- Legislation should clearly state that it is the prosecutor’s responsibility to pursue domestic violence, dowry-related violence and dowry death cases regardless of the level of injury or evidence or relationship between the perpetrator and victim. See: Model Strategies and Practical Measures on the Elimination of Violence Against Women in the Field of Crime Prevention and Criminal Justice (1997) 7(b), which states that primary responsibility for initiating prosecution rests with prosecution authorities and not with complainant/survivors of domestic violence. Drafters must ensure that crimes involving domestic or dowry-related violence are not treated less seriously than other crimes. (See: law of Georgia, Ch. V. Art. 6) For example, in the law of Austria, ex officio prosecution is exercised at all levels of injury in cases of violence. (See: UN Handbook, 3.8.2)
CASE STUDY: Although India’s Penal Code includes a presumption of dowry death (Article 304(B)) providing certain elements are met, mere suspicion does not suffice for proof. Faulty investigation can fail to trigger this presumption. In Ashok Kumar Rath v. State, 1993 (2) Crimes 940 (Orissa), poor prosecutorial investigation resulted in no proof of dowry death, despite the fact that her death by burning occurred within two years of her marriage. The prosecution’s investigation was faulty in establishing cruelty in connection to dowry demands prior to her death and, for example, failed to interview any villagers about the crime. In Madhubehn v. State of Gujurat, 1993, a complaint issued by the victim’s sister against the prosecution for a similarly deficient investigation led the Court to order the investigation be handled by the Central Bureau of Investigation. (See: V.K. Dewan, Law Relating to Offences against Women, 2nd ed., Orient Law House: 2000, p. 147)
- By holding violent offenders accountable, prosecutors communicate to the community that domestic violence and dowry-related violence will not be tolerated.
- Legislation should require prosecutors to ensure that all available evidence has been collected by the police investigating body, including witness statements and photographs of injuries and the scene of the crime. By relying primarily on the evidence collected by the police rather than the victim’s testimony, prosecutors may be able to reduce the risk of retaliation by an abuser and increase the likelihood of a successful prosecution.
- Legislation should mandate that prosecutors investigate the level of risk to domestic and dowry-related violence victims in each case. Other agencies of the criminal justice system, including police and judges, should also assess the level of risk to victims. See section on Lethality and risk assessments below in Criminal Law Provisions and the sections on Duties of police and Duties of judiciary.
(See: Role of Prosecutors, StopVAW, The Advocates for Human Rights; Prosecutorial Reform Efforts, StopVAW, The Advocates for Human Rights; and CPS Policy for Prosecuting Cases of Domestic Violence, UK (March 2009))
- Legislation should require that prosecutors keep the complainant/survivors informed of the upcoming legal proceedings and their rights therein, including all of the court support systems in place to protect them. The U.N. Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice in General Assembly Resolution 52/86 states that any woman victim of violence should be “notified of any release of the offender from detention or imprisonment where the safety of the victim in such disclosure outweighs invasion of the offender’s privacy (Article 9(b)).”
Promising practice: The law of Spain creates the position of “Public Prosecutor for cases of Violence against Women,” who must supervise, coordinate, and report on matters and prosecutions in the Violence against Women Courts. Article 70 The legislation also requires prosecutors to notify complainant/survivor of the release of a violent offender from jail and requires prosecutors who dismiss cases of violence against women to tell the complainant/survivor why the case was dismissed.