about the need for domestic violence programs to have confidentiality with the victims to whom they speak.[9] Ms. Campbell stated: “Domestic violence victims must be able to communicate freely with their counselors, secure in the knowledge that the private thoughts and feelings they reveal … will not be publicized as a result of reporting the crime. Without assurances of confidentiality, sexual assault and domestic violence victims will be reluctant to contact rape crisis centers and battered women’s shelters. Moreover, without the … benefits of counseling, victims may be hesitant to report crimes and aid in their prosecutions.”[10] This Report to the United States Congress also stated that the services offered by domestic violence programs “are the most effective means of protecting battered women and ending domestic violence because of the special nature of domestic violence and the unique combination of services offered… Battered women’s programs [are] essential to battered women’s ability to end the violent relationship and rebuild her life.”[11] Forcing disclosure of domestic violence organizational records will have a chilling impact on the relationship between domestic violence victims and their advocates and will compromise the safety of battered women. Divulging confidential information about the victim or subpoenaing the advocate or the program’s records will have a “substantial chilling effect”[12] on the victim/advocate relationship, including that victims will be “reluctant to be open and honest about their experiences.”[13] “Experience has shown that the communications between victims and counselors are so extremely personal that the mere possibility of exposure to just one individual other than one’s personal counselor may inhibit a victim ... There is some evidence that concerns about potential disclosure in litigation do inhibit victims.”[14] The safety of victims is guaranteed only to the extent that they can trust programs to offer confidential and private services. For that reason, many shelters have secret locations and confidentiality policies requiring staff and residents to honor the confidences and privacy of those who seek services. If women feel that their confidences will be broken, the program will stop being a “haven[] where [a battered woman] can recuperate from her wounds, recover her sense of self, and re-evaluate her situation.”[15] Just as a bell cannot be unrung, once confidentiality and privacy have been breached, the battered woman’s safety and sense of trust cannot be repaired. The records of domestic violence victims are confidential and private and therefore should be protected from discovery or exposure during the trial process. The negative impact of disclosure reaches beyond the individual case. Once an advocacy program is forced to disclose information, the program’s reputation as a place of safety is lost. Forcing disclosure of domestic violence organizational records will have a negative impact on battered women reporting violence and cooperating with prosecution. Forcing disclosure of advocacy records will deter many victims who would otherwise seek important services. After the Pittsburgh Action Against Rape (1981) decision, a court decision in the United States in which the court allowed access to a rape crisis center’s records, victims requested their records be returned and many victims terminated their relationship with the crisis center altogether out of fear that their information would become public.[16] In the state of Massachusetts, the Commonwealth v. Stockhammer[17] and Commonwealth v. Figueroa[18]cases allowed defense counsel to gain access to confidential rape crisis center records. These decisions led to defense counsel routinely filing motions for access to rape crisis center records for the purposes of harassment of the victim and with the goal of obtaining conflicting statements.[19] These requests were rarely denied.[20] As a result there was a significant decline in the number of women seeking the services of rape crisis centers in the state of Massachusetts. There was a 30% increase in the number of questions about confidentiality of records, a 10% increase in the refusal of help from centers and a staggering 20% drop in the number of rape crisis center victims reporting the assault to the police.[21] These court decisions left rape victims with a choice: seek legal action knowing that all information from counselors could be accessed or suffer in silence.[22] In order to protect victims of violence and hold batterers accountable, countries in the CEE/FSU should carefully examine the lessons learned by advocates in the United States where domestic violence laws have been in effect for over thirty years. Ensuring that laws protect the confidential communications of domestic violence advocates and domestic violence victims creates an environment of safety for all and is a critical component of breaking the cycle of violence.
[1] Unite to End Violence Against Women Fact Sheet, United Nations Secretary General’s Campaign, United Nations Department of Public Information (DPI/2498), February 2008. [4] Ann Jones, Next Time, She’ll Be Dead: Battering and How to Stop It, 88 (1994). [5] Lawrence A. Greenfeld, Violence by Intimates: Analysis of Data on Crimes by Current or Former Spouses, Boyfriends, and Girlfriends, Bureau of Justice Statistics, 21 (March 1998). [7] Unite to End Violence Against Women Fact Sheet, United Nations Secretary General’s Campaign, United Nations Department of Public Information (DPI/2498), February 2008. [9] Report to Congress: The Confidentiality of Communications Between Sexual Assault or Domestic Violence Victims and Their Counselors, Findings and Model Legislation (hereinafter Report to the United States Congress) available at: http://www.ncjrs.gov/App/Publications/abstract.aspx?ID=169588 (last accessed 19 September 2007) [12] Report to the United States Congress at 19. [15] Del Martin, BATTERED WIVES, 197 (1976). [16] Commonwealth v. Wilson, 529 Pa. 268, 276 n. 6 (Pa. 1992); see also Pittsburg Action Against Rape, 494 Pa. 15, 428 A.2d 126 (1981).. [17] Commonwealth v. Stockhammer, 570 N.E.2d 992 (Mass. 1991). [18] Commonwealth v. Figueroa, 595 N.E.2d 779 (Mass. 1992). [19] Anna Y. Joo, Note: Broadening the Scope of Counselor-Patient Privilege to Protect the Privacy of the Sexual Assault Survivor, 32 Harv. J. on Legis. 255, 284 (Winter 1995). [21] Id. at. 284, n. 183.
The Law on Protection against Domestic Violence in Bulgaria: Insights and History
Genoveva Tisheva- Managing Director of the Bulgarian Gender Research Foundation For the Bulgaria country page, click here. 1. Introduction: The Environment to Be Changed
On 16 March 2005, the Bulgarian parliament adopted the Law on Protection against Domestic Violence. The Law was promulgated in Durzhaven Vestnik (State Gazette) No. 27 on 29 March 2005. It is a great victory for Bulgarian women and women’s NGOs. In Bulgaria, as in other countries, violence against women hampers the realization of their human rights, is one of the main causes for their worsened health and has a very high cost for society - lost labor force and human potential, as well as costs for social services, rehabilitation, law enforcement, the judiciary, etc. Statistical data for the country from 2002 show that there were 449 divorce cases primarily due to physical and psychological abuse. Of these, 371 were acts of men, 15 of women, and 22 of both spouses. Such abuse is one of the main reasons for divorce, after mutual consent and incompatibility of temperament, bearing in mind that domestic violence also exists in cases considered under other causes for divorce. In addition, divorce has been decided 4.4 times more often due to men’s fault than to women’s. According to a representative study by the National Centre for Study of the Public Opinion in 2003, physical violence by the male partner is the most common form of violence in the Bulgarian family and among partners. 66.2% of the respondents identified it as such. Until very recently, violence against women in Bulgaria was not perceived as a serious public problem deserving special legal regulation. Ignoring the extent and underestimating the importance of this phenomenon in Bulgaria has been due to a range of factors. The concept inherited from the previous regime that gender equality was already achieved in Bulgaria is certainly one of the reasons. It is combined with the hypocrisy of society, which accompanies such an inconvenient issue as violence against women. The deeply-rooted patriarchal stereotypes which characterize the Balkan and Mediterranean regions represent an additional factor. Furthermore, the persistent public/private divide confines women and the violence suffered by them to the private sphere of society. Violence against women is a form of discrimination against women which is most related to cultural stereotypes. It is one of the strongest expressions of gender stereotypes, and at the same time is the tool used to maintain the defined roles of men and women in society. Therefore, the position of women in the family is the expression of the role attributed to them in society. The law in most countries just affirms the unequal position of women in society and, subsequently, in the family. According to Prof. Michael Freeman in "The State, the Law and the Family," law not only serves and reproduces the social order, but in reality creates and defines this order. The legal form is one of the main expressions of the social practice, the expression of the real relations of inequality of the two sexes. Law defines the character and creates the institutions of the social relations in the frame of which the family acts. The legal system continuously reproduces a concrete ideological concept of the relations between the two sexes which can be defined as patriarchal ideology. In that context, the adoption of the Law on Protection against Domestic Violence is a real breakthrough for women in Bulgaria. In recent years, a positive trend has been observed, thanks to the persistent efforts of women’s NGOs, as well as foreign pressure and the challenge of EU accession, in which the issue of violence against women has received increasing public attention and recognition. The development by NGOs of support services for women who have suffered violence and the influence of the decade of human rights conferences during the 1990s contributed to this growing phenomenon. As a result of these processes, legislation in the field of violence against women and non-discrimination was progressively adopted: the Law for Combating Trafficking in Persons and the respective changes in the Penal Code; the Law on Protection against Discrimination; and, most recently, the Law on Protection against Domestic Violence. The starting point for defining domestic violence in the new Bulgarian Law on Protection against Domestic Violence is the broad understanding of this phenomenon. Domestic violence, as defined by international documents and practice, in its typical form means: any act of violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, perpetrated by their male partners, whether they are married or not, and whether they live together or not. For the purpose of the new law, domestic violence is interpreted broadly, encompassing any physical or sexual violence or threats of such violence, as well as psychological or mental violence (such as repeated verbal abuse, harassment, confinement, deprivation of resources, control of contacts, etc.) between spouses, within the family, or between related persons. 2. Main Features of the Law
It is significant that protection against domestic violence is contained in a special piece of legislation. With this new law, the State recognizes the importance of combating domestic violence in Bulgarian society, and by that confirms that violence within the family and the partnership is no longer a private but a public concern. The fact that a law was adopted separate from the Family Code means that the relations regulated by this law go beyond family relations. In fact, the circle of the persons protected is now much broader. The law provides for a special urgent civil procedure in cases of domestic violence. It is a sui generis procedure although similar to the quick civil procedure. The law also contains elements of criminal procedure, but remains within the framework of the civil one which allows the shift of the burden of proof in favor of the victim of domestic violence. The essence of the law is the issuing by the regional court of special orders for protection of victims of violence which contain restraining measures for the aggressors. The new regulation is a modern law which will bring the Bulgarian legislation into compliance with the international standards on violence against women. A definition of domestic violence is introduced in Art. 2: it is any act of physical, psychological or sexual violence, or the attempt at such violence, restraining of the personal freedom and the private life inflicted on persons who are or have been in family relations or are related, who live in factual cohabitation or live in the same dwelling. Such a definition encompasses violence committed by (Article 3): a spouse or a former spouse, a person who is or has been in factual cohabitation with the victim, a person who has a common child with the victim, a person in ascending relations or descending relations, siblings, a person who is connected by marriage with the victim up to the second level, a guardian, a tutor or a foster parent. The orders for protection are vested in the form of a court decision and can contain one or more of the following measures: constraining the aggressor not to commit further acts of domestic violence, separating the aggressor from the victim and from the common dwelling, restraining the rights of the aggressor to approach the dwelling, the workplace and the places for social contact of the victim, ordering interim measures for contact with the child when they are in the best interest of the child. Further measures contained in the protection order may be: directing the victims toward programs for rehabilitation and obliging the aggressor to attend special treatment programs. The validity of the protection order is for up to one year. In all cases of violence, the court imposes a fine on the aggressor - from 200 to 1000 leva (100 to 500 EURO). It can be recommended that other measures not explicitly mentioned in the law, and as specified by the court, should be provided in order for the court to be more flexible in each individual case. The procedure for protection against domestic violence may be initiated by the victim, or upon request of the executive director of the agency for social assistance. There is another possibility in case of the need for urgent protection - by an application from close relatives of the victim. Another important element in the new law is the possibility of issuing the order in some cases based only on the declaration of the victim in the absence of other evidence. In order to expedite the procedure, the applications and requests will be registered immediately, and guarantees exist that the decision will be issued within 1 to 1½ months. In cases of serious threats for the health and life of the victim, an urgent procedure is applied where the order for protection is issued for 24 hours in an ex parte procedure, which then goes through the normal procedure for issuing protection orders. The documents issued by the NGOs working in the field of victim support are recognized in the procedure. Police play an important role in the urgent protection of victims of domestic violence when they carry out the notification of the aggressor about the court procedure and court order, and especially in the implementation of the restraining orders which make up part of the court decision. Such restraining orders limit the possibility of the aggressor committing further violence and take him/her away from the common dwelling and the places for contact with the victim. These measures are implemented with the participation of the police. Furthermore, in the case of non-compliance of the aggressor with the court decision, the police arrest him/her and notify the prosecutor. A special role is attributed to NGOs working in the field of domestic violence. Those registered according to the Law on Social Assistance can issue documents which will be presented in court, their representatives can participate as witnesses of the effect of violence on the victim, and they are included in the network of social programmes for rehabilitation of the victims. In addition, further cooperation of NGOs with State institutions is envisioned. This cooperation will be in the areas of prevention of domestic violence, victim support, and selection and training of persons who will deal with the implementation of the law. Despite the need for additional legislative changes, including changes to the criminal code, the adoption of this law is, undoubtedly, a sign of substantial progress in Bulgarian legislation. 3. The Drafting and Lobbying Process: A Question of Strategy, Professional Work and International Support
The drafting of the Law on Protection against Domestic Violence began as a non-governmental initiative. The idea for such a law was born after the Beijing conference and more specifically in 1997-99 with a project of the Bulgarian Gender Research Foundation (BGRF) with The Advocates for Human Rights (MAHR): “Combating violence against women through research and education” funded by the PROWID Program - USA. The Gender Project for Bulgaria Foundation was another partner on the project. In 1996, The Advocates undertook a human rights fact-finding report on domestic violence as a human rights abuse, and published its findings in Domestic Violence in Bulgaria (March, 1996). This was followed with further legal research by MAHR and the BGRF on the issue of domestic violence in Bulgaria and the gaps in the Bulgarian legislation. The commitment, the example and the expertise of Robin Phillips, Cheryl Thomas, Loretta Frederick, and Aviva Breen from MAHR were crucial for the implementation of the project and for influencing and motivating the Bulgarian partners, in particular the BGRF, to propose changes in legislation. The report, including legal research and an analysis of case law, was published and disseminated by the BGRF among NGOs and other institutions in Bulgaria. As a follow-up, in 1999-2000 the BGRF started working on a new project of legal aid for women victims of violence. This project, “Innovative strategies for combating violence against women in Bulgaria - a pilot scheme for legal aid and legal clinics,” was funded by the Dutch foundation NOVIB and was implemented until the year 2002. In the course of the project strong contacts were created, both with the centers for psychological support of women victims of violence in Sofia, Plovdiv, Varna, Bourgas, Silistra, and Pernik, and with lawyers committed to the work on violence against women. As a result of the project, more than 200 women received legal consultations and some of them were represented in court procedures; a network of 25 lawyers dealing with domestic violence cases was created in the country; and awareness was raised among legal practitioners, especially judges and prosecutors, about the need to change the existing legislation in the field. During the years 2000-2002, a small group of lawyers from the BGRF, including the director, Genoveva Tisheva, and the attorneys-at-law from the network of lawyers dealing with domestic violence, Daniela Gorbounova and Albena Koycheva, started working on a draft law on protection against domestic violence. ABA/CEELI in Bulgaria provided logistical support for the initial meetings of the working group, which were also attended by other lawyers and academics, including Prof. Irina Moulechkova, Chair of the Board of the BGRF, and Velina Todorova. This core group of lawyers prepared an initial draft by mid-2001 and began looking for opportunities to propose the draft to government institutions. In the meantime, the draft was discussed at meetings and seminars with judges and other legal professionals organized by the BGRF during the implementation of the above-mentioned project. The essence of the draft law was the quick and urgent measures for protection in a special civil procedure, including the issuing of protection orders in favor of the victims of violence. The work on the draft law by the legal experts was done on a voluntary basis. After the national elections in June 2001, a favorable environment was created in the parliament with the election of 26% of women in the 39th National Assembly. In early July 2001, the BGRF organized a seminar for the new Members of Parliament (MPs) with the purpose of informing them about the new ideas for legislation in the field of gender equality. The draft law elaborated by the working group was among their materials for the seminar. This first seminar with parliamentarians was part of the BGRF project “Bringing Gender Equality to the Agenda of the Bulgarian Parliament”, funded by the Westminster Foundation for Democracy. It brought together many new women MPs, including Marina Dikova. Subsequently, during the 2001 “16 days against Violence against Women” campaign, the BGRF and other women’s NGOs initiated a campaign for the adoption of legislation against domestic violence. In the middle of the campaign, Genoveva Tisheva and Daniela Gorbounova took part in an interview at the National Radio and announced that it was high time for the state to take responsibility for domestic violence, and that a draft law was available to the MPs. One woman MP, Marina Dikova, was interviewed in parallel in the parliament. She said on the radio that she was interested in the draft and invited the two representatives of the civil society to the Committee on Legal Issues in the parliament. Thus, the initial draft law reached the parliament at the end of 2001-beginning of 2002. A period of negotiations followed between the core group of lawyers working on the draft and Marina Dikova and her colleagues, among which were the Chair of the Committee, Anelia Mingova, and Konstantin Penchev. Some minor changes in the draft law were made at that stage. In the meantime, the BGRF continued to discuss the draft with legal practitioners and with international partners, including The Advocates for Human Rights. A visit to Minnesota in spring 2002 provided a comparison with the American experience and the chance to meet with the Bulgaria committee which was created at The Advocates for supporting the preparation and campaigning for the law in Bulgaria. In the meantime, a regular dialogue between Marina Dikova and the BGRF was established. The MP made the decision to introduce the law in the parliament, but it was decided to seek the opinion of the Ministry of Justice prior to that in order to have more credibility. This was done in mid-2002 through the vice-minister, Meglena Tacheva who was provided with the draft law and all supporting materials - publications, list of supporters among the legal practitioners - by the BGRF. In autumn 2002, a new stage in the fight for the law began: the Minister of Justice issued an order for the creation of a working group in the Ministry “for the elaboration of a draft law on quick measures for protection of victims of domestic violence”. The group was composed of representatives of the following institutions: Ministry of the Interior, Ministry of Labor and Social Policy, Ministry of Health, Ministry of Justice, the Sofia City Bar, the Chief Prosecutor’s Office and a representative of the Bulgarian Gender Research Foundation. Genoveva Tisheva and Daniela Gorbounova were the representatives of the civil society in this group. Another lawyer – Kalina Lozanova from the network of lawyers dealing with domestic violence - was representative of the Sofia Bar. The group started working at the end of 2002, using the initial draft agreed to by the first working group and the Parliamentarian Committee on Legal Issues. In the meantime, in autumn 2002 the BGRF started working on a special project funded by NOVIB and aimed at lobbying for the adoption of the Law on Protection against Domestic Violence. The Public Relations officer of the organization, Iliana Stoycheva, was asked to work together with the Executive Director at the level of the government and the parliament for reaching the final goal. A professional journalist was hired for the planning and organization of the lobbying campaign. Thanks to this project, the BGRF managed to concentrate its efforts on coalition building with the other NGOs and on specific lobbying activities until spring 2004. In fact, it played a major role in the 2002 campaign against violence when the other NGOs supported the efforts of the experts - organizations like Animus, Gender Project for Bulgaria Foundation, Nadia, Demetra/Bourgas, SOS-Families at Risk/Varna, Women’s Alliance for Development and many others. Thanks to the support of OSI, the BGRF could continue the legal aid program for women victims of violence and draw experience from these real cases. The expert work with the Ministry of Justice and the MPs was also facilitated by the educational projects on non-violence the organization was implementing in schools. The partnership with Demetra Association on such an educational project combined with the pilot work of this Association with male perpetrators was a particularly valuable initiative. The projects were funded by UNIFEM and by the Global Fund for Women. The year 2003 was particularly important for the Law. After the completion of the work of the Ministry of Justice working group, on April 17, 2003 Marina Dikova officially introduced the Draft Law on Protection against Domestic Violence with a major press conference in the parliament. The draft was based on the initial draft law with some changes implemented by the working group in the Ministry of Justice. M. Dikova had managed to get the support of some MPs from all the party groups represented in the parliament. An important period of campaigning and lobbying followed. The introduction of the Draft law coincided with the visit of the Secretary General of the European Women’s Lobby, Mrs. Mary McPhail to Bulgaria. She was invited by the BGRF for this event and for the purpose of establishing on April 17, 2003 the Bulgarian Platform of the EWL. This symbolic coincidence brought the support of the biggest women’s coalition in Europe for the act of introduction of the draft. In fact, letters of support were sent by the Lobby to the Bulgarian parliament. Such letters were also sent by MAHR and other institutions from Minnesota and the United States. In 2003, representatives of MAHR visited Bulgaria in May and in November upon invitation of the BGRF for events organized with the parliament, the government institutions, the media, and the judges. Robin Phillips, Cheryl Thomas, Loretta Frederick, Aviva Breen, former judge Mary Louise Klas and other experts from Minnesota joined their efforts to those of their Bulgarian colleagues for further promoting the Draft law in the parliament. Different political parties were lobbied for their support for the draft in the parliamentary committees. During 2003 Bulgarian organizations like Demetra and Women’s Alliance for Development collected signatures for lobbying the parliament for the adoption of the law. The most important lobbying took place prior to the session of the Committee on Legal Issues in April 2004. In this period the BGRF also sought the support of the judges from the Regional Court - Family Division. They gave their support in principle and made some comments on the draft. The Consultative Committee on Legislation (an expert committee to the Chair of the National Assembly, which gives opinions on the draft laws) was strongly lobbied, as well. The BGRF and other NGOs were invited to attend the session of the Committee on Legal Issues. One of the judges also attended the session and spoke in favor of the law after the BGRF representative. The approval by this Committee of the draft law for first reading, despite the negative votes of some opponents of the law, was a crucial moment. At the end of June 2004, the first reading in the parliament was done. Based on the comments of the Committee on Legal Issues, some amendments had to be discussed and the law had to be redrafted before the second reading. Marina Dikova and the initial group of lawyers working on the very first draft (Daniela Gorbounova, Genoveva Tisheva, Albena Koycheva) undertook this job. Once the final version was prepared, it was discussed again in the parliamentary Committee on Legal Issues, and since the fall of 2004 awaited its turn on the agenda of the 39th National Assembly. During this final period the dialogue with Marina Dikova was very important, as was the continuous lobbying through other MPs and party groups. The Law on Protection against Domestic Violence was finally passed at its second reading on 16 March 2005. In this process, the role of the staff of the BGRF and of the lawyers from the network of lawyers on domestic violence, as well as the support of partner NGOs and the media were all crucial. The contribution of international partners and donors was very important, as well.
Two Minnesota Prosecutors Explain the Need for Increased Criminal Penalties for Strangulation in Domestic Violence Cases
Fred Karasov is a Senior Attorney in the Hennepin County Attorney's Office on the Sexual Assault Team in the Violent Crimes Division in Minneapolis, Minnesota. Mr. Karasov is an expert on domestic violence prosecution, the former Supervising Attorney on the Domestic Abuse Team in the Violent Crimes Division and a former member of the Hennepin County Domestic Fatality Review Team in Minnesota. Below he explains the seriousness of strangulation attempts in domestic violence cases and why he supports new legislation to provide for increased penalties in these cases. A batterer who is strangling a victim literally has her life in his hands and they both know it. It has been described by victims as one of the most terrifying experiences they’ve ever had. Strangulation has been repeatedly demonstrated to be extremely high on the lethality assessment scale, meaning women who are assaulted by strangulation are at a far greater risk of eventually being murdered. As a result, strangulation is more serious than a misdemeanor assault by other means. Yet as of October 2004, only three states, Missouri, Oregon and North Carolina, have specific felony strangulation laws. Some would argue that Minnesota’s current assault statutes are sufficient to address strangulation, since proving substantial or great bodily harm would elevate these assaults to felonies with more serious penalties. The problem is that there are hardly ever any visible signs of substantial or great bodily harm, and in fact there are often NO visible signs of injuries at all. External strangulation injuries to the neck region are insufficient to support felony charges based on the way are current statutes are written. Doctors’ examinations to look for internal injuries, if they’re done at all, don’t necessarily discover medical evidence to support felony charges under Minnesota’s current law. While under the current assault statutes the presence of medical evidence (e.g., bruised larynx or vocal chords) is essential to successful prosecution of these cases as a felony, the absence of medical evidence does not diminish the extreme terror or the seriousness of the assault when the victim is being strangled and believes she may die. Currently, there is no statutory consideration for the location of the injuries when determining the seriousness of the charges. A bruise to the arm is considered just as serious as a strangulation bruise to the neck. Recognizing the relevance of the location of injuries in assessing the severity of an assault, the Minnesota Legislature changed the law with respect to child abuse cases. They created a new felony when a child under the age of four has bruises to the head, eyes, or neck or had multiple bruises to the body because of the heightened danger to the child from injury in these areas. This same kind of distinction should be made in cases of strangulation. It is time to recognize the increased danger to the victim and the increased seriousness of the offense of assault by strangulation and to enact felony strangulation legislation. Susan Gaertner is the County Attorney for Ramsey County in Saint Paul, Minnesota. Ms. Gaertner is an expert on domestic violence prosecution; as County Attorney she spearheaded the creation of the Joint Domestic Abuse Prosecution Unit - a special prosecution unit focusing on domestic assault cases where children are present. Ms. Gaertner's remarks were originally published in the Saint Paul Pioneer Press on March 15, 2005 and are reprinted with permission. Molly was shaking uncontrollably when police arrived at her St. Paul apartment. Nasty red scratches and finger marks were visible on her neck and throat. Fighting back tears, the 25-year-old woman told police her boyfriend had become enraged, grabbed her around the neck and strangled her — to the point where she blacked out. When she regained consciousness, he was dumping garbage on her and threatening her. She managed to run out of the apartment and scream for help. Luckily, a neighbor intervened and called police. Molly was lucky to survive. A person being strangled can lose consciousness in seconds and die in just minutes. Chances are, Molly came perilously close to crossing that thin line between life and death. It was a very serious attack, but prosecutors were limited to charging the assailant with assault in the fifth degree, a misdemeanor. He served just 90 days in the workhouse. Unfortunately, that was the best prosecutors could do under our current laws. In Minnesota, strangulation usually can't be charged as a felony unless the victim dies. The Minnesota Legislature is considering a bill to create a new felony-level crime of domestic assault by strangulation. We desperately need this new law for one primary reason: homicide prevention. The sad fact is, Molly's case isn't unusual. Police and prosecutors see countless cases of domestic assault involving strangulation. We know from the research and our own experience that domestic abusers who strangle their victims often eventually kill them. That's why strangulation is a huge red flag for future homicides. In domestic assault situations, strangulation is one of the scariest and most effective ways an abuser can exercise power and control over a victim. A person who has his hands around a victim's neck is looking straight into her eyes and watching her come within a hair of dying or — in far too many cases — watching her actually die. "Look at the power and control I exercise over you," the assailant is saying to his victim. "I decide whether you live or die." It's a horrifying experience for the victim — extremely painful, terrifying, dehumanizing — and often lethal. In Minnesota, at least 50 women and children were strangled to death by a partner or household member between 1989 and 2004, according to the Minnesota Coalition for Battered Women, a leading proponent of the legislation. A felony strangulation law will help us to save lives by intervening in some of the most abusive, violent relationships and seeking tough consequences for the offenders. This change also will encourage the criminal justice system to pay more attention to strangulation in domestic assault cases. Historically, the fact that a domestic abuser strangled his victim might not even be mentioned in a police report or included in a charging document. Evidence of strangulation just hasn't been necessary to prove a misdemeanor case where other assaultive behavior is involved. As a result, we haven't even asked victims the right questions. And so, we've missed warning signs for future homicides. The proposed law would send a message to everyone in the criminal justice system: "Wait a minute. This isn't just a misdemeanor. It's a case that deserves further investigation. We need to ask more questions." In St. Paul, we already are seeing this happen. Last fall, in anticipation of this legislation, my office and the St. Paul Police Department began training police to watch for signs of strangulation in domestic assaults. Armed with this heightened awareness, police are submitting reports that fully document evidence of strangulation. In the long run, this will help to save lives. As it stands now, our laws allow a domestic abuser to come within seconds of strangling someone to death and get by with a slap on the wrist. Essentially, we're saying, "Lucky you. She lived. You're going to get by real easy — even though everything we know suggests you may kill her next time." We need to recognize the seriousness of strangulation in domestic situations. The proposed legislation deserves strong support.
Ukraine Amends Legislation on Domestic Violence
Mary E. Rude On 25 Sept 2008 the Ukrainian Parliament (Verkhovna Rada) adopted a series of amendments to the law “On the Prevention of Violence in the Family.”[1] Activists in Ukraine have been advocating for revisions to the domestic violence law since it was passed in 2001, and the current revisions have been under debate in the Ukrainian Parliament since 2007. The new amendments address many, though not all, of the concerns human rights activists had with the earlier domestic violence legislation. The previous version of the law was adopted on 15 November 2001 as part of their “National Plan of Action on the Improvement of the Position of Women and Introduction of Gender Equality in Society 2001-2005,” which had been issued by the Ukrainian Cabinet of Ministers just months earlier.[2] The National Plan was structured to follow recommendations made by the Committee on the Elimination of Discrimination Against Women, and many aspects of the earlier law were influenced by international domestic violence legislation. The law, the first of its kind in Ukraine, was written in cooperation with Ukrainian women’s NGOs and included a remarkably expansive definition of domestic violence, allowing for any kind of physical, psychological, or economic violence that was committed against any family member of any sex.[3] The law was integrated into the Administrative Code of Ukraine, and implementation of procedures for responding to reports of domestic violence was assigned to the Ministry for Family, Youth and Children, which is currently called the Ministry of Family, Youth and Sport. While the adoption of the law was considered a victory for Ukrainian women, human rights activists had concerns with some of the provisions of the law. One of the most controversial components of the law allowed for police to issue “official warnings of provocative behavior” to victims of domestic violence if their behavior was deemed to have provoked the violence against them. Women who had received three or more warnings were no longer eligible to apply for a protection order. These warnings were heavily utilized by Ukrainian law enforcement officers, with almost 7,000 warnings being issued in 2004 and over 3,000 issued in 2005.[4] Although no follow-up studies of why the warnings were issued was conducted, activists suspect that these warnings were frequently given as a means to pressure victims into dropping their charges. From a psychological standpoint, this makes the victim feel responsible for his/her abuse and gives a great deal of power to the abuser.[5] The law was also criticized for the weak punishments available for perpetrators of violence. Typically, only a small fine was given, rarely in excess of $20.[6] No new provisions were made for any additional criminal punishment of abusers or removal from the home for more than a brief period of time.[7] The law did allow for the creation of crisis centers for victims, but these are run and financed primarily by Ukrainian and outside NGOs, and not all areas have easy access to them.[8] Hearings on domestic violence held in June 2004 with members of the Ukrainian Parliament helped to raise the issue again within the Ukrainian government, and brought to light many of the failings of the law that needed attention.[9] The amendments include the following changes to the previous law: - Removal of “provocative behavior provision” and warning system
- Expansion of definition of “family,” allowing for “family” to include persons living together but not married;
- Extension of the time period allowed for detention of those arrested for domestic violence from 3 hours to a maximum of 5 days pending trial;
- Creation of correctional programs for perpetrators of domestic violence to receive counseling on non-violent behaviors; and
- Replacement of references to domestic violence as “petty hooliganism” with the term “violence in the family.”
- Increase in the maximum fine allowances for those convicted of domestic violence in an administrative court
All of the amendments, especially the removal of the “provocative behavior” warnings for victims, are great improvements in the law. However, concerns about the law’s shortcomings remain. While the new amendments allow for up to 5 days of detention and significantly increased fines, this may still not prove to be a sufficient deterrent for perpetrators of violence. Authorities may also be unwilling to detain abusers for the 5 days, as domestic violence has not been traditionally thought of as a “crime” in Ukrainian society. Any larger punishments can only be handed down by a Ukrainian criminal court, which still views domestic violence offenses in the context of ordinary assault laws, and have historically been reluctant to bring criminal charges when the violence is against a member of the perpetrator’s family.[10] Human rights activists continue to monitor the legislative changes, the implementation of the law, and its effect on the Ukrainian populace. The Ukrainian Helsinki Human Rights Union, an association of 24 Ukrainian NGOs established in 2004 recently released the report “Human Rights in Ukraine – 2008,” praising the Ukrainian government for passing the amendments to the law and for the current work being done by government agencies and partner NGOs, especially considering the harsh economic recession and political turmoil that Ukraine has faced since 2008.[11] But this report and others also express concerns over Ukraine’s ability to effectively implement the law. Without sufficient funding granted or regulatory mechanisms created, it is unlikely that correctional programs for perpetrators of domestic violence will be able to function effectively. In addition, public awareness campaigns and trainings should be implemented to increase knowledge of the law and its associated programs. Currently, the Ukrainian public is largely unaware of their rights under the new law, and even government officials are often unfamiliar with how to implement new procedures. Recent campaigns, such as the “Stop Violence!” campaign presently underway, will hopefully raise awareness of women’s rights among the general population.[12] But domestic violence has been and continues to be a tremendous problem in Ukraine. While the numbers are most likely vastly underreported, in 2003 over 180,000 incidents of domestic violence were reported to the authorities.[13] But the dialogue is continuing. As part of the “Stop Violence!” campaign, further conferences have been held, raising new issues that may further improve Ukraine’s current approach to dealing with violence against women.
[3] “Human Rights in the OSCE Region: The Balkans, the Caucasus, Europe, Central Asia, and North America Report 2002 (Events of 2001),” Ukraine Chapter, International Helsinki Federation for Human Rights (2002), 332.
United States Supreme Court Delivers Blow to Victims of Domestic Violence
On 27 June 2005, the United States’ Supreme Court issued its opinion in Town of Castle Rock v. Gonzales. Jessica Gonzales sued the town of Castle Rock alleging that she had a property right to have a restraining order enforced and that Castle Rock’s failure to enforce it was an actionable deprivation. The Fourteenth Amendment to the United States Constitution provides that a State shall not “deprive any person of life, liberty, or property, without due process of law.” “The deprivation of any rights, privileges, or immunities secured by the Constitution and laws” is a basis for a cause of action in United States Federal Court. 14 U.S.C. §1983. The Court held, in a 7-2 opinion, that there is no property right to enforcement of a restraining order under the United States Constitution. In May 1999, in the course of divorce proceedings, a Colorado state trial court issued a temporary restraining order to Jessica Gonzales. The restraining order barred her ex-husband, Simon Gonzales, from contacting her, her children, or coming within 100 feet of her house, due to domestic violence. In June 1999 the order was made permanent. The order was modified to allow Simon Gonzales contact with the children on a limited schedule. On 22 June 1999, at around 5:30PM, Simon Gonzales kidnapped the three children from their front yard, in violation of the visitation schedule. Jessica Gonzales called the police. When the police arrived at her house, Ms Gonzales showed them a copy of the restraining order and asked that they retrieve her children. The restraining order included the following language:
“IMPORTANT NOTICES FOR RESTRAINED PARTIES AND LAW ENFORCEMENT OFFICIALS.” The preprinted text on the back of the form included the following “WARNING”: “A KNOWING VIOLATION OF A RESTRAINING ORDER IS A CRIME . . . . A VIOLATION WILL ALSO CONSTITUTE CONTEMPT OF COURT. YOU MAY BE ARRESTED WITHOUT NOTICE IF A LAW ENFORCEMENT OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT YOU HAVE KNOWINGLY VIOLATED THIS ORDER.” The preprinted text on the back of the form also included a
“NOTICE TO LAW ENFORCEMENT OFFICIALS,”
which read in part:
“YOU SHALL USE EVERY REASONABLE MEANS TO ENFORCE THIS RESTRAINING ORDER. YOU SHALL ARREST, OR, IF AN ARREST WOULD BE IMPRACTICAL UNDER THE CIRCUMSTANCES, SEEK A WARRANT FOR THE ARREST OF THE RESTRAINED PERSON WHEN YOU HAVE INFORMATION AMOUNTING TO PROBABLE CAUSE THAT THE RESTRAINED PERSON HAS VIOLATED OR ATTEMPTED TO VIOLATE ANY PROVISION OF THIS ORDER AND THE RESTRAINED PERSON HAS BEEN PROPERLY SERVED WITH A COPY OF THIS ORDER OR HAS RECEIVED ACTUAL NOTICE OF THE EXISTENCE OF THIS ORDER.”
The officers refused to enforce the order, telling Ms. Gonzales that there was nothing they could do and that she should call the police again at 10PM if the children had not been returned. At approximately 8:30PM, Ms. Gonzales spoke to her ex-husband and learned that he and the children were at a local amusement park. Ms. Gonzales called the police with the location of her children and asked again that the order be enforced. The officer refused and told her to call back at 10PM. At 10PM, Ms. Gonzales was instructed by police to wait until midnight. At midnight she called again and went to her ex-husband’s apartment. She was told to wait there for an officer to arrive. When no officer arrived, Ms. Gonzales went to the police department and filed a report. The officer on duty made no efforts to assist Ms. Gonzales and went to dinner. At 3:20AM, Simon Gonzales arrived at the police station. He fired a gun at the police station and was killed in an exchange with officers. After his death, police found the bodies of the three murdered children in his truck. Ms. Gonzales sued the town of Castle Rock for failure to enforce the restraining order. The district court dismissed the matter. On appeal, The 10th Circuit Court of Appeals reversed the district court’s dismissal and held that Ms. Gonzales had a claim of a violation of her procedural due process rights and that the case should be decided on the merits. The Court of Appeals held that the Colorado law under which the restraining order was issued mandated police enforcement and that Ms. Gonzales had a protected property interest in the enforcement of her restraining order. The town appealed to the United States Supreme Court. The United States Supreme Court found that Ms. Gonzales’ claim failed on two counts. First that, although the restraining order conferred a benefit on Ms. Gonzales, not all benefits are property interests. In order to have a property interest in a benefit, a person must have a legitimate claim to enforcement of it. The Court of Appeals had found that the “Colorado Legislature [had a] clear intent ‘to alter the fact that the police were not enforcing domestic abuse retraining orders,’ and thus [intended] ‘that the recipient of a domestic abuse restraining order have an entitlement to its enforcement.’” 545 U.S. ____ (2005). Despite a history of deferring to courts in the state when interpreting state law, the Supreme Court overruled the Court of Appeals and found that there was no entitlement to enforcement. The Supreme Court found that although the statute set forth a mandatory arrest policy, the provision did not truly make enforcement of the restraining orders mandatory. The Court noted that “[a] well established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.” 545 U.S. ____ (2005). Secondly, the Court held that even if Colorado law created an entitlement to enforcement, Ms. Gonzales would still not have had a property interest. The Court found that the right to enforcement is not a property right under the Due Process Clause of the Constitution because it does not have an ascertainable monetary value. The Court found that monetary value is a required element of an enforceable property right. Justice Stevens, writing for the dissent, argued that the restraining order did grant Ms Gonzales an “entitlement to mandatory individual protection by the local police force” and that the entitlement qualified as an enforceable property right. Justice Stevens compared a court ordered restraining order to a contract with a private security firm. Had Ms. Gonzales contracted with a private firm for personal security she would have had a clear property interest. Justice Stevens found that the Court gave “short shrift to the unique case of ‘mandatory arrest’ statutes in the domestic violence context.” Justice Stevens addressed the issue that mandatory arrest policies and restraining orders in domestic violence cases have been a part of a national movement on addressing domestic violence and on countering “the perception by police departments and police officers that domestic violence was a private, ‘family’ matter and that arrest was to be used as a last resort.” “The purpose of these statutes was precisely to ‘counter police resistance to arrests in domestic violence cases by removing or restricting police officer discretion; mandatory arrest policies would increase police response and reduce batterer recidivism.’” Justice Stevens argued that even if the mandatory language in the restraining order left the police some discretion on how to proceed, “the police were required to provide enforcement; they lacked the discretion to do nothing.” The Court did not address the issue in terms of international standards or the Government’s obligations under international law, despite having received an amici brief on the issue. The Court did not make any attempt to reconcile its ruling with the fact that the United States has signed and ratified the International Covenant on Civil and Political rights which provides that victims of Human Rights violations, including domestic violence, have the right to have effective and adequate remedy determined and to enforcement of any remedy granted. The Court’s decision was met by disappointment by domestic violence advocates. "Jessica Gonzales did everything right. She divorced her violent ex-husband. She recognized the threat and sought help from courts and police. When her children were in danger, she begged for help, even going to the police station to plead her case. But the police let her down and her three daughters died as a result. This is a sad day and a giant step backward for a nation that had been making progress in stopping domestic violence and helping victims," said Esta Soler, Family Violence Prevention Fund President. Ms Gonzales also expressed disappointment in the Court’s ruling and stated: "I will continue to raise awareness around this issue so that my daughters will not have died in vain. We need to put pressure on our elected officials to pass laws that offer real protection to women and their families." Justice Scalia, writing for the Court, indicated that although Federal law did not create liability for failure to enforce restraining orders, states are free to do so in their own statutory schemes. "The Supreme Court’s ruling makes it clear that state legislatures must take the lead in protecting victims of domestic violence and pass laws that will hold police accountable for taking protection orders seriously," said Lenora Lapidus, Director of the ACLU Women’s Rights Project. Montana and Tennessee are two examples of states that hold police accountable. In Montana, the state Supreme Court has found that state laws enacted to protect victims of domestic violence create a special duty of police officers to enforce the laws or be liable for failure to do so. Massee v. Thompson, 90 P.3d 394, 403 (Mont. 2004) In Tennessee, the state Supreme Court has found that an order for protection creates a special duty of police officers to enforce the order. The Court found that if an officer negligently fails to enforce an order for protection and the victim suffers personal or property damage the officer, the police department and the local government are subject to liability. Matthews v. Pickett County, 01S01-9801-FD-00005 (Tenn. 1999). In light of the Court’s ruling, mandatory arrest language is not enough to hold police officers liable for enforcement. As laws providing orders for protection for victims of domestic violence are drafted or amended, provisions explicitly creating a special duty of enforcement and liability for failure to enforce will need to be included. Compiled From: Town of Castle Rock v. Gonzales 545 U.S. ______ (2005); Civil Liberties Group Calls on States to Take Lead in Protecting Victims of Domestic Violence ACLU (27 June 2005) Gonzales Ruling a “Serious Blow” to Victims of Violence Who Need Police Protection Family Violence Prevention Fund (27 June 2005); Massee v. Thompson, 90 P.3d 394 (Mont. 2004); Matthews v. Pickett County No. 01S01-9801-FD-00005 (Tenn. 1999).
VAW Activism Sets the Stage for Legal Change in Conformance with Women's Human Rights
The wisdom of the 1970’s phrase, “the personal is political” came alive for me at the 1993 world conference on human rights in Vienna, Austria when I was a member of the U.S. delegation to that conference. Virtually every country represented at that conference included a section abhoring violence against women in their introductory statements at the conference. This was a major breakthrough. Women’s voices were heard. Human rights policy changed. After the 1985 world conference on women victims and observers of violence against women began banding together and speaking out in many countries. Ordinary women in villages, cities and rural areas began saying to themselves and to each other: “Enough. This is not right. I will speak out.” They went public with their stories and politicians at local and national levels listened. I had not realized the power of these stories even though I headed an international women’s human rights organization and had been in politics for years. Personal stories became the basis for political action. At the parallel non-governmental conference in 1993, which focused on violence against women, I also watched government delegates stroll the hallways of the NGO event held on a floor below the UN meeting. Standing before one of the TV monitors that was broadcasting women’s stories, a distinguished delegate expressed astonishment that such violence could be perpetrated and tolerated. Why did it take the stories of individual women in countries around the globe to convince this man and the governments represented at the conference that human rights applied to women? The answer is that historically human rights organizations limited themselves to the public sphere, concentrating on the egregious actions of repressive governments against their citizens. They considered the private sphere—the male-headed family—sacrosanct, beyond their purview. The common wisdom was that domestic violence was a family matter into which the public should not intrude. Police forces worldwide also held this private sphere view. Another common belief was that wars were between armies who abided by internationally accepted rules of war. Rape in wartime got little attention until the Bosnian war later in the 1990s. Worldwide activism on violence against women made 1993 a turning point in human rights history. The Vienna Declaration adopted by this United Nations world conference, proclaimed: “The human rights of women and the girl-child are an inalienable, integral and indivisible part of universal human rights. The full and equal participation of women in the political, civil, economic, social and cultural life at …(all)…levels and the eradication of all forms of discrimination on grounds of sex are priority objectives of the international community. Gender based violence and all forms of sexual harassment and exploitation, including those resulting from cultural prejudice and international trafficking are incompatible with the dignity and worth of the human person, and must be eliminated. This can be achieved by legal measures and through national action and international cooperation…” Since then the women’s program of The Advocates has been a leader in helping national groups assess the violence against women problem and devise legal strategies to protect women and give them recourse when they are victims of violence. Also, after 1993. the media, which previously had ignored the violence against women problem, began giving it attention. The 1995 world women’s conference in Beijing, China, resonated with the slogan: “women’s rights are human rights.” Women individually and women’s groups in many countries are becoming more aggressive in tackling the problem. But there is still much more to be done. Thousands of years of history are behind the “cultural prejudice” referred to in the Vienna Declaration. Fundamentalists, using religion for political purposes, have been in ascendance in democratic and non-democratic countries in recent years. In the name of family and security they seek to keep women in subservient positions, legally and culturally. This makes women more vulnerable to violence, especially when the traditional, male-headed family legal structure is reinforced and women have fewer economic and political resources. A two-track strategy is necessary to overcome the violence against women problem. The first is continuing making the personal political by publicizing individual and group manifestations of violence and organizing to combat it. This provides the impetus for legal and cultural change which is the second, longer-term strategy. Not only must every country and community have laws providing women victims recourse, the provisions of CEDAW, the Convention on the Elimination of All Forms of Discrimination Against Women, the women’s human rights treaty now ratified by almost 200 countries, must be written into law. In implementing CEDAW four articles in that treaty are of paramount importance. These are the articles on equality before the law, marriage and family law and those on education and employment. The first two articles concerning legal equality, were the most contentious when CEDAW was being drafted and adopted by the United Nations. Lack of legal equality means recourse when violence occurs is more difficult. Legal subordination gives the violence prone cultural validity. Where women are considered legal subordinates in marriage, violence to enforce that subordination is more frequent and often culturally tolerated. Where marriage is women’s most secure source of economic and social stability then equal legal rights in marriage and family law is essential. Educating girls for work outside the household is also essential. Long term, education and equal access to employment empowers women, making them less prone to sexual slavery, to accepting violence as a cultural norm and more likely to seek recourse when violence occurs. The success of the violence against women campaigns in changing human rights policy is the foundation for legal changes in conformance with the new human rights standards. Continuing activism is required to bring about the legal changes. Arvonne Fraser is a senior fellow emerita, Hubert H. Humphrey Institute of Public Affairs, University of Minnesota, and a founder of the International Women’s Rights Action Watch (IWRAW).
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