Modern Perspectives on the efficient fight against and punishment of domestic violence

Abstract

The causes of domestic violence are numerous and hard to pinpoint for each case; however, one thing is certain, namely that domestic violence is related to power, domination and control.

The violence within a family is mainly supported by strong beliefs, either learnt or inherited, by ancestral views and even by the misconception that women must obey their husbands unconditionally.

Unfortunately, any types of domestic violence, regardless of the form they are manifested in or how serious they are, have a direct and immediate impact (and, many times, an indirect, mediated impact), such a serious effect on the victim that the aggression itself must be punished without delay and firmly, but without damaging the right to private, family and intimate life, as guaranteed by art. 26 of the Romanian Constitution.

We hereby intend to deal with the controversial questions related to domestic violence, emphasizing the decisive role the public authorities have in this matter, namely from prevention and monitoring to actually fighting this type of violence. Furthermore, we think it would be appropriate to illustrate some techniques and procedures to be used concretely by the investigating bodies during criminal proceedings in order to prevent other harmful effects of domestic violence.

 

Table of Contents:

1. Services and institutions a victim of domestic abuse may turn to

2. Techniques and instruments used to investigate domestic violence during criminal proceedings

2.1 The initial assessment plan

2.2 The measure plan for the victim’s protection includes

2.3 Measures ordered against the perpetrator

 

1. Services and institutions a victim of domestic abuse may turn to

Domestic violence victims have legal rights that guarantee their protection. The procedures of prevention, monitoring and fight against domestic violence will be based on a unitary vision and concept, focusing on:

-     observing the victims’ personality, dignity and personal life,

-     informing them on how to exercise their rights,

-     special protection, appropriate to their circumstances and needs,

-     counselling, rehabilitation and social reintegration services,

-     free healthcare,

-     free legal counselling and assistance according to the laws.

The domestic violence victims that resort to the intervention and support structures have needs which must be rightly assessed.

The exercise of the rights of domestic violence victims is based on the principle of non- discrimination and equal chances and treatment for both men and women.

According to art. 6 of the Directive no. 2011/99/EU, a European protection order may be issued also when the protected person has decided to set their residence or when such person already has their residence in other member states or when the protected person has decided to live or already lives in another member state. Upon issuing such an order, matters such as the duration of living in the country of enforcement and the extent of the need of protection shall be taken into consideration.

The order shall be issued only upon request and by observing the interdictions the directive sets out in art. 5, and the request may be addressed either to the relevant authority of the issuing state or to the relevant authority of the enforcing state. In order to observe the fundamental human rights, it is worth mentioning that, before such a European protection order is issued, the alleged perpetrator shall be granted the right of being heard and the right of contesting the protection measure unless such alleged perpetrator has not been granted such rights during the proceedings preceding the adoption of such protection measure [1].

The general regulating trend in the matter of domestic violence is to extend the scope of the protection  order to  forms of interaction  other  than those  traditionally  accepted  as “family relations”. The state of Texas extended  the definition of domestic  violence to encompass violence occurring in non-formalised relationships – dating violence – by virtue of a law called The Kristy Appleby Act. In this case, the victim was forced at gun point by the ex-wife of her partner to write a suicide note, to ingest about 20 sleep pills with beer and whiskey and to slit her wrists.

This case led to the passing of a legislative act bearing the victim’s name and extending  the scope of a protection order to third parties involved in “love triangles”. In practice, the following have been construed as domestic violence actions: insults, hiding partner’s belongings, throwing house objects, hitting pets, gun threats, cutting partner’s clothes and other belongings, burning one’s partner with cigarettes and cutting them with a knife.

What should a victim do when they are aware that they are under physical, psychological, sexual, emotional, economic or religious abuse by a member of their family?

Family violence is usually cyclical and it does not end by itself. As a rule, “violent outbursts” are followed by a period of reconciliation, when the perpetrator promises that “it will not happen again”, then by other violent acts.

The violent deeds become more frequent and more serious, while the calm periods grow shorter or vanish altogether and the violence cycle continues.

The domestic violence is a criminal offence and any person is protected against threats, physical or any other type of abuse leading to fearing for one’s own life.

A family partner has no right:

-     to control and dominate the activity or decisions of the other spouse

-     to take advantage of a position of trust, authority or influence over the children in the family.

When one of the family members lives under abusive circumstances, their safety and their children’s safety is the absolute priority. If the abuse cannot be contained or ended, certain decisions may be made to protect directly the abused partner as well as the other members of their family [2].

In order to prove an abusive relationship more easily, a victim of domestic violence should:

-     save all the direct or implied threat messages,

-     record all the actions violating in any way a court decision on domestic violence,

-     go to the coroner’s office or any other hospital every time they have suffered physical abuse,

-     identify potential witnesses that witnessed threats or direct or indirect violent acts.

 

2. Techniques and instruments used to investigate domestic violence during criminal proceedings

The most important techniques and instruments used by the criminal investigating authorities in case of domestic violence are:

-     the initial assessment and correct legal classification of domestic violence,

-     a measure plan for victim protection,

-     assistance and counselling,

-     measures ordered against the perpetrator.

 

2.1 The initial assessment plan

This plan is aimed at protecting the victim and it is developed  in cooperation with the services and institutions supporting the victims of domestic abuse and shall be focused on:

-     observing the victim’s dignity and private life,

-     informing the victim on how to exercise their rights.

It is recommended  that a victim’s file be drawn up, which should contain: the victim’s identification data, a short history of the abuse such victim underwent, as well as the consequences of the violent acts.

The primary data regarding the causes of violence are important to determine the partners’ rules and values, as well as to learn whether violence dominated the families the partners come from and whether religious differences were used to justify the aggression. If the family where violence takes place have children and they are also victims of such violence, all protection measures shall take into consideration the children’s paramount interest and careful attention shall be given to mothers separated from their aggressive spouse who try to live a new life with their children [3].

 

2.2 The measure plan for the victim’s protection includes:

-     counselling, rehabilitation and social reintegration services,

-     free healthcare,

-     free legal counselling and assistance in compliance with the law.

This plan is usually implemented with the support of specialized assistants and it is renewed according to the new elements that occur. The counselling and assistance shall be mainly aimed at emotionally supporting the victim so that their physical and psychological abilities are strengthened. The main objective of counselling shall be the victim’s adaptation to the living conditions, the solving of interpersonal conflicts, stress reduction through the needed emotional support.

Should the problems the victim faces are very serious, the following shall be taken into consideration:

i.   the family’s social and financial resources,

ii.  stress elements having a regular impact on the family,

iii. evidence of alcohol abuse and gaming addiction,

iv.  extramarital affairs by either partner.

 

2.3 Measures ordered against the perpetrator

In order to keep track of the sanctions and the total number of deeds having required the perpetrator’s investigation, a perpetrator’s file shall be maintained and that will include at least:

a)  their identification data,

b) a short biography highlighting the violent acts aimed at the victim,

c)  the restraining measures to be taken against the perpetrator; they shall be in accordance with the methods used by the abuser when exercising their power and shall be directed at reducing the effects of violence and at the perpetrator’s reasons of obtaining such results as to make the victim addicted to them.

Protecting domestic violence victims without delay in order to prevent their exposure to aggressive behaviour may require the following measures [4]:

-     the perpetrator’s temporary eviction from the family home, irrespective of whether they have ownership  or not; restricting  the offender’s right to personal life and home is justified by taking into consideration the physically or psychologically aggressive behaviour such offender manifested towards their family members, which has become an immediate danger for them;

-     restricting the offender’s right of using the joint home when such home may be shared so that the perpetrator should have no contact with the victim;

-     forcing the assailant to keep a set minimum distance from the victim, their children or the victim’s other relatives or from the home, workplace or school of the protected person; such distance shall be expressly set by the judicial bodies, as it is not laid out by law and it shall guarantee the victim’s protection against any immediate danger;

-     the offender’s interdiction to travel to certain locations or areas which the protected person regularly visits;

-     banning all contact to the victim, including via telephone, post mail or other;

-     forbidding the perpetrator to own, carry or use guns;

-     ordering the perpetrator to attend psychological counselling, therapy or ordering control measures, treatment or some types of care, especially to fight addiction. According to the Directive 2011/99/EU of the European Parliament  and Council of 13 December 2011, on the European protection order, “a protection measure” means “a decision in criminal matters passed in the issuing country in accordance with the national laws and procedures, whereby one or more of the interdictions or restrictions mentioned in article 5 are ordered for a dangerous person in order to protect a victim against a criminal act that  could  jeopardise  their  life,  physical  or  psychological  integrity,  their  dignity, personal freedom or sexual integrity” [5].

The interdictions art. 5 of the European document refers to are:

a)  the interdiction of travelling to certain locations or set areas where the protected person resides or which the protected person regularly visits;

b)  an interdiction or control over any contact with the protected person, including via telephone, electronic media or post mail, fax or any other means;

c)  an interdiction or control over the distance to the protected person, which should not be shorter than that previously set.

Protecting the victim of an offence of domestic violence  is required in order to prevent “secondary victimization”, according to art. 20 letter a) of the Directive 2012/29/EU.

On the other hand, protecting a victim may raise issues regarding the principle of equality of arms: the injured party shall be heard by the judicial body having recorded the criminal complaint without delay and, should such hearing not be possible, the party shall be heard after the complaint is filed, with no unjustified delay, as the statement of the injured party under such circumstances is a means of evidence even if it was administered prior to the criminal proceedings.

These provisions are an exception to the rule of starting the criminal proceedings prior to any investigation and to the provisions of art. 97 par. 2 of the Criminal Procedure Code, according to which the evidence shall be obtained during the criminal trial by the means illustrated in the same law [6].

 

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Contribution selected by Filodiritto among those published in the Proceedings “7th SPECTO 2018”

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