Civil Orders for Protection
- Drafters should create a protection remedy for widows who are victims of domestic violence in their civil legislation. Widows’ vulnerability to domestic violence may be heightened because of their socio-economic situation and harmful traditional practices. Patriarchal perceptions that view women as subordinate to men are one of the underlying causes of violence against women. Furthermore, traditional notions of family privacy often interfere with effective police intervention and prosecutorial decisions in domestic violence cases. In the case of widows, such perceptions augment the discrimination women may already face with regard to inheritance, land and housing. The economic hardship they face when denied inheritance rights or security of tenure creates additional stress and affects her ability to leave a violent relationship. (See: Other Causes and Complicating Factors, StopVAW, The Advocates for Human Rights)
- Civil protection orders may take the form of emergency or ex parte orders (temporary orders issued without notice to the respondent), which last a short time, or longer-term orders which can require a full hearing before a judge with the respondent present. The Minnesota Law, Domestic Abuse Act of Minnesota, enacted more than thirty years ago, Minn. Stat. §518B.01 Subd.4 was among the first laws providing for domestic abuse protection orders in the world. The protection order remedy has proven to be one of the most effective legal remedies in domestic violence cases. See: Orders for Protection, StopVAW, The Advocates for Human Rights.
- . The order for protection remedy has proven to be one of the most effective legal remedies in domestic violence cases. (See: Orders for Protection, StopVAW, The Advocates for Human Rights)
- Legislation should authorize a judge to order relief that will protect the widow from violence and meet her needs. For example, the UN Model Framework includes these specific provisions for orders for protection:
(a) Restrain the offender/defendant from causing further violence to the victim/plaintiff, her dependents, other relatives and persons who give her assistance from domestic abuse;
(b) Instruct the defendant to vacate the family home, without in any way ruling on the ownership of such property;
(c) Instruct the defendant to continue to pay the rent or mortgage and to pay maintenance to the plaintiff and their common dependents;
(d) Instruct the defendant to hand over the use of an automobile and/or other essential personal effects to the plaintiff;
(e) Regulate the defendant’s access to dependent children;
(f) Restrain the defendant from contacting the plaintiff at work or other places frequented by the plaintiff;
(g) Upon finding that the defendant’s use or possession of a weapon may pose a serious threat of harm to the plaintiff, prohibit the defendant from purchasing, using or possessing a firearm or any such weapon specified by the court;
(h) Instruct the defendant to pay the plaintiff’s medical bills, counselling fees or shelter fees;
(i) Prohibit the unilateral disposition of joint assets;
(j) Inform the plaintiff and the defendant that, if the defendant violates the restraining order, he may be arrested with or without a warrant and criminal charges brought against him;
(k) Inform the plaintiff that, notwithstanding the use of a restraining order under domestic violence legislation, she can request the prosecutor to file a criminal complaint against the defendant;
(l) Inform the plaintiff that, notwithstanding the use of a restraining order under domestic violence legislation, she can activate the civil process and sue for divorce, separation, damages or compensation;
(m) Conduct hearings in camera to protect the privacy of the parties.
The Framework also specifies that non-compliance with an ex parte restraining order shall result in criminal sanctions.
- Remedies should take into account the dynamics of widow maltreatment and allow judges to order the immediate return of children to their mother, and prevent the misappropriating, squandering, or depleting of land and property owned by the parties or property from the marriage used or managed by the widow.
Promising Practice: India’s domestic violence law also includes a definition of “economic abuse:” (a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
The law also authorizes the magistrate to issue a protection order that also prohibits the perpetrator from “alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate” (Article 18(e)).