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What is advocacy for legal system reform?

  • Legislative advocacy may be accompanied by wider legal systems reform, which not only seeks to create or change legislation, but also to ensure that such legislation is properly implemented. Advocacy for legal system reform is the specific activity of advocating for the creation and adoptions of policies and procedures that implement or give effect to legislation or changes to existing legislation.. Legal system reform is not the only type of reform that may directly impact victims of violence. Efforts to reform systems that provide housing, health, labor, education, and child care also assist victims of violence. 
  • Such advocacy may include improving the response of law enforcement, prosecutors, and judges.  The following examples all demonstrate the power of advocates identifying gaps in the way laws have been implemented, and seeking to improve the response by working collaboratively with members of the legal system to create new processes, procedures and programs.

(1)  Law Enforcement Reform Efforts
An example of broad legal systems reform related to improving the police response to domestic violence is the implementation of policies or laws that change the way in which, or the conditions under which, officers may, should and must make arrests. For example, in cases involving simple or minor injuries, "probable cause" arrest policies allow police officers to make arrests based on the presence of evidence (such as damaged property, visible injuries, or a frightened woman) that would lead to the conclusion that an assault had occurred. Police may make the arrest without witnessing the crime. Mandatory arrest policies take this one step further and require the police to make an arrest at the scene of a domestic assault.  See: Law Enforcement Reform Efforts, StopVAW.

(2)  Prosecutorial Reform Efforts
Another example of legal system reform has been in countries that have created dedicated domestic violence units within prosecutor's offices—that is, teams of prosecutors who prosecute only domestic violence cases.  Many prosecutors' offices have policies that provide for prosecution of cases without the victim’s testimony, if there is sufficient independent evidence. These policies are sometimes referred to as “evidence based” or "absent victim" prosecutions. Such a policy sends the message to the offender and the community that the state sees domestic violence cases as a community priority. (See: Prosecutorial Reform Efforts, StopVAW.)

Prosecutors' offices have also sought to improve their response by developing ways to provide victims and witnesses with additional information and support. Some offices coordinate with battered women's groups to provide these services, while others have created a victim/witness advocate position within their offices to assist victims throughout the criminal proceeding. (See: Prosecutorial Reform Efforts, StopVAW.)

(3)  Judicial Reform Efforts
Advocates can work to improve judicial responses to domestic violence in a number of ways.  However, advocates should be aware of the state of the judiciary in the particular country where reform will be advocated.  The American Bar Association (ABA) Rule of Law Initiative measures progress in judicial reform with its Judicial Reform Index (JRI), an assessment tool comprised of 30 objective factors against which a judicial system can be evaluated.  See: ABA Rule of Law Initiative, Judicial Reform Programs

Advocacy for judicial system reform may take the form of court monitoring, training, dedicated courts and processes. Court monitoring, for example, helps to systematically identify needed improvement in judicial responses. The results of the monitoring can be used to advocate for improvement in the system.  Monitoring also increases the visibility of these issues; the presence of monitors in courtrooms can itself cause judges to improve their handling of domestic violence cases. Trainings for judges can provide judges with the information they need to better address the needs of battered women and ensure batterer accountability.  See: Role of the Judiciary, StopVAW.  Court monitoring has been effective in many countries, including Macedonia and Brazil. 

CASE STUDY:  In Minnesota, USA, a non-profit organization called WATCH, engages in court monitoring of cases related to violence against women. WATCH has identified and been a part of numerous legal system changes over the years.  WATCH trains volunteers to attend court sessions and report on what they observe. Volunteers are in court everyday, allowing WATCH to gather comprehensive, reliable data. WATCH also gathers comprehensive data on cases.  This data in combination with the courtroom observations enables WATCH to identify trends and systemic problems.  Finally WATCH staff and volunteers advocate for system changes as indicated by the trends and systemic problems.  They provide information and recommendations to legislative and policy making bodies, court staff, and the public so as to encourage change that protects the rights of women in the legal system.  WATCH also conducts training and provides resources for those who wish to start a court monitoring program. For example, WATCH has monitored the implementation of Minnesota’s new felony strangulation law as well as examining how victim impact statements affect sentencing. In April 2011, WATCH prepared a report, following an extensive study, on the inadequacy of investigative procedures in misdemeanor domestic violence cases by suburban courts.
  • Dedicated courts and court processes can also help ensure batterer accountability and victim protection by streamlining navigation of the court system, increasing victims' access to resources, and ensuring a greater expertise of the judges and other personnel addressing these issues. See the 2008 United Nations expert group report entitled "Good practices in legislation on violence against women" for recommendations on creating legislation on violence against women, including specialized courts (Section 2.H), investigation and legal proceedings (Section 7), and sentencing (Section 9).  See:  Role of the Judiciary, StopVAW.  A number of countries have begun to use dedicated courts, including Spain and Liberia, featured in the following case study. (See Promising Practice: Spain’s Specialized Violence Against Women Courts, 15, Domestic Violence Section of this Module)

CASE STUDY: Liberia’s Court “E” for Sexual Violence

As the West African nation of Liberia began its recovery after two decades of internal conflict and civil war, the plight of women victims of sexual violence was desperate. After a civil war in rape and sexual violence were used as a war tactic with complete impunity, Liberia saw the same pattern of impunity repeating in the post-conflict era. The Advocates for Human Rights, Liberia is Not Ready: 2010, 35. After passing a new law against rape in 2005 but seeing rape cases move too slowly through the regular courts, women’s rights groups such as the Association of Female Lawyers of Liberia, determined that a special court was necessary to focus exclusively on sexual violence against women. After two years of advocacy, the establishment of Court E was approved.  With the support of the UNFPA a new building was constructed, training for prosecutors and police was begun, and cases have begun moving through the court. When the court opened, more than 140 people were awaiting trial on rape charges. The court has exclusive original jurisdiction over cases of rape, sodomy and other forms of sexual assault including abuse of minors. Special Court for Sexual Violence Underway, IRIN, March 21, 2008; Liberia – The New War is Rape, AllAfrica.com, Nov. 19, 2009.  The Court’s administration has been hampered by the failure of magistrate judges to transfer cases timely within the seventy-two hour deadline.  Presiding Judge Ceaineh Clinton-Johnson issued a warning to magistrates in February 2013 – noting that they lack jurisdiction over sexual offense cases and, therefore, authority to dismiss cases for inadequate evidence.  Liberia: Arrest & Charge,  AllAfrica.com, Feb. 20, 2013.

(4)  Inter-Agency Reform Efforts
Prosecutors, judges, advocates, medical personnel, law enforcement, emergency medical technicians, family and community members can also work together to improve the government response to violence against women by creating domestic fatality review boards.  These review boards examine domestic violence related deaths including the events leading up to the death(s) in order to determine what lead to the homicide(s); but also to study the particular case at hand and similar cases to identify systemic issues that contributed to the offender’s actions and the failure to protect the victim.  See:  Domestic Fatality Review Boards, StopVAW, The Advocates for Human Rights, 2006. The St. Paul Blueprint for Safety is an example of an inter-agency reform effort that focuses on criminal justice agencies.  The Blueprint includes specific guidance for every agency, including what victims need to be safe, what workers need from each other to do their jobs, and what is required by each worker and agency to hold an offender accountable. (See Case Study:  St. Paul Blueprint for Safety, 25, Implementation Section of this Module)