Introduction

The Moldovan Draft Law on Prevention and Combating Domestic Violence (hereinafter the ‘Draft Law’) is an important step in Moldova’s effort to address domestic violence.  The Draft Law envisions increased protections and remedies for victims of domestic violence. However, the law could be improved to more clearly reflect the most important reasons for government intervention in domestic violence cases -- to ensure victims’ safety and abusers’ accountability for violent crimes.  General observations are provided below, followed by article-specific comments. 

The Draft Law should more clearly reflect the primary purpose of any government intervention in domestic violence cases – to ensure the safety of the victim and the accountability of the offender.  The Draft Law needs more specific directions to government agencies.  The Draft Law focuses heavily on perceived psychological aspects of domestic violence.  This is a problematic approach.  Psychological rehabilitation is rarely the most urgent need of a domestic violence victim.  Rather, laws should focus on ensuring victim safety and offender accountability for violent crimes.   Similarly, with regard to perpetrators of domestic violence, the focus of the law should be on holding him accountable for his crimes and changing his violent behavior. 

Chapter III is a critically important part of the Draft Law.  It should be expanded significantly to include detailed directives to law enforcement and the judiciary.  These directives should outline specific steps to be taken by law enforcement and the judiciary in issuing and enforcing measures to protect victims from violence.  The Draft Law should provide that courts are the only competent authority to issue protective measures.   The Draft Law should include specific language on how victims can apply for protective measures, where they can apply, the courts’ obligations to conduct a hearing on the application for protective measures, what specific protective measures the courts can impose and law enforcement’s duty to enforce protective measures.

The Draft Law should include explicit criminal sanctions for violation of protective measures issued by courts pursuant to Draft Law, Article 20.

The Advocates for Human Rights urges drafters of this law to work closely with individuals and groups who provide direct service to domestic violence victims.  These individuals and groups have the most accurate information about how government agencies can best promote victim safety and offender accountability through laws and their enforcement.

Chapter I

Article 1

The Draft Law’s objectives should focus on the protection of victims of domestic abuse and the accountability of the offenders, rather than the protection and consolidation of the family.  A focus on preserving the family may prioritize family unity over victim safety and minimizes offender accountability.  Article 1 should state that the object of the law is to provide a legal remedy for victims of domestic violence.

Article 2

Article 2 is too specific in its definition of domestic violence. Listing specific forms of violence may result in some form of abusive or violent behavior that is not on the list being excluded from sanctions.

Article 2 should state that violent acts result in “harm” not abuse. Under “Physical Abuse,” “choking” should be changed to “strangulation.”  The definition of “choking” is  difficulty in breathing due to an obstruction of the larynx or trachea, such as food.  The definition of “strangulation” is “to kill by squeezing the throat to cut off air or suffocate.”

Article 3

The provision “individuals united through marriage” is too narrow.  It should include unmarried partners who are living together, dating, or have a child in common. 

Article 5

The “basic principles of prevention and combating domestic violence” should include protecting the rights and safety of the victim.    

Article 6

“Unions not registered with the registry office” should be defined. 

Chapter II

Article 7

“Competent authorities for prevention and combating domestic violence” should include advocates or other non-profit service agencies that work directly with victims and can best represent their interests. 

Article 8

Art. 8(b) is an important provision in that it requires state authorities to collaborate with NGOs and others and to offer them the necessary support. 

Article 9

The language of Article 9 is vague.  The obligations and authority of the court should be outlined in specific detail in the Draft Law.

Article 10

Generally Article 10 envisions too much intervention by the state.  Article 10 (a) is vague and difficult to apply in its requirement that government authorities must identify people who are “pre-disposed to commit acts of domestic violence.”  This directive risks diverting needed government resources from the priority goal of holding violent offenders accountable and promoting victim safety. 

Article 10 also presents the risk that a domestic violence victim will be further victimized by the state by having her children taken away from her.  Art. 10(b) states that internal affairs authorities are to “…in the case of minors, report to competent authorities (Sections of social assistance and family protection, education divisions, health care divisions, etc.).”  This may unfairly penalize a victim of domestic violence and may also not be in the best interests of the child. 

Art. 10(e), which requires internal affairs authorities to visit families “whose members are registered in relation to domestic violence, and organize prophylactic measures to prevent repeated acts of violence”, is vague and fails to specify what prophylactic measures are envisioned.   

Art. 10(h), which refers to the victim and perpetrator as “conflicting parties”, assumes that both parties are equally at fault.  It also diminishes offender accountability for violent behavior. 

Article 10(j) refers to “psychological rehabilitation” of offenders.  Rather, treatment of offenders should focus on changing their attitudes and behavior. 

Art. 10(k) states that the authorities are to “isolate the victim from the aggressor.”  The article should clarify that it is violent offenders who must be removed from the home and ordered to stay away from the victim. 

Article 11

Art. 11(b) should ensure that victims are included in any decision to “place the victim in the Centre.”  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 separation from violent offenders.  Research shows that one of the most dangerous times for many women is when they separate from their abusers.  A 2003 study described by the Family Violence Prevention Fund, a non-profit agency in the United States, confirmed, “[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.” 

Art. 11(c) envisions psychological and psycho-social counseling for victims of domestic violence.  While resources and services for victims are an important goal, drafters of the law should consider the possibility that this provision risks diverting needed government resources from the primary goal of victim safety and offender accountability to the misguided goal of `fixing the victim.’

Article 13

Art. 13(d) presents the risk that a victim of domestic violence will be further victimized by government officials who make decisions without the victim’s input or consent.

Article 15

Article 15 contains important provisions regarding resources and safety for victims of domestic violence.  However, the focus on “psycho-social rehabilitation centers” reflects an assumption that the victim needs to change her behavior in some way.  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 length of time victims can stay in a safe house or shelter should not be limited to three months.

Art. 15(2) states that the government “shall determine the way of operation of these institutions.”  A more efficient and effective approach would be for the government to  provide funding to non-profit agencies that work with victims, best know victims’ needs and can most effectively represent their interests. 

Chapter III

Chapter III is the most important section of the Draft Law.  It envisions an immediate remedy for domestic violence victims through protective measures issues by a Court.  However, much more detail is needed to clarify the exact obligations and authority of law enforcement and the Courts.

Articles 16 and 17

By authorizing third parties to report and take action in cases of domestic violence, independent of victims’ wishes, Articles 16 and 17 may compromise domestic violence victims’ interests and safety.   Such provisions also risk abuse of the process by third parties whose motivations are not in the victim’s best interests or the best interests of her children.  A primary goal of government intervention in cases of domestic violence should be to respond to the needs of victims.  Thus, wherever possible, the adult victim’s wishes and needs should be paramount.  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 the decision to apply for protection measures. 

Article 18

Article 18 should provide that claims should be submitted only to the Court.  Drafters of the law should also consider the role of the police and outline it specifically in this provision.

Article 19

Article 19 should include specific detailed procedures to be followed in cases of domestic violence where courts are authorized to order that protective measures be implemented.

Article 20

Article 20 should be expanded and enhanced as discussed above in the Introduction.  

The “temporary visiting scheme” envisioned in Art. 20(1)(b) for minors should not be allowed until the abuser has demonstrated a change in his behavior.  The safety of the victim and children is paramount.  A violent offender should be required to earn the right to “visit the minor.”  The devastating effects on children who witness domestic violence should be reflected in the Draft Law.

Art. 20(1)(c) should ban the perpetrator from appearing at the residence of the victim.

Only the court, upon application of the victim, should have the authority to revoke orders containing protective measures.

Article 21

There should be greater involvement of non-governmental organizations and advocates who have experience and expertise in domestic violence issues.  A better approach is for the state to provide funding to organizations that provide services or shelters to victims of domestic violence. 

Article 22

Article 22 should specifically state that violation of the protective measures issued by a court is a crime.  Sanctions and penalties for such violation should increase upon repeated violations of protective measures.