Due to their respected position in society, judges should be the natural leaders in justice sector reform. However, in their rulings, judges often reflect the views of a society which tolerates violence toward women and girls. Some judges have blamed victims for the violence. Some have helped to create a culture of impunity by refusing to convict or justly sentence violent offenders.
Reforms in legislation on violence against women have led to more women coming forward and asking for justice. For example, in states where domestic violence has been defined and criminalized and orders for protection are available, requests for protection increase. In states where the definition of rape has changed from a crime of family “honor” to a sexual assault, survivors are more likely to pursue their case. Judges should put victim safety first and work to ensure that women and girl survivors of violence will be treated with courtesy, fairness, and respect at every stage of the court procedure and particularly, not discriminated against Judges can also modify and improve court protocols and procedures to better support claims from women and girl victims of violence.
Judges can show that they prioritize victim safety by:
- Understanding that victim safety and not family reunification should be the primary goal of the justice sector.
- Issuing orders for protection immediately. Victim safety depends upon an efficient system of issuing orders for protection.
- Providing full support to victims of violence. Judges should interpret legislation on orders for protection broadly to provide a wide range of protective options for victims, including a safe place to live, restrictions upon the offender to approach the workplace or neighborhood of the victim, custody provisions that grant temporary custody of minor children to the non-violent parent, and adequate support for the victim and the children. See the section on Domestic Violence in the Knowledge Module on Legislation.
- Not issuing warnings to perpetrators of violence. Judges must hold offenders accountable for acts of violence. Warnings do not send a message of zero tolerance for violence against women and girls, and can increase the risk of harm to victims.
- Not issuing orders for mediation between parties in cases of violence against women. Mediation assumes that the parties stand on equal ground for negotiation. In many cases of violence the requisite level of equal bargaining power for fair negotiations does not exist between parties.
- Refraining from placing any blame on the victim of violence. The demeanor and language of the judge conveys an important message to both perpetrator and victim: that the court is a safe environment for petitioners and that violence will not be tolerated (Klein, 2009).
- Issuing warrants immediately whenever perpetrators fail to appear at any legal proceeding, fail to surrender firearms when ordered, or violate any court order in cases involving violence against women. Judges should facilitate a procedure that would allow warrants to be issued after business hours and on weekends.
- Ensuring that cases of violence against women receive highest priority and shorten all waiting periods. Victims of violence who experience delays are more likely to end their participation in a case. Delays are not only inconvenient. They send a message that the case is not important. Delays may place the victim in greater danger. Research shows that the risk of harm increases when women seek outside intervention. Violent offenders often try to intimidate victims into dropping the case or recanting their evidence. Defense attorneys may postpone cases in the hope that a victim will get discouraged and drop out. And, when cases are resolved in a timely manner, victims will become eligible sooner for restitution or compensation payments which increase their opportunities to be independent and to escape abuse. Judges should do all that is in their power to increase the efficiency of the court process in cases of violence against women by re-designing court dockets to expedite these cases.
- Expediting all trials and hearings, including hearings on violations of court orders or conditions of parole or probation. Many survivors end cooperation with prosecution when trials are postponed and hearings delayed. They may be avoiding a drawn out period of re-traumatization, avoiding perpetrator retaliation, or ending community disapproval.
Philippines – Strategies for responding to increasing caseload
The Supreme Court of the Philippines led an initiative to improve the judiciary’s ability to respond to an increasing caseload. It adjusted court jurisdiction, increased court size, and created special courts for certain subject areas to improve efficiency. It also required the use of trials with no continuances or delays for a two-year period to eliminate a long-standing backlog of cases.
Source: Asian Development Bank. 2009. Background Note on the Justice Sector of the Philippines.
- Taking claims of violence seriously and providing sanctions for perpetrators as provided by law. Many women do not report or pursue claims of violence simply because they do not think the perpetrator will be punished. Judges bear the prime responsibility for ending impunity for violence against women and girls.
- Applying sentencing guidelines uniformly. Sentences for the same offense which vary widely are an important source of public perceptions of corruption. Judges should utilize sentencing guidelines and work within these to determine the most appropriate sentence for each case. Judges should apply sanctions which are comparable to those for non-gender-based crimes of violence.
India – Handbook on Domestic Violence
The Handbook on Law of Domestic Violence is an attempt to provide a tool for judges towards uniform and proactive implementation of the Protection of Women from Domestic Violence Act 2005 (PWDVA) to ensure that the promise and goal of promoting and fulfilling women’s human rights is upheld. The Handbook not only acts as a guide with regard to the PWDVA and collates the best practices that have emerged from domestic and international experiences, but also provides an overview of the gamut of laws, procedures, and the jurisprudence that have an impact on a case of domestic violence. Although the Handbook is intended primarily for members of the judiciary, it is also an important reference guide for legal academicians, lawyers, and relevant authorities. The Handbook has been inspired by the rich practice and framework of existing Bench Manuals intentionally but is based on the experiences of the Indian legal system and the particular needs of women facing domestic violence in India. To obtain a copy, contact: email@example.com.
- Instructing victims and perpetrators about terms of sentences and conditions of orders for protection. Judges should inform both parties about the consequences of noncompliance.
- Incarcerating repeat offenders or high-risk offenders. Many cases of violence against women have instances of escalating violence. And, it is well-established that the most dangerous time for a victim of violence is when she leaves the abuser or seeks police or judicial assistance. Judges should take note of risk factors and rule accordingly.
- Requesting information about the perpetrator in the plea and bail and sentencing process and modifying existing court orders, terms of probation, and sentences to reflect the recurrent use of violence or threat of violence by the perpetrator. Judges should ask victims if they believe they are still at risk. Court staff should enter the modifications into a database and communicate with law enforcement as to the change.
- Utilizing risk or lethality assessments from the first bail or charging hearing and throughout the process, including plea, probation, or sentencing hearings. Judges should seek input from the victim, her family, and the community when evaluating the risk to victims. Judges must receive sufficient information to determine systemic patterns of abuse in order to best protect victims (Klein, 2009). Judges should use a standardized risk assessment to ensure consistency and best results. Judges should consider the victim’s opinion of her safety as part of the risk assessment.
USA – Domestic Violence Risk Assessment Bench Guide and Tips for Use
The Domestic Violence Risk Assessment Bench Guide is a research-based guide used by Minnesota, USA, judges at all stages of family, order for protection, civil, or criminal cases which involve domestic violence. It includes an assessment and instructions for implementing the assessment. (The assessment can also be used by police, prosecutors, and domestic violence service providers.)
Note: The presence of these factors can indicate elevated risk of serious injury or lethality. The absence of these factors is not, however, evidence of the absence of risk of lethality.
Justice System Personnel Should Determine:
- Does alleged perpetrator have access to a firearm, or is there a firearm in the home?
- Has the alleged perpetrator ever used or threatened to use a weapon against the victim?
- Has alleged perpetrator ever attempted to strangle or choke the victim?
- Has alleged perpetrator ever threatened to or tried to kill the victim?
- Has the physical violence increased in frequency or severity over the past year?
- Has alleged perpetrator forced the victim to have sex?
- Does alleged perpetrator try to control most or all of victim’s daily activities?
- Is alleged perpetrator constantly or violently jealous?
- Has alleged perpetrator ever threatened or tried to commit suicide?
- Does the victim believe that the alleged perpetrator will re-assault or attempt to kill the victim? A” no” answer does not indicate a low level of risk, but a “yes” answer is very significant.
- Are there any pending or prior Orders for Protection, criminal, or civil cases involving this alleged perpetrator?
How To Use The Domestic Violence Risk Assessment Bench Guide
Note that this list of risk factors is not exclusive. The listed factors are the ones most commonly present when the risk of serious harm or death exists. Additional factors exist which assist in prediction of re-assault. Victims may face and fear other risks such as homelessness, poverty, criminal charges, and loss of children or family supports.
Obtain information regarding these factors through all appropriate and available sources. Potential sources include police, victim witness staff, prosecutors, defense attorneys, court administrators, bail evaluators, pre-sentence investigators, probation, custody evaluators, parties, and attorneys.
Communicate to practitioners that you expect that complete and timely information on these factors will be provided to the court. This ensures that risk information is both sought for and provided to the court at each stage of the process and that risk assessment processes are institutionalized.
Review report forms and practices of others in the legal system to ensure that the risk assessment is as comprehensive as possible.
Expect consistent and coordinated responses to domestic violence. Communities whose practitioners enforce court orders, work in concert to hold alleged perpetrators accountable, and provide support to victims are the most successful in preventing serious injuries and domestic homicides.
Do not elicit safety or risk information from victims in open court. Safety concerns can affect the victim’s ability to provide accurate information in open court. Soliciting information from victims in a private setting (by someone other than the judge) improves the accuracy of information and also serves as an opportunity to provide information and resources to the victim.
Provide victims information on risk assessment factors and the option of consulting with confidential advocates. Information and access to advocates improves victim safety, the quality of victims’ risk assessments and, as a result, the court’s own risk assessments.
Remember that the level and type of risk can change over time. The most dangerous time period is the days to months after the alleged perpetrator discovers that the victim might attempt to separate from the alleged perpetrator or to terminate the relationship, or has disclosed or is attempting to disclose the abuse to others, especially in the legal system.
- Studying plea or pre-trial release conditions and sentence requests with victim safety in mind, and reject all that may compromise victim safety and that do not provide accountability for the perpetrator. For example, common conditions of pre-trial release may include prohibiting the defendant from communicating in any way with the victim and from possessing a firearm (Praxis International, 2010). Common sentence requests such as anger management classes do not provide safety for the victim because they do not address the underlying issues of power and control that are the root cause of domestic violence (Praxis International, 2010).
- Conducting compliance reviews as a way to supervise the conduct of violent offenders, including those who may be on probation or in treatment programmes. Regular scrutiny of offender conduct can work to prevent re-occurrence. Compliance reviews are also essential in court-ordered programmes such as sex offender treatment programmes, drug or alcohol treatment programmes, and batterer intervention programmes to make the perpetrator accountable for fulfilling the requirements of the programme
- Considering evidence of sexual assault in cases of violence against women when determining the level of risk to victims, protective orders, plea and bail arrangements, and sentencing, even if the crime of sexual assault was not prosecuted as part of a domestic abuse case. Research suggests that sexual abuse is a common element of domestic violence cases although it is underreported by victims (Klein, 2009).
- Not penalizing victims who will not participate in a criminal case. Victims know best what they need to do to stay safe and to heal. Judges should remain open to absent-victim prosecution strategies, or cases that proceed without testimony from a victim or survivor. Judges should also be aware that the lack of court room security procedures may also impact a victim’s willingness to testify.
- Sanctioning violations of court orders, parole terms, or probation conditions swiftly and consistently.
- Requiring that the prosecutor provide evidence that one party is the predominant aggressor in cases of dual arrest. Otherwise, victims will suffer undeserved consequences, including jail time, and the possible loss of custody or compensation. Victims who are arrested and charged after a domestic violence incident are far less likely to report violence again and more likely to remain in a dangerous situation.
- Allowing domestic violence survivors who are convicted of crimes to have parole release decisions made with appropriate weight given to their confinement record and actual public safety risk; and allowing domestic violence survivors who are convicted of crimes to earn merit time credits and temporary work release privileges. Considering sentencing domestic violence survivors who acted to protect themselves to alternative programs instead of prison. (Avon Global Center for Women and Justice at Cornell Law School and the Women in Prison Project of the Correctional Association of New York, 2011).
- Offering flexibility in court date scheduling. Judges should consider issues victims might have with work or child care needs and travel expenses.
- Ensuring compliance with evidentiary rules, victim’s rights legislation, and protective measures such as rape shield laws.
- Limiting court procedures that may intimidate victims such as depositions, which are information-seeking sessions where a victim may be aggressively questioned by the defense attorney, and evidentiary hearings, which examine the charges in a formal setting. These procedures may be used as tactics to discourage a victim from pursuing the case.
- Minimizing the necessity for victims to appear in court. Repeatedly recounting incidents of abuse is traumatizing for the survivor. Victims who have to return to court repeatedly likely will be unduly burdened and may lose income, lose their job, have trouble with transport and child care, etc. Defense lawyers may employ a strategy of many motions requiring court appearances in the hope that the victim will end her participation. Judges should be aware that a victim’s economic stability may be adversely affected by repeated court hearings. Also, abusers may limit women’s access to court or re-victimize her upon each visit to court.
- Ensuring that victim’s contact information remains confidential. Provide alternatives for the victim to receive court notices, such as through her attorney or a woman’s organization.
- Protecting privileged communications from victim counseling sessions.
- Awarding custody to survivors of intimate partner violence in cases of domestic or family violence. Visitation should be awarded to a parent who committed domestic violence only if the court finds that adequate provision for the safety of both the child and the parent who is a victim of domestic violence can be made. Justice system personnel should be aware that visitation schedules often increase opportunities to stalk, manipulate, or intimidate victims. Courts should consider past incidents of domestic violence when awarding visitation.
- Applying international human rights standards to cases in domestic courts.
Tools for Judges:
Checklist for Domestic Application of International Law (Avon Global Center for Women and Justice). Available in English.
Council of Europe Convention on Preventing and Combating Violence against Women and Domestic violence (2011) provides an example of a binding instrument that prohibits mandatory alternative dispute resolution processes, including mediation and conciliation (Art.48). Available in English , French and Spanish.
The St. Paul Blueprint for Safety (Praxis International, 2010). A comprehensive plan for the judiciary, law enforcement, and service providers to respond to domestic violence in any country. Available in English.
Training Manual on Combating Violence against Women (Appelt, Kaselitz and Logar, eds., (2000). provides information on myths and realities of violence against women, training objectives, methods, and teaching aids, and specific modules for judicial professionals (among others) including handouts. Available in English.
The Toolkit to End Violence Against Women (National Advisory Council on Violence Against Women, 2001). USA. Contains many strategies for judges, prosecutors, and other legal system professionals to improve their response to violence against women. Available in English.
Model Strategies and Practical Measures on the Elimination of Violence Against Women in the Field of Crime Prevention and Criminal Justice: Resource Manual (International Centre for Criminal Law Reform and Criminal Justice Policy Canada, 1999). Comprehensive strategies for responses to violence against women. English.
Guidelines for Practicing Gender Neutral Courtroom Procedures (The Gender Bias Reform Implementation Committee, 2004). English.
Pretrial Innovations for Domestic Violence Offenders and Victims: Lessons from the Judicial Oversight Initiative (US Department of Justice Office of Justice Programs, 2007). Contains specific guidance for restructuring courts to promote victim safety and offender accountability in domestic violence cases. Available in English.
Guia de Criterios de Actuación Judicial Frente a la Violencia de Género (Consejo General Del Poder Judicial, 2008) A resource for judicial professionals in Spain, it provides information on rights of survivors and judicial remedies, among other issues. Available in Spanish.
Domestic Violence and the Courtroom: Understanding the Problem, Knowing the Victim (American Judges Association) Available in English.
Improving the Judicial Response to Domestic Violence in the Courtroom (The Advocates for Human Rights, 2003). Available in English and Russian (attached).
Civil Protection Orders: A Guide for Improving Practice (National Council of Juvenile and Family Court Judges, USA, 2010). Available in English.