• Legislation should include a broad definition of domestic violence that includes physical, sexual, psychological and economic violence.  

Drafters should consider limiting the intervention of the criminal justice system and order for protection courts to cases involving physical violence, because the inclusion of psychological and economic violence in the definition of domestic violence has in some cases had the unintended consequence of creating opportunities for perpetrators to claim psychological or economic abuse against their victims. For example, an angry or disgruntled violent abuser may seek protection measures against his wife for using property owned by him. Or, a perpetrator may claim that physical violence is an appropriate response to an act he sees as economically disadvantageous to himself. Government intervention in the form of orders for protection and criminal sanctions for offenders may have unintended harmful consequences for the victim in many cases of mental or psychological abuse. Also, claims of psychological and economic violence may be very difficult to prove in legal proceedings.

In 2008, a group of experts at meetings convened by the United Nations recommended that “It is therefore essential that any definition of domestic violence that includes psychological and/or economic violence is enforced in a gender-sensitive and appropriate manner. The expertise of relevant professionals, including psychologists and counselors, advocates and service providers for complainants/survivors of violence, and academics should be utilized to determine whether behavior constitutes violence.” (UN Handbook, 3.4.2.)

(See: UN Model Framework, II3, which urges States to adopt a broad definition of the acts of domestic violence, in compatibility with international standards; and Gender-Based Violence Laws in Sub-Saharan Africa, (2007), p. 52.)

The Law on Protection Against Domestic Violence (2005) of Bulgaria (hereinafter law of Bulgaria) states:

“Domestic violence is any act of physical, mental or sexual violence, and any attempted such violence, as well as the forcible restriction of individual freedom and of privacy, carried out against individuals who have or have had family or kinship ties or cohabit or dwell in the same home.” Chapter 1, S. 2

 

The Domestic Violence Act (1998) of South Africa (hereinafter law of South Africa) includes a definition of domestic violence which contains the following clause:

“…any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health, or well-being of the complainant.” Sec.1(viii)(j) The legislation then describes particular acts of abuse, such as economic abuse and emotional, verbal, and psychological abuse, in more detail.

 

If a domestic violence law contains a detailed description of prohibited behaviors, it may limit judicial bias. See: Domestic Violence Legislation and its Implementation: An Analysis for ASEAN Countries Based on International Standards and Good Practices (2009).

Drafters should consider, however, that when a detailed list of acts of abuse is included in legislation, it may also have the effect of excluding some unanticipated abusive behavior from legal sanctions.

The law of Brazil defines domestic abuse as “any action or omission based on gender that causes the woman’s death, injury, physical, sexual or psychological suffering and moral or patrimonial damage.” It includes detailed descriptions of the proscribed behaviors:

Article 7. The forms of domestic and family violence against women, are, among others:

I - physical violence, understood as any behavior that offends the woman’s bodily integrity or health;

II - psychological violence, understood as any behavior that causes emotional damage and reduction of self-esteem or that harms and disturbs full development or that aims at degrading or controlling the woman’s actions, behaviors, beliefs and decisions, by means of threat, embarrassment, humiliation, manipulation, isolation, constant surveillance, constant pursuit, insult, blackmail, ridiculing, exploitation and limitation of the right to come and go or any another means that causes damage to the woman’s psychological health and self-determination;

III - sexual violence, understood as any behavior that forces the woman to witness, maintain or participate in unwanted sexual intercourse, by means of intimidation, threat, coercion or the use of force; that induces the woman to commercialize or to use, in any way, her sexuality, that prevents her from using any contraceptive method or that forces her to marriage, pregnancy, abortion or prostitution, by means of coercion, blackmail, bribe or manipulation; or that limits or annuls the exercise of her sexual and reproductive rights;

IV – patrimonial violence, understood as any behavior that constitutes retention, subtraction, partial or total destruction of the woman’s objects, working instruments, personal documents, property, assets and economic rights or resources, including those intended to satisfy her needs;

V - moral violence, understood as any behavior that constitutes slander, defamation or insult.

The Domestic Violence Act (1994) of Malaysia (hereinafter law of Malaysia) states:

 "domestic violence" means the commission of any of the following acts:

(a) willfully or knowingly placing, or attempting to place, the victim in fear of physical injury;

(b) causing physical injury to the victim by such act which is known or ought to have been known would result in physical injury;

(c) compelling the victim by force or threat to engage in any conduct or act, sexual or otherwise, from which the victim has a right to abstain;

(d) confining or detaining the victim against the victim's will; or

(e) causing mischief or destruction or damage to property with intent to cause or knowing that it is likely to cause distress or annoyance to the victim, by a person against—

(i) his or her spouse;

(ii) his or her former spouse;

(iii) a child;

(iv) an incapacitated adult; or

(v) any other member of the family…” Part I, 2

The Protection of Women From Domestic Violence Act (2005) of India (hereinafter law of India) defines domestic violence as follows:

3. Definition of domestic violence.-For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it -

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any

conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I.-For the purposes of this section,-

(i) "physical abuse" means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) "verbal and emotional abuse" includes-

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) "economic abuse" includes-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation II.-For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration. Chapter II, 3 

(See: What Is Domestic Violence, StopVAW, The Advocates for Human Rights; Forms of Domestic Violence, StopVAW, The Advocates for Human Rights: and Family Violence: A Model State Code, USA, 1994.)

• Legislation should include the following provision in a definition of domestic violence: “No marriage or other relationship shall constitute a defence to a charge of sexual domestic violence under this legislation.” (UN Handbook, 3.4.3.1)

• Drafters should consider including a definition of domestic violence as a course of conduct. For example, The Domestic Violence Act (2007) of Sierra Leone (hereinafter the law of Sierra Leone) contains the following provision:

4.(1) A single act may amount to domestic violence.

(2) A number of acts that form a pattern of behaviour may amount to domestic violence even though some or all of the acts when viewed in isolation may appear minor or trivial. Part II 4

(See also: the Combating of Domestic Violence Act (2003) of Namibia (hereinafter law of Namibia) Part I 2 (3) and (4).)

• Legislation should include certain acts which have only recently come to be recognized as serious threats to the complainant/survivor, and which may not be included in criminal law provisions, such as stalking, sometimes called harassment, and acts involving the latest forms of technology.

For example, the law of Sierra Leone includes the following:

“…harassment means sexual contact without the consent of the person with whom the contact is made, repeatedly making unwanted sexual advances, repeatedly following, pursuing or accosting a person or making persistent, unwelcome communication with a person and includes-

(a)  watching, loitering outside or near a building where the harassed person resides, works, carries on business, studies or happens to be;

(b)  repeatedly making telephone calls or inducing a third person to make telephone calls to the harassed person, whether or not conversation ensues;

(c)  repeatedly sending, delivering or causing the delivery of letters, telegram, packages, facsimiles, electronic mail or other objects or messages to the harassed person’s residence, school or workplace, or;

(d)  engaging in any other menacing behaviour;” Part 1, 1

See: Respect, Protect, Fulfill: Legislating for Women’s Rights in the Context of HIV/AIDS, Module 2: Domestic Violence, p. 2-4.

• Legislation should define stalking as a pattern of harassing or threatening behaviors. Naming these behaviors "stalking" is useful in a number of ways. First, the stalking itself, and not just the assault which often results, is a form of violence. The batterer is taking specific actions, such as calling or appearing at a place of work, that are designed to intimidate and coerce his former partner. Second, the term "stalking" identifies a pattern of behaviors that often leads to serious or fatal attacks. Identifying the pattern of behaviors can therefore be useful in taking steps to prevent an assault. Third, naming this pattern of behaviors helps to convey the seriousness of these behaviors. Individually, the acts that constitute stalking, such as telephone calls or texting, may appear to be relatively innocent. Taken together, however, they indicate the presence of a severe threat to the victim.

The increased use of technology in society today has created more opportunities for stalkers to track their victims. Digital stalking and electronic monitoring are two forms of stalking used to track a victim through technology. Stalkers may trace a persons’ computer and internet activity, send threatening e-mail or electronic viruses.

(From: Stalking, StopVAW, The Advocates for Human Rights. See: Bortel, Angela, “Technology and Violence against Women,” StopVAW, The Advocates for Human Rights; Minnesota, USA Statute 609.749; Lemon, Nancy K.D., “Domestic Violence and Stalking: A Comment on the Model Anti-Stalking Code Proposed by the National Institute of Justice (1994); and Minnesota Coalition for Battered Women, “Facts About Intimate Partner Stalking in Minnesota and the United States” (2009).)