7. Legal System Responses

Early in the global movement to end domestic violence, advocates recognized the law and legal enforcement mechanisms as critical components of the effort to keep women safe and hold offenders accountable for violent behavior. In the past three decades, law reform and the changing of the attitudes of legal professionals has been a major focus of domestic violence advocacy. From R. Emerson Dobash & Russel P. Dobash, Women, Violence and Social Change 174-75 (1992). It is important to note here that the most effective way to implement legal reform is to do so within the context of a coordinated community response. That is, legal professionals should communicate and cooperate with each other and other members of the community including medical professionals, housing agencies, social service agencies and domestic violence advocates. This has proven to be the most effective way to promote victim safety and offender accountability.

Criminal Law

Virtually all countries in the CEE/CIS criminalize assault. However, consistent with other regions in the world, few legal systems expressly recognize domestic violence as criminal conduct. When used, existing criminal and administrative laws that prohibit intentional injury often result in negative consequences for victims of domestic violence. For example, women frequently seek to withdraw their complaints or ask for leniency when they learn that their abuser may be punished by a monetary fine or imprisoned and unable to support the family.

In addition to the failure of the state to assist in prosecution, the courts often fail to assess proper penalties. Legal professionals in countries around the region have expressed reluctance to “harm” family relations by sentencing a batterer to serve jail time. Often, men receive only a suspended sentence or a fine after a conviction for domestic assault. In the case of a fine, women are generally responsible for ensuring that the fine is paid because of their relationships to the perpetrators. From MAHR, Domestic Violence in Armenia 3 (2000); MAHR, Domestic Violence in Uzbekistan 25 (2000).

In the past thirty years, advocates around the world have had many successes in their efforts to change both criminal justice laws to better protect victims and hold offenders accountable. Additional discussion of laws related to domestic violence is provided below and at the Law and Policy section of this website.

Police

Throughout the CEE/CIS region, police are often the first members of the law enforcement system who victims of domestic violence encounter. Many police in the region, however, receive little or no training on how work with such victims. As a result, police frequently do not respond to cases of domestic violence, rarely remove abusers from the home and typically try to discourage and dissuade women from making formal complaints. Many of the reports on domestic violence in CEE/CIS produced by Minnesota Advocates for Human Rights, as well as the International Helsinki Federation for Human Rights’s report, Women 2000: An Investigation into the Status of Women’s Rights in Central and South-Eastern Europe and the Newly Independent States (2000), discuss police response to domestic violence. In part due to societal attitudes about domestic violence and in part related to budgetary constraints, police officers often treat domestic violence cases as “unimportant,” not worthy of police attention, and best resolved within the family. Police inefficiency and apathy also contributes to women’s inability to prosecute their cases on their own. Police may refuse to cooperate when asked to give testimony in court.

These problems with police are not unique to the CEE/CIS region. Tracing and comparing the progress of the battered women’s movement in Britain and the United States, Dobash and Dobash identified the attitude and conduct of police as one of the most difficult hurdles to overcome. From R. Emerson Dobash & Russel P. Dobash, Women, Violence and Social Change 121 (1992).

In many countries in CEE/CIS, people who provide services to battered women identify police and military officers as perpetrators of violence. Women in Macedonia reported that they do not call the police because they fear experiencing harassment or brutality from them. From MAHR, Domestic Violence in Macedonia 17 (1998). Many pointed out that when perpetrators have a connection to the police, the police are even less likely to respond to a call for intervention. Sources in the region also identify corruption, lack of funding for police and society’s general mistrust of police as factors in police inability to effectively protect victims of domestic violence.

Globally, there have been many reform efforts targeted at the law enforcement response to domestic violence. The goals of any reform effort aimed at police response should be increased victim safety and offender accountability. It should be noted that the success of any strategy is highly dependent on a variety of social dynamics unique to each country. As mentioned above, it is very important that strategies for improving the police response to domestic violence be implemented within the context of a coordinated community response.

Forensic Medical System

Domestic violence victims seeking access to court systems worldwide are finding that one of the most difficult hurdles to overcome lies in a procedural or evidentiary requirement common to many legal systems—the medical legal certificate issued by government institutes of forensic medicine. In many countries, battered women are required to obtain this certificate documenting their injuries before they can proceed in court.

In the CEE/CIS region, access to court systems either requires or heavily depends on formal forensic medical certificates to prove domestic violence. Generally, according to this system, forensic doctors examine a woman and document her injuries with a certificate. The certificate indicates the seriousness of the injury and the category of assault violated by the injury. From Cheryl Thomas, Domestic Violence, in 1 Women and International Human Rights Law 219, 225 (Kelly D. Askin & Dorean M. Koenig eds., 1999).

Research reveals many problems with the forensic medical system as it currently exists. The categories of assault do not always provide an accurate description of the level of injury. For example, forensic reports do not consider the impact of repeated injuries over a period of time, the appropriate measure of psychological injury, or the possibility that the severity of the injury may not be fully recognizable at the time of the examination. In addition, few forensic doctors receive any training on how work with domestic violence victims. Some go beyond documenting the injury and inquire into the circumstances of the injury. The doctors will use their personal notion of fairness and take into account mitigating circumstances when filling out the certificates. In some cases, forensic doctors may determine that a woman provoked an attack and grade her injuries at a lower level. As a result, the case is essentially adjudicated by medical rather than legal professionals and a woman may be precluded from state prosecution of her claim.

For example, in a case in Romania, a forensic certificate graded the injuries at a level requiring fourteen days to heal, despite the fact that the injuries the woman sustained included a broken leg. When asked about the file, the judge explained that the doctor’s evaluation “may be affected by what he or she views as mitigating circumstances, such as the victim’s state of intoxication, whether the doctor feels the abuse was provoked, self-defense, etc.” The consequence of grading the injury at a lower level in this case was that the woman was left to prosecute her case on her own without the assistance of the state. From MAHR, Lifting the Last Curtain: A Report on Domestic Violence in Romania 12 n.41 (1995). In some countries such as Moldova, Ukraine and Macedonia, the certificates can cost women the equivalent of a month’s salary.

In Poland, several forensic doctors expressed extreme skepticism of women victims of violence. They said that they viewed their first responsibility as determining whether the injuries could have been caused in the manner the victim described. They expressed the opinion that a woman would lie to achieve an advantage in a court case. Although none of the doctors interviewed in Poland identified cases in which women lied, they universally expressed mistrust of women. From MAHR, Domestic Violence in Poland 36 (2002).

Prosecution

Consistent with the situation in many parts of the world, women in the CEE/CIS region encounter obstacles when they attempt to pursue prosecution of domestic assaults. In spite of strongly worded laws prohibiting assault in some countries, prosecutors are often reluctant to enforce these laws in domestic violence cases. Prosecutors may also believe the same myths and stereotypes that absolve the perpetrator of personal responsibility for his actions

Prosecutorial failure to pursue domestic violence offenses many be grounded in the language of the law. For example, Article 161 of the Bulgarian Criminal Code distinguishes between an assaults by strangers and by relatives in the case of medium-level injuries. From MAHR, Domestic Violence in Bulgaria 6 (1996). Those injured by a relative are not entitled to involvement by the state prosecutor’s office. They may prosecute their cases but must do so alone; they must locate and call their own witnesses and present their own evidence in court. Advocates in Bulgaria have undertake efforts to change these laws.

The opinion among prosecutors that domestic violence victims have no place seeking criminal sanctions against their batterers prevails in many parts of the CEE/CIS region. In Albania, for example, where procedure dictates that a woman bring her case to the prosecutor if she seeks criminal sanctions, it is standard policy for the prosecutor to try to convince her to drop the case. From MAHR, Domestic Violence in Albania 16 (1996). In Poland, though the law allows for a prosecutor to proceed without the participation of the victim, one battered woman reported that the prosecutor’s response to her request for assistance was: “Unless they took you out in a plastic bag, the public prosecutors’ office would not be interested.” From Cheryl Thomas, Domestic Violence, in 1 Women and International Human Rights Law 219, 228, 254 (Kelly D. Askin & Dorean M. Koenig eds., 1999).

Globally, there have been many efforts aimed at improving prosecutors’ response to domestic violence. One such initiative is the promotion of policies that allow prosecutors to press charges against defendants without the consent or even involvement of the victim. Within any strategy, the three goals of prosecution should be: (1) to protect the victim, (2) to deter the defendant from further violent acts by holding him accountable for his actions, and (3) to communicate to the community that domestic violence will not be tolerated. Training for prosecutors on these issues is an important part of an effective intervention strategy.

Judicial Responses

Like prosecutors and police officers, judges play important roles in the legal system’s response to domestic violence. Because they are generally the final authority in civil and criminal matters involving domestic abuse, judges hold substantial power to sanction batterers, protect battered women, and to send messages to the community, the victim, and the batterer alike that domestic violence will not be tolerated.

Although prosecutors in countries in CEE/CIS often have considerable control over the initiation and course of criminal proceedings, to the extent judges are able to make choices regarding sentencing or other aspects of the criminal trial, these choices may be influenced by myths about domestic violence. If, for example, judges believe that alcoholism causes domestic violence, for example, they may only require batterers to attend alcohol treatment programs. Judges may not understand that battered women are most vulnerable when they attempt to leave a relationship and therefore may fail to take steps to ensure that women are protected inside and outside of the courtroom.

Judicial responses to domestic violence can, however, further victim safety and batterer accountability in many ways. In the courtroom, judges are enforcers and interpreters of existing laws; they may also have the ability to establish courtroom policies and procedures that promote victim safety and are respectful of all parties. Outside of the courtroom, judges are often community leaders, and can play vital roles in the effort to eliminate domestic violence.

Advocates can work to improve judicial responses to domestic violence in a number of ways. Court monitoring, for example, helps to systematically identify needed improvement in judicial responses and also increase the visibility of these issues; the presence of monitors in courtrooms can itself cause judges to improve their handling of domestic violence cases. Trainings for judges can provide judges with the information they need to better address the needs of battered women and ensure batterer accountability. Finally, dedicated courts and court processes can also help ensure batterer accountability and victim protection by streamlining navigation of the court system, increasing victims’ access to resources, and ensuring a greater expertise of the judges and other personnel addressing these issues.