• Criminal penalties should be increased for repeated domestic violence offenses, even if they involve low-level injury. (See: Family Violence: A Model State Code, Sec. 203.) A 2009 study entitled Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges reported that enhanced penalties significantly reduced rearrest rates for domestic violence offenses. p. 52

For example, the law of Malaysia provides increased penalties for violations of protection orders and for violations that involved violence, and also allows the court to make a new order for protection:

8. (1) Any person who willfully contravenes a protection order or any provision thereof shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding two thousand ringgit or to imprisonment for a term not exceeding six months or to both.

(2) Any person who willfully contravenes a protection order by using violence on a protected person shall, on conviction, be liable to a fine not exceeding four thousand ringgit or to imprisonment for a term not exceeding one year or to both.

(3) Any person who is convicted for a second or subsequent violation of a protection order under subsection (2) shall be punished with imprisonment for a period of not less than seventy-two hours and not more than two years, and shall also be liable to a fine not exceeding five thousand ringgit.

(4) For the purposes of this section a "protection order" includes an interim protection order.

9. Where a person against whom a protection order has been made contravenes the protection order, the court may, in addition to any penalty provided for under section 8, make or make anew, as the case may be, any one or more of the orders under subsection 6(1), to commence from such date as is specified in such neworder. Part II, 8 and 9.

• Legislation should specify that penalties for crimes involving domestic violence should be more severe than similar non-domestic violence-related crimes. This sends the important message that the state will treat a domestic violence crime as seriously, if not more seriously, than a crime against a stranger. For example, the Criminal Code (2007) of Hungary requires higher penalties for a person who harasses their ex-spouse or their child than if they harass someone else. Section 176/A. Amendments to the Criminal Code (1994) of France provide higher penalties for certain acts of torture or violence when committed by a spouse or co-habitee of the victim. Articles 222-3. 222-8, 222-10 and 222-11. See: the Criminal Code (2002 ) of Moldova, which provides higher penalties for murder and severe and deliberate acts of violence against a spouse or close relative. Articles 145, 150, 151, 152 and 154. It also provides a higher penalty for inducing a spouse or close relative to commit suicide. Article 150. The Criminal Code (2004) of Romania provides for a higher penalty for the murder of a spouse or close relative (Article 179) or the rape of a family member. Article 217.

In Minnesota, USA, as well, these crimes include higher penalties than the same crime committed outside a domestic relationship: domestic assault which includes strangulation; murder while committing domestic violence or if the perpetrator has engaged in a past pattern of domestic violence; and unintentional murder when the perpetrator is restrained under an OFP and the victim was designated to receive protection under that order. (See: Minn.Stat.§609.185(a)(6); and Minn.Stat.§609.19 Subd.2(2).)

• Legislation should include guidelines for appropriate sentences for domestic violence-related offenses. For a list of goals in sentencing, see: Report of the Intergovernmental Expert Group Meeting to Review and Update the Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice, March 2009, 17(a).

• Legislation should provide that sentencing guidelines reflect the gravity of the offense. The Criminal Code of Serbia increases the term of imprisonment if domestic violence is committed with a weapon or if death results. Article 194.

• Legislation should provide that sentencing be enhanced for repeat offenses, including repeated violations of orders for protection. Andorra’s approach is to states that domestic violence repeat offenders shall receive a term of imprisonment irrespective of any other penalty that may be imposed on account of the injuries caused in each instance. The Criminal Code (2005) of Andorra, Article 114. 

• Legislation should allow an option for a judge to eliminate a fine if it would create a financial burden for the complainant/survivor. Although fines are commonly issued as a part of sentencing perpetrators, fines can present a significant problem for a complainant/survivor who must make use of the assets of the perpetrator to feed and house a family.

• Legislation should require judges to consider victim impact statements in all cases of domestic violence.
  
  

Lethality or risk assessments

Legislation should mandate that the police, prosecutors, and the judiciary investigate the level of risk to domestic violence victims.  Such assessments are vital to determining the risk of further injury to the victim, or homicide, and should play an important role in police and judicial response to each case. (See: Duties of police, Duties of prosecutors, and Duties of judiciary sections)

Such an assessment should include such questions, such as “Have you been choked?” or “Does he possess a firearm or other weapon and has he threatened to use it?” The assessment can give the legal system and the complainant/survivor important information to prepare for her safety. (See: Report of the Intergovernmental Expert Group Meeting to review and update the Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice, Bangkok, 23-25 March 2009, Section IV, 16 (f).)

Felony strangulation provisions

Legislation should provide serious penalties for strangulation. Many domestic violence victims have experienced some form of attempted strangulation, which has often been discounted as “choking.” This form of abuse can have serious physical and psychological consequences, and is often a precursor to deadly violence. 

(See: The Impact of the Minnesota Felony Strangulation Law. This report examines the impact the law has had on victim safety, defendant accountability, and public awareness.) 

(See also: Minnesota Coalition for Battered Women, “Facts About Intimate Partner Strangulation” (2009); and Minnesota Coalition for Battered Women, “Information about Murder-Suicide” (2009).)

Fatality reviews

Legislation should require domestic violence fatality reviews. These are reviews, conducted by police, advocates and other community responders, which examine community systems to assess whether domestic violence homicides could have been prevented had various institutions responded differently. (See: Chapter 4 of The Toolkit to end Violence against Women, p. 15.)

Conditions of release

In determining bail in cases of  violations of orders for protection, police and judicial officials must make determinations about victim safety, including the threat that the violent offender presents to the complainant/survivor, her family, and her associates, and must place conditions upon the release of the offender that reflect these concerns. See the section on Lethality and risk assessments, above.

(See: Family Violence:  A Model State Code, Sec 208.)

Legislation should provide specific direction to law enforcement officials about the conditions of release for violent offenders who have been arrested for violating an order for protection or for an act of domestic violence. See: the Code of Criminal Process (2007) of Portugal, which reinforces the prohibition on the offender to contact certain offenders in any way.

See also:

• Illinois, USA, Code of Criminal Procedure, Sec. 110-5.
• The Criminal Code of Portugal (2007) also provides for technical monitoring of offenders.