Criminal penalties and procedures

Legislation should state the penalties for all acts of domestic violence, including those involving low-level injuries. Legislation should not allow for payment of bride price or dowry as defenses to charges of domestic violence.

Evidence

• Legislation should provide that medical or forensic evidence is not required for domestic violence convictions.

• Legislation should prevent the introduction of the survivor’s sexual history in both civil and criminal proceedings either during the trial or during the sentencing phase.

• Legislation should state that a survivor, including a minor survivor, may receive a medical and forensic examination regardless of whether or not the survivor reports to law enforcement. In countries with mandatory reporting laws, legislation should require mandatory reporters to provide a full explanation of laws and policies to the survivor when a report is required.

• Legislation should state that the survivor, including a minor survivor, may be examined and treated by a forensic doctor or other medical practitioner without the consent of any other person.

• Legislation should state when the survivor is referred for medical examination, the examination should be done at the expense of the state.

• Legislation should allow the presentation of expert testimony on domestic violence. Jurors who are exposed to relevant social and psychological research on domestic violence are more likely to understand the dynamics of domestic violence, power and control tactics, and the dynamics of victimization. Experts could assist the court in explaining such victim actions as recantation, returning to an abuser, or demonstrating ambivalence about prosecution of an abuser

• Legislation should provide that a court may not distinguish between the weight given to the testimony of a complainant in a domestic violence case and the weight given to the testimony of any other witnesses.

Prompt complaint

Legislation should state that no adverse inference shall be drawn from a delay between the act of violence and the reporting of the act of violence. The judicial officer should be required by the legislation to so inform the jury.

Treatment or diversion programs for perpetrators

Legislation should provide that if intervention, treatment or diversion programs (pretrial diversion programs are alternatives to prosecution which seek to divert offenders with no prior offences from traditional criminal justice processing into a program of supervision and services) are prescribed for perpetrators, the operators of such programs must work in close cooperation with survivor service providers to enable constant feedback from the complainant/survivor about the recurrence of violence. Legislation should provide that all sentences to alternative, treatment, or diversion programs are to be handed down only in cases where there will be continuous monitoring of the case by justice officials and survivor organizations to ensure the survivor’s safety and the effectiveness of the sentence. Legislation should require that such alternative sentences be monitored and reviewed on a regular basis. Legislation should require immediate reports to probation officers and police about recurring violence. (See: UN Handbook 3.11.6; The Toolkit to End Violence Against Women, p. 14)

For example, the Criminalization of Violence against Women Law (2007) of Costa Rica (Spanish only) includes detailed conditions on when alternative sentences may be imposed, and on the alternatives which are available. Spain’s Organic Act 1/2004 of 28 December on Integrated Protection Measures against Gender Violence (2004) provides for suspension of certain penalties (under two years in jail) if the perpetrator participates in an intervention programme. (Article 35)