The Domestic and Cohabitation Relationships Violence Ordinance superseded the earlier Domestic Violence Ordinance. It extends protections beyond married couples to both opposite-sex and same-sex cohabitants. One type of relief it offers is an injunction from the District Court or the Court of First Instance, which restrains the offender from using violence against the applicant or excludes the offender from the shared home or from other specified area.
Women and Justice: Keywords
The Act’s purpose is to provide means to hinder persons from committing acts of family and domestic or personal violence by imposing restraints on their behavior and activities. Under the section 106B of the Act, restraint orders can be issued against a person who has caused or has threatened to cause injury or damage to another person or property and is likely to do so again or carry out the threat, behaved in a provocative or offensive manner and is likely to do so again, or against a person who has stalked another person. The justice must be satisfied on the balance of probability that the imposed restraints are necessary or desirable to prevent further prohibited behavior. Restraint orders can be issued on an interim or final basis. A person who fails to comply with an order is guilty of an offence and liable to a fine not exceeding ten penalty units or imprisonment not exceeding six months.
The Domestic Violence Prevention Act (the “DVPA”) was established in order to prevent acts of domestic violence and to protect the interests of victims. The DVPA defines domestic violence offenses and the family members who might be implicated, specifies the responsibilities and tasks of the various competent authorities, and governs issues such as civil protection orders, criminal procedure, the interests of any minors involved, protection of and support for victims, and educational and prevention measures. Breaches of the DVPA will result in the imposition of a fine or imprisonment.
The Domestic Violence Act (No. 10 of 2008) seeks to provide survivors of domestic violence with protection. The Act defines domestic violence as "any controlling or abusive behaviour that harms the health or safety of the applicant." The Act empowers Courts including Customary Courts to pass an order (Section 7 of the Act prescribes orders available to applicants such as restraining orders and interim orders) that seeks to immediately protect applicants (victims); Section 9 (2) (b) (i) provides that the order shall direct a member of the Botswana Police to prohibit the respondent (the offender) from committing an act of domestic violence. The Act also outlines the jurisdiction of the courts, describes how an applicant can file an application for an order by the court, details how documents are served to respondents, and explains the nature of proceedings in a domestic violence case.
The Domestic Violence Act (“DVA”), originally enacted in 1996 and amended in 2004, aims to provide protections for women and children domestic violence situations. It gives courts the power to grant protection and occupation orders. Applications for such orders can be brought by the victim or, in the case of a child, a parent, guardian, constable, or social worker can bring an application on the child’s behalf. The DVA sets forth the limitations imposed by protective orders, and it states courts can grant such an order if “it is satisfied that” the individual against whom the order is sought used or threatened to use violence, mental or physical, against the person seeking the order. Even without that showing, the court can grant a protective order if it finds the order necessary for the protection of the person “having regard to all circumstances.” The court can grant protection and occupation orders on an ex parte basis if the court deems it necessary. Punishment for violating an order is a fine not exceeding $10,000 or imprisonment for a maximum of six months, or both.
The DVA protects and provides relief for victims of domestic violence. It defines and prohibits domestic violence in the form of physical, emotional, sexual, and economic abuse as well as acts of abuse derived from any cultural or customary practices that discriminate against or degrade women. Examples include, but are not limited to, forced virginity testing, female genital mutilation, pledging women and girls to appease spirits, forced marriage, child marriage, forced wife inheritance or sexual intercourse between fathers-in-law and newly married daughters-in-law. The penalty for committing an act of domestic violence as defined under section 3 is a fine not exceeding USD 5,000 and/or imprisonment for a period not exceeding ten years. The DVA also imposes duties on the police. Stations must have, where possible, one police officer with domestic violence expertise. Further, a police officer who receives a complaint of domestic violence must advise the complainant about how to obtain shelter or medical treatment and about their right to seek relief under the DVA. The DVA also requires that complaints made to police officers should be taken by officers of the same sex as the complainant, if complainant so requests. Moreover, police officers have the authority to arrest a person suspected of committing an act of domestic violence without a warrant and bring that person before a magistrate within 48 hours. Finally, the DVA provides for protection and relief to survivors of domestic violence by enabling them to apply for a protection order when an act of domestic violence has been committed, is being committed, or is threatened. It also allows someone acting with the consent of the complainant to make an application for a protection order on his or her behalf with the leave of the court. A person who fails to comply with a protection order is guilty of an offense and liable for a fine not exceeding USD 200 and/or imprisonment for up to five years.
This statute provides for Protection From Abuse Orders (“PFA Orders”). These PFA Orders act as a safeguard to victims and their children from a family/household member who is abusing them. The Protection from Abuse Act also provides for absolute confidentiality between a victim and a domestic violence counselor/advocate to encourage open and honest dialogue.
In 2015, Alabama amended its gun legislation to prohibit anyone who has been convicted of a misdemeanor offense of domestic violence or is subject to a domestic abuse protective order from possessing a firearm. The amended statute provides: “No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence, misdemeanor offense of domestic violence, violence offense as listed in Section 12-25-32(14), anyone who is subject to a valid protection order for domestic abuse, or anyone of unsound mind shall own a firearm or have one in his or her possession or under his or her control.”
Belize enacted the Domestic Violence Act #19 in 2000 to provide greater protection and assistance to domestic violence victims. It was enacted in recognition of the pervasive nature of domestic violence in Belize society in order to increase the resources available to deal with domestic violence cases. The Domestic Violence Act defines domestic violence and governs protective orders, occupation orders, tenancy orders, other orders relating to counselling, the use of furniture and household effects, payment of rent, mortgage, utilities and compensation for any monetary loss due to domestic violence. Where a protective order or interim protective order is violated, the individual violating the order may be liable to a fine of up to $5,000 or to imprisonment for up to six months. (Section 21)
The Domestic and Family Violence Act 2007 (NT) empowers the Magistrates’ Court to issue orders for the protection for victims of domestic violence. A domestic violence order may impose restrictions on the ability of the person whom the order is against to contact, use violence against, damage the property of, threaten, stalk or harass the victim. A domestic violence order may be issued to victims including: a spouse or former spouse of the perpetrator of the violence; a person who is or has been living with the perpetrator; a relative or former relative of the perpetrator; and a person who has or has had an intimate personal relationship with the perpetrator. The domestic violence order may be sought by the victim (if over 15 years old), his/her legal representative, a police or child protection officer, or a court. Knowingly breaching a domestic violence order is a criminal offence, punishable by up to 400 penalty units ($62,000 as of August 2018) or imprisonment for two years. The domestic violence order remains in force for the period stated, but may be revoked earlier by the victim’s consent or a court order.
In a pending divorce case, the trial court entered an order for the parties to “refrain from molesting, harassing, besetting, intimidating and/or threatening and carrying out physical or other abuse of the other.” The wife subsequently accused the husband of sexual molestation and violating the court’s order. The court explained that “an allegation of sexual molestation in any form is very serious and the onus is on the wife to prove to the Court beyond a reasonable doubt that the husband breached the Order by committing the acts of sexual molestation as alleged.” The court held that the “wife has failed to discharge this burden” because: (i) there was no evidence from any corroborating witness; (ii) there was no corroborating evidence from the doctor who examined the wife; (iii) both parties chose not to cross-examine the deponents who swore to the affidavits in the committal application; and (iv) “the husband’s version of the events on 5th March is equally plausible as the wife’s” version of events.
The Court held that it was not empowered to impose measures that guaranteed the physical and psychological integrity of domestic violence victims when other tribunals and bodies established for that purpose were competent. However, plaintiffs have the right to make the requests from the competent courts to take necessary measures in order to enforce its orders, using persuasive or coercive means.
La Corte sostuvo que no estaba facultada para imponer medidas que garantizaran la integridad física y psicológica de las víctimas de violencia doméstica donde otros tribunales y organismos establecidos con ese fin eran competentes. Sin embargo, los demandantes tienen el derecho de hacer las solicitudes de los tribunales competentes para tomar las medidas necesarias para hacer cumplir sus órdenes, utilizando medios persuasivos o coercitivos.
The plaintiff was a police officer with the Humboldt Police Department. While off duty, she ran into an ex-boyfriend against whom she had a protective order. Based on this encounter, she filed a criminal charge against him for violating the order. The chief of police commenced an internal affairs investigation into her charges, and her ex-boyfriend filed a criminal charge against her for filing a false charge. While both charges were pending, the plaintiff informed the chief of police that she was pregnant. Once the internal affairs investigation was completed, the plaintiff’s employment was terminated. She filed suit in the Gibson County Circuit Court for discrimination based on gender and pregnancy in violation of the Tennessee Human Rights Act (“THRA”). The Circuit Court granted summary judgment in favor of her employer, but the Court of Appeals of Tennessee reversed and remanded, finding that the plaintiff had sufficiently alleged that she was treated differently than similarly situated male police officers.
The plaintiff filed a petition for a protective order against the defendant, her ex-boyfriend. The two ended their relationship in 2007, but from 2009 to 2012, the defendant made repeated, unsuccessful attempts to re-establish contact with the plaintiff via e-mail and social media. In 2013, the defendant escalated his attempts, first driving to the plaintiff ’s parents’ home in Canton, Ohio, and approaching her father at 6:20 a.m. to find out where the plaintiff was currently living. The plaintiff’s father told the defendant not to contact the plaintiff anymore and then called 911. The plaintiff became afraid upon learning that the defendant had visited her parents’ home, asking her current boyfriend to stay with her because she was afraid to be home alone. The defendant began repeatedly calling and leaving voice messages for the plaintiff. Within a one-week period, he called her 40 times. On one occasion, the plaintiff ’s boyfriend answered the phone and told the defendant that he had the wrong number and not to call anymore. The defendant also attempted to contact the plaintiff at her work. Then, one day, after placing several calls between 2 and 3 A.M., the defendant showed up at the plaintiff ’s home at 7 A.M. with flowers, and the plaintiff ’s boyfriend called 911 and had him arrested. The issue before the Court was whether these acts satisfied the statutory requirements for a protective order which require an “[a]ct of violence, force, or threat.” The Court held that stalking satisfies the requirements for a protective order even in the absence of physical harm or threatened physical harm. The Court set forth three elements necessary to prove stalking: (1) “the defendant directed his or her conduct toward the victim on at least two occasions”; (2) “intended to cause fear or knew or should have known that his or her conduct would cause fear”; and (3) “the defendant’s conduct caused the victim ‘to experience reasonable fear of death, criminal sexual assault, or bodily injury.’” The Court held that, in this case, these three factors were satisfied and explained, with respect to the third factor, that it was sufficient that the plaintiff said that she “was scared,” because “[a] victim need not specify what particular harm she fears to satisfy the third element of stalking.”
The appellant and respondent are divorced parents of three children. At the time of the divorce, custody of the children was awarded to the respondent. The appellant then moved for an interim protection order, claiming that the respondent physically abused their minor children. A court granted the interim protection order on October 3, 2011, and awarded the appellant interim custody of the children, subject to visitation by the respondent, and ordered respondent to cease abusing the children. The Magistrate’s Court subsequently discharged the interim order on October 24, 2011, based on Section 12 of the Combating of Domestic Violence Act 4 of 2003, reasoning that the beatings were an isolated incident and were only meant to punish the children for bad behavior. The appellant challenged the discharge. The appellate court agreed with appellant and granted a final protection order effective through July 2013, which awarded the appellant custody of the children with visitation for the respondent on alternate weekends and holidays. In its decision, the appellate court stated the importance of rooting out the “evil that is domestic violence in order to give effect to the protection of the constitutional value of human dignity.”
Following an assault by her husband (which was interrupted when he sustained a heart attack and had to be hospitalized), a woman temporarily moved into a small studio above the shop she rented and in which she worked. She brought divorce proceedings shortly after the assault, which resulted in a lower court restraining order on both parties. The husband was to be allowed to stay in the couple’s family house on the theory that this was the best solution financially and because the restraining order would make it impossible for the man to live in the studio in the rented commercial property as the wife worked there on a daily basis. On appeal, the wife requested that she be allowed to live in the family house, while the husband claimed that he should be allowed to stay there given his more limited financial means (a pension allowance). The husband did not deny the violence, but minimized the facts, while the wife claimed that there were already tensions before the assault and that her husband’s heart attack had saved her life. The Court of Appeal held that despite the absence of other witness declarations, the existence of a medical certificate supporting the woman’s claims as to the assault provided sufficient evidence of violence by the husband. The fact that the violence only occurred once did not change this and nor did the outcome of the pending criminal investigation. The Court held that, in accordance with the law of 28 January 2003 on domestic violence, the family home was to be assigned to the victim of such violence as no exceptional circumstances existed here to decide otherwise, despite an alleged imbalance in the financial means of the parties. The request by the wife for a maintenance allowance to cover the husband’s rent was rejected because the husband did not prove that the wife had a higher income and that the divorce proceedings would likely lead to financial compensation by the wife to the husband for the use of the family house.
The applicant, Ms. Kaya, applied to the Office of Public Prosecutor (the “OPP”), claiming that she had been the victim of domestic violence. After investigating, the OPP charged the applicant’s husband with domestic violence and went to trial. However, during the trial, the applicant withdrew her claim and said that the bruises she had submitted as evidence were actually the result of an accident at the couple’s home. The OPP dropped the charges against the applicant’s husband. Two years later, the applicant filed another claim with the OPP alleging that her husband stole her jewellery and again subjected her to domestic violence. The OPP notified the proper Court of First Instance for Family Affairs (the “Court of First Instance”). The Court issued a restraining order against the husband that prevented him from approaching the applicant and ordered that he pay alimony to her for four months. The government offered the applicant state housing for the victims of domestic violence, but she rejected the offer. The applicant was subjected to several more incidents of domestic violence. During that time, the OPP requested the Court of First Instance to issue a warrant for the arrest of the applicant’s husband. The Court of First Instance rejected the OPP’s request. The applicant appealed, but her appeal was dismissed because Ms. Kaya’s statements alone were not adequate evidence of domestic abuse. After Ms. Kaya appealed, the Constitutional Court ruled that Turkey had a duty to take affirmative steps to prevent further acts of domestic violence against the appellant and effectively investigate her claims in this case. However, after applying the legal framework addressing victims of domestic violence, the Constitutional Court ruled that Ms. Kaya’s fundamental rights under the framework had not been infringed. This decision is important because it demonstrates that even though there is a legal framework available for women affected by domestic violence, claims against state officials for failing to act on their duties under that framework need to be specific and supported by substantial evidence.
Mrs. Petlane, the plaintiff, sued her husband, alleging that he abused her regularly and caused her to leave their marital home. The plaintiff sought relief from the physical abuse, custody of the parties’ minor child, spousal support, and child support. The defendant did not allege an inability to provide for his wife and child, but insisted that they live together if he was going to provide that support. First, the High Court found that it had jurisdiction because the parties had a civil marriage rather than a customary marriage, as the defendant claimed. Then the Court held that Mr. Petlane could not compel his wife to return home, which would risk more physical abuse, by refusing to support her financially. Because his abusive behavior drove her out of the marital home, the court ordered Mr. Petlane to make regular spousal and child support payments to Mrs. Petlane.
M.P.B. suffered repeated domestic violence and abuse at the hands of her husband R.A.G. In civil suit, M.P.B. was granted exclusive control of the spousal home and custody of her children. The court imposed a restraining order on R.A.G.; he was unable to go within 300 meters of the family home, his wife’s work, or the 9 and 12 year-old children’s school. This case is fairly punitive toward the father by Argentinean standards. The judge cited both Argentinean statutes and international human rights law in arriving at her decision.
M.P.B. sufrió repetida violencia doméstica y abuso a manos de su esposo R.A.G. En una demanda civil, a M.P.B. se le otorgó el control exclusivo de la casa del cónyuge y la custodia de sus hijos. El tribunal impuso una orden de restricción a R.A.G: no podía ir a menos de 300 metros del hogar familiar, del trabajo de su esposa o de la escuela de niños de 9 y 12 años. Este caso es bastante punitivo hacia el padre para los estándares argentinos. El juez citó tanto los estatutos argentinos como el derecho internacional de los derechos humanos al llegar a su decisión.
Father and Mother were divorced in 2003 and were granted joint custody of their son, Z. In January 2008, Mother sought an order of protection against Father covering her house, her mother’s house, and Z’s school, claiming that Father, a police officer, had committed domestic violence against her, and had intimidated Z to a point where he left a suicide note. After an evidentiary hearing, the family court found sufficient evidence to support an order protecting Mother. The court found, however, evidence was insufficient to cover Z in the order, and thus removed Z’s school from coverage. Father appealed, arguing that the order was wrongly entered because only Mother’s side of the story “had been heard,” to which the court responded that the family court was entitled to resolve conflict in evidence. The court determined that Mother’s account was more convincing, and thus rejected Father’s argument. Father also argued that because of the protective order, he must check his service weapon at the end of every shift and asked for it again at the beginning of every shift. As a result, he could not perform security work in off-duty hours. The court did not consider the argument because Father failed to cite any legal authority in support of a need for him to perform off-duty security work. Finally, Father argued that the protective order would diminish his right to participate decision-making about Z. The court found the argument unconvincing because father was free to reach Mother via e-mail or phone. Accordingly, the court affirmed the family court’s grant of a protective order covering Mother.
Maria Elena Gonzalez (“Gonzalez”) filed for a temporary restraining order against her former partner, Maurelio Francisco Munoz (“Munoz”). She complained that Munoz violently attacked her on numerous occasions including burning her with hot grease, choking and beating her, and abusing her three-year-old daughter Flor. The trial court granted a temporary ex-parte restraining order to keep Munoz from Gonzalez and Flor. The court also issued personal conduct and stay-away orders, and granted physical and legal custody of Flor to Gonzalez with no visitation rights for Munoz. At a subsequent hearing regarding the orders, Gonzalez and Munoz both appeared without counsel and spoke through an interpreter. At the beginning of the hearing, the court told the parties it would make some “temporary orders under certain circumstances regarding custody and visitation” but could not make a paternity judgment. The court advised Gonzalez and Munoz that they would need to file a separate paternity suit to resolve issues related to custody and visitation of Flor. Munoz indicated he was not Flor’s parent but requested “reasonable visitation” on weekends. The court issued a restraining order that excluded Flor and extended for one year the portion of the prior restraining order that kept Munoz away from Gonzalez. But it did not address custody or visitation. Gonzalez then asked the court about child support, an indication she did not understand the discussion about a separate paternity proceeding. In a subsequent hearing a judge granted Munoz weekly supervised visits with Flor despite the abuse allegations. The Court of Appeal reversed the trial court and found it erred and violated Section 6340 of the California’s Domestic Violence Prevention Act (the “Act”) when it failed to issue permanent custody of Flor to Gonzalez. The Act directs the court when applying the Act to “consider whether failure to make any of these orders may jeopardize the safety of the petitioner and the children for whom the custody or visitation orders are sought.” The Court of Appeal noted that, given Flor’s potential exposure to violence from Munoz, the trial court was charged with eliciting evidence about Flor’s parentage and whether the earlier custody and visitation orders needed to be modified or extended to “ensure the mutual safety of Gonzalez and Flor.” Also, because Munoz failed to show or to claim a parent-child relationship with Flor, the trial court should have extended the restraining order to cover Flor and entered the permanent custody order Gonzalez requested. The Court of Appeal admonished bench officers to play a “far more active role in developing the facts,” even at the expense of a particular court’s procedures, to avoid the high potential for danger to the Act’s target population—“largely unrepresented women and their minor children.” It noted the “special burden” on bench officers who “cannot rely on the propria persona litigants to know each of the procedural steps, to raise objections, and to otherwise protect their due process rights.”
The Court held that a policeman could not be sued under 42 U.S.C. 1983 for failing to enforce a restraining order. Jessica Gonzales was granted a restraining order against her husband during their divorce proceedings. In violation of the restraining order, Gonzales's husband took her three children, and despite repeated efforts by Jessica to have the order enforced, the police took no action. During this time, Gonzales's husband killed the couple's three children. The Court reasoned that because Colorado law did not make enforcement of a restraining order mandatory, there was no individual right to its enforcement. This case was admitted before the Inter-American Commission on Human Rights (as Gonzales v. United States) and is awaiting a decision on the merits.
An army officer was convicted for breaching an interdict issued by a magistrate ordering him not to assault his wife or prevent her or their child from leaving their home. He appealed to the Transvaal High Court which declared that Section 3(5) of the Prevention of Family Violence Act was unconstitutional to the extent that it placed the burden on him to disprove his guilt. The Constitutional Court overturned the High Court's judgment, finding that the purpose of an interdict was to protect the victim of domestic violence and indicate that society would not stand by in the face of spousal abuse. As such, fairness to the complainant required that the enquiry proceedings be speedy and dispense with the normal process of charge and plea, but in fairness to the accused, the presumption of innocence would still apply to the summary enquiry.
In 2003, a father murdered his seven-year-old daughter Andrea during a court-approved parental visitation. Ángela González, Andrea’s mother, had previously reported instances of physical abuse to the police on numerous occasions and sought court-ordered restraining orders against him to protect herself and her daughter. The father had refused to accept supervised visitations with his daughter. After killing his daughter, the father committed suicide. The mother brought suit in national court against Spanish authorities. The court ruled against her, deciding in April 2011 that the visit regime was sound and denied the case any constitutional relevance. As a result, the mother brought this complaint to the CEDAW Committee. The Committee found for the mother, stating that in deciding the parental visitation scheme the Spanish authorities should have taken into account the existing context of domestic violence in the family. Instead, the Spanish authorities had made a routine decision that this type of visitation scheme was appropriate without taking the specific facts of this case into consideration. The Committee held that the Spanish authorities thereby failed to take the best interest of the child into account. The Committee has repeatedly found that a State can be held responsible for acts of individuals if it fails to exercise necessary diligence in order to prevent violations of the CEDAW Convention. Specifically, Spain had violated articles 2 a), d), e) and f), 5 a) and 16 paragraph 1 of CEDAW. Additionally, CEDAW ruled that Spain must provide training to judges and other professionals to avoid similar failures in the future. Spain has since stated that it will introduce new mechanisms to protect children in gender violence cases, such as requiring judges to act with precaution in their decision-making.
En 2003, un padre asesinó a su hija Andrea, de siete años, durante una visita de padres aprobada por el tribunal. Ángela González, la madre de Andrea, había denunciado previamente casos de abuso físico a la policía en numerosas ocasiones y había solicitado órdenes de restricción ordenadas por el tribunal para protegerse a ella y a su hija. El padre se había negado a aceptar visitas supervisadas con su hija. Después de matar a su hija, el padre se suicidó. La madre presentó una demanda en el juzgado nacional contra las autoridades españolas. El tribunal falló en contra de ella, decidiendo en abril de 2011 que el régimen de visitas era sólido y negó al caso cualquier relevancia constitucional. Como resultado, la madre presentó esta queja al Comité de la CEDAW. El Comité determinó que la madre indicaba que, al decidir el plan de visitas de los padres, las autoridades españolas deberían haber tenido en cuenta el contexto existente de violencia doméstica en la familia. En cambio, las autoridades españolas habían tomado una decisión de rutina de que este tipo de esquema de visitas era apropiado sin tener en cuenta los hechos específicos de este caso. El Comité sostuvo que las autoridades españolas no habían tenido en cuenta el interés superior del niño. El Comité ha encontrado repetidamente que un Estado puede ser responsabilizado por actos de individuos si no ejerce la diligencia necesaria para prevenir violaciones de la Convención de la CEDAW. Específicamente, España había violado los artículos 2 a), d), e) yf), 5 a) y 16 párrafo 1 de la CEDAW. Además, la CEDAW dictaminó que España debe brindar capacitación a jueces y otros profesionales para evitar fallas similares en el futuro. Desde entonces, España ha declarado que introducirá nuevos mecanismos para proteger a los niños en casos de violencia de género, como exigir que los jueces actúen con precaución en su toma de decisiones.