Criminal sanctions and sentencing provisions

Criminal penalties should be increased for repeated domestic violence offenses, even if they involve low-level injuries. See Family Violence: A Model State Code, Sec. 203. A 2009 study, 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 protection order:

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 persons who harasses their ex-spouses or their children 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 a protection order See Minnesota Statutes, sec. 609.185(a)(6) and 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 require that sentencing be enhanced for repeat offenses, including repeated violations of protection orders. 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.

For example, South Carolina, USA, has more severe penalties for “criminal domestic violence of a high and aggravated nature” when one of the following occurs:

The person commits: (1) an assault and battery which involves the use of a deadly weapon or results in serious bodily injury to the victim; or (2) an assault, with or without an accompanying battery, which would reasonably cause a person to fear imminent serious bodily injury or death. Section 16-25-65 (A)

Legislation should allow judges to eliminate a fine that 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 to the victim 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?” and “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).

Example: The Alberta Integrated Threat and Risk Risk Assessment Centre, formerly the Relationship Threat Assessment and Management Initiative, of Alberta, Canada is a domestic violence threat assessment unit that involves academic specialists, family law experts, child intervention case workers, police, and prosecutors. It coordinates the efforts of justice officials and community organizations to more effectively address threats posed in violent, high-risk relationships and stalking situations. It also serves as a resource for police, domestic violence shelters, corrections officials, mental health workers, and communities.

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.

Example: A provision of Minnesota, USA, law (Minnesota Statute, sec.609.2247) which makes strangulation of a family or household member a specific and serious crime.

(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 if various institutions responded differently. (See: Chapter 4 of The Toolkit to end Violence against Women, p. 15.)

Examples: the Domestic Violence, Crime and Victims Act (2004) of United Kingdom provides for “domestic homicide reviews” which review the death of persons age 16 or over when the death appears to have resulted from violence, abuse, or neglect by a family member, intimate partner, or member of the same household. The review is to be “held with a view to identifying the lessons to be learnt from the death.” Part 1 (9).

In Ireland, the Office of Director of Public Prosecutions (ODPP) conducteding a review of the female homicides during the period 2001-09 where the perpetrator was the victim’s partner, “with a view to determining the nature and quality of interventions with the victim and or perpetrator, and whether opportunities for effective intervention were maximised.” The research found that in approximately two-thirds of these cases, the women had previously suffered domestic violence, and almost two-thirds of the women were killed in their own homes. See Researching the Antecedents to Female Domestic Homicides.

The state law of Montana (USA) has a fatality review commission in the department of justice to review closed domestic homicide cases. The commission meets twice yearly and issues a public report to the legislature every other year. The law states that the commission shall:

(a) examine the trends and patterns of domestic violence-related fatalities in Montana;

(b) educate the public, service providers, and policymakers about domestic violence fatalities and strategies for intervention and prevention; and

(c) recommend policies, practices, and services that may encourage collaboration and reduce fatalities due to domestic violence. Sec. 2-15-2017(2)

See Montana Domestic Violence Fatality Review Commission, Report to the Legislature (January 2011).

Conditions of release

In determining bail in cases of violations of protection orders, 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.

(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 a protection order or for an act of domestic violence.

For example, the Law of Guyana contains the following provisions:

Where the court is required to determine whether to grant bail in respect of an offense under section 32 [violating a protection order or an interim protection order] the court shall take into account, inter alia-

(a) the need to secure the health, safety and well-being of the person named in the protection order;

(b) the need to secure the health, safety and well-being of any relevant child;

(c) any hardship that may be caused to the defendant or to members of the family if bail is not granted;

(d) the defendant’s record with regard to the commission of violent acts and whether there is evidence in the record of physical or psychological abuse to children; and

(e) any other matters which may be relevant to the case in question. Sec. 35(1).

Examples:

Some US states require that certain violent offenders who may be likely to re-offend wear a satellite tracking device so that if they enter certain prohibited zones, such as the areas surrounding the survivor’s home, workplace, or daycare, an alarm is triggered to warn police and the survivor. Advocates report that when an offender knows that they are being monitored and the consequences are swift, homicides related to domestic abuse drop. However, such devices should be used only if the state can ensure a rapid response when an alarm is triggered. Failure to respond in a timely manner will only give a false sense of security to victims and signal to offenders that they can ignore the tracking device. The use of GPS devices cost about $25 USD per day per offender, compared to $75 USD to keep an offender in jail.

For Example, In 2010, The Kentucky, USA, passed a law that provides judges with the authority to order individuals involved in domestic violence cases to wear ankle monitors with a GPS device. The complainaint/survivor carries a device that notifies her when the perpetrator is nearby. The law also requires the court to notify the complainant/survivor of the operations and limitations of the system.

Similarly, legislation in Connecticut, USA, permitted establishment of a pilot program in 2010 allowing courts to order persons charged with violation of a protection order and who has been determined to be a high-risk offender to be subject to electronic monitoring. The monitoring is designed to warn law enforcement, a statewide information collection center and the complainant/survivor when an offender wearing the device comes within a certain distance of her. See also, Ramsey County project will use GPS device on stalkers, Minneapolis StarTribune (November 1, 2012).

The Act Further Protecting Victims of Domestic Violence (2006) of Massachusetts, USA (hereinafter the law of Massachusetts) states:

“Where a defendant has been found in violation of an abuse prevention order under this chapter or a protection order issued by another jurisdiction, the court may, in addition to the penalties provided for in this section after conviction, as an alternative to incarceration and, as a condition of probation, prohibit contact with the victim through the establishment of court defined geographic exclusion zones including, but not limited to, the areas in and around the complainant’s residence, place of employment, and the complainant’s child’s school, and order that the defendant to wear a global positioning satellite tracking device designed to transmit and record the defendant’s location data. If the defendant enters a court defined exclusion zone, the defendant’s location data shall be immediately transmitted to the complainant, and to the police, through an appropriate means including, but not limited to, the telephone, an electronic beeper or a paging device. The global positioning satellite device and its tracking shall be administered by the department of probation. If a court finds that the defendant has entered a geographic exclusion zone, it shall revoke his probation and the defendant shall be fined, imprisoned or both as provided in this section. Based on the defendant’s ability to pay, the court may also order him to pay the monthly costs or portion thereof for monitoring through the global positioning satellite tracking system.” Ch. 418, Sect. 7