Domestic Violence Legislation and its Implementation

INTERNATIONAL STANDARDS
ON DOMESTIC VIOLENCE LEGISLATION
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c. Other orders
Other orders that may be provided for in special legislation include custody orders and orders for
maintenance or fi nancial support. In most cases, such orders are temporary in nature, requiring fi nal
resolution under relevant family law.
2.2 Criminal remedies
a. Criminal provisions deeming domestic violence as an offence
Due to its gendered nature and prevalence, domestic violence constitutes a human rights violation,
which differentiates it from other crimes. This calls for stricter standards for state agencies to
investigate complaints of domestic violence and bring perpetrators of violence to justice. If this
responsibility is not met, the State fails to meet the guarantee of equal protection of rights.
b. Mandatory arrest and “no drop” prosecution policies
In addition to penal provisions recognising domestic violence as a criminal offence, some countries
have adopted further measures to prevent and deter further acts of violence. Such strategies include
mandatory arrest and no drop prosecution policies; policies for controlling assailants; mandatory
counselling of perpetrators of violence; and criminal sanctions for the violation of civil orders, etc.
c. Measures to encourage complainant participation in criminal proceedings
A fi rst step toward encouraging complainants to participate in criminal proceedings is to put
in place witness protection measures to reduce retaliatory attacks by the accused. Witness
protection programmes can also be extended to ensure that civil orders are enforced. Other rights
of complainants should also be recognized, including the right to obtain copies of complaints,
investigative reports and record notes of proceedings. This should also include notices for hearings,
information on court dates and the right to be present in court while the matter is being heard. In view
of the fact that in a criminal case, it is the State that initiates and conducts the proceedings on behalf
of the complainant, it has been a common experience that complainants feel more empowered and
are more involved in the proceedings if they are also given the opportunity to participate through their
own counsels, in addition to the legal representation provided by the State. Finally, the complainant
should be informed of the outcome of the case and, if the case is closed, be given an opportunity
to fi le protest petitions should the decision adversely affect her rights. Complainants should also be
notifi ed of orders of discharge/acquittal or grant of bail to the accused. Legal counsel and legal aid
should also be available for the complainant to facilitate her participation in proceedings.
To ensure the effective working of the criminal justice system investigative functions of the police
force should be separate from law and order duties. 14 Finally, creating a separate directorate for
prosecutions will ensure effective prosecution and implementation of witness protection programs.
14 Discharging investigative functions require a different kind of training and commitment which, if combined with the additional
responsibility of maintaining law and order, leads to overburdening of the police force. Hence, an argument that has gathered a lot of
support is the need to separate these two equally necessary functions of the police forces.