MODEL LEGISLATION
Contents:
The United Nations
The United States
Model State Domestic Violence Code
The United Nations
In 1996, the United Nations Special Rapporteur on Violence Against
Women, Radhika Coomaraswamy issued a report, Further
Promotion and Encouragement of Human Rights and Fundamental Freedoms, Report of the Special Rapporteur on violence against women,
its causes
and consequences, Ms. Radhika Coomaraswamy, submitted in accordance
with Commission on Human Rights resolution 1995/85 (United Nations
E/CN.4/1996/53), 6 February 1996. This report included, as an Addendum
to the report (E/CN.4/1996/53/Add.2), a framework
for model legislation on domestic violence.
In her report, Ms. Coomaraswamy stated the purpose of the model law: “The
objective of this model legislation is to serve as a drafting guide
to legislatures and organizations committed to lobbying their legislatures
for comprehensive legislation on domestic violence.” The model
legislation includes a definition of domestic violence, a declaration
of purpose and both civil and criminal provisions. It includes requirements
for police officers, judges and prosecutors. Importantly, the legislation
highlights the importance of victim safety throughout criminal and
civil proceedings. Under the Declaration of Purpose, the model law
stresses that all domestic violence legislation should “[a]ssure
victims of domestic violence the maximum protection in cases ranging
from physical and sexual to psychological violence.” The model
legislation directs that upon responding to a report of domestic violence,
police officers “shall take all reasonable steps to ensure that
the victim and her dependents are safe.” The legislation contains
provisions for ensuring safety during criminal proceedings. It states, “during
the trial phase, the defendant accused of domestic violence shall have
no unsupervised contact with the plaintiff.”
The model legislation includes provisions on protection orders and
ex parte restraining orders. The legislation provides that “[w]here
a situation of grave danger exists to the life, health and wellbeing
of the victim an she is unlikely to be safe until a court order is
issued, the victim/plaintiff a relative or welfare worker may apply
to a judge or magistrate on duty to provide emergency relief, such
as an ex parte temporary restraining order to be issue against the
abuser within 24 hours of violence occurring.”
The model legislation emphasizes the importance of developing written
procedures for officials prosecuting crimes of domestic violence and,
in Section V, directs the State prosecuting attorney or attorney-general
to put such procedures into effect.
The model legislation recognizes that domestic violence cannot be
effectively addressed solely in the legal system. In Section VII, the
model legislation directs States to provide emergency and long term
services to domestic violence victims and to train legal professionals
and social service providers in the complicated dynamics of domestic
violence.
The United States
Model State Code
In 1994, the National Council of Juvenile and Family Court Judges
published a Model
Code on Domestic and Family Violence.
The code was not designed as a uniform code but rather one that should
be adapted from state to state. The code was developed with an advisory
committee composed of leaders in the domestic violence field from all
over the United States including judges, prosecutors, defense attorneys,
matrimonial lawyers, battered women’s advocates, medical and
health care professionals, law enforcement personnel, educators and
others. As the Introduction to the code states: “Family violence
is a wrong that needs righting in every state in this country. The
key is community commitment to recognize, address and prevent such
violence. Effective and enabling legislation is the cornerstone.”
The 50-page code includes five chapters, General Provisions, Criminal
Penalties and Procedures, Civil Orders for Protection, Family and Children
and Prevention and Treatment. Each provision includes commentary as
well as sample language. As the American
Bar Association Commission on Domestic Violence
explains, the Model Code: