- Legislation should state that police and other law enforcement officials are obligated to pursue all cases of domestic violence and dowry-related violence, including scrapes and burns from stove accidents, and injuries involving kerosene, regardless of the level of violence. Legislation should require police and other law enforcement officials to pursue cases of dowry-related violence that involve threats of violence or other harm that would result in injury, death, psychological harm, maldevelopment or deprivation of staples necessary for an adequate standard of living (adequate food, clothing and housing, but not material goods).
- Legislation should also state that police and other law enforcement officials are obligated to pursue any murders or suicides that appear suspicious or follow a history of dowry demands.
CASE STUDY: India’s Criminal Procedure Code requires police to make an investigation wherever information is received that “a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence” (Article 174). The investigating officer is to write a report on the cause of death, describing injuries found on the body and what weapon or instrument may have been used to inflict such wounds. Article 174(3) requires the police officer to send the body to a qualified medical person for examination where:
(i) the case involves suicide by a woman within seven years of her marriage; or
(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman; or
(iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf; or
(iv) there is any doubt regarding the cause of death; or
(v) the police officer for any other reason considers it expedient so to do...”
- Laws requiring police to transfer the bodies of apparent suicides for examination should not limit the number of years by which the suicide must occur. Laws should also mandate officers to transfer these bodies when there is evidence of a history of dowry demands from the spouse or spouse’s relatives.
- Legislation should require the police to give domestic and dowry-related violence requests for help the same priority as other calls involving violence. (See: law of Georgia. For information on assigning priority levels to domestic violence calls, see: The St. Paul Blueprint for Safety, p. 21)
- Legislation should require the police to perform certain duties as part of the investigative process in requests for help in domestic or dowry-related violence cases, including interviewing parties separately, recording the complaint, filing a report, advising the complainant/survivor of her rights, and determining the existence and pattern of dowry demands and gift giving to the parties from their relatives. Laws should not assign police the role of mediation or counseling, but authorize them to make referrals to qualified advocates and service providers.
- For example, the law of Brazil mandates a police protocol which includes a provision requiring police to determine the existence of prior complaints of violence against the aggressor:
“… – command the identification of the aggressor and the addition of the aggressor’s criminal record to the judicial proceedings, indicating the existence of arrest warrant or record of other police occurrences against him…”
Article 12, VI
- Legislation should specifically preclude the use of police warnings to violent offenders or offenders who harass a spouse or her relatives to obtain dowry. Warnings do not promote offender accountability or communicate a message of zero tolerance for violence.
- Legislation should require that police officials develop policies for implementation of domestic violence laws that provide specific directives to front-line law enforcement. For example, the complete and accurate documentation of domestic violence incidents through police reports is an essential component for offender accountability. (See: The St. Paul Blueprint for Safety, p. 31)
- Legislation should require police to conduct a full, thorough and objective investigation in dowry-related violence, domestic violence and suspicious murders or suicides. Also, legislation should mandate that officers investigate any stove burning case. (See: Good Practices in Legislation on “Harmful Practices” against Women, UN DAW (2009), ¶ 3.3.5.2) Legislation should require officers to gather evidence using investigative procedures that minimize intrusion in the victims’ lives, maintain standards for the collection of the best evidence, take into account the unique needs of the victim, maintain respect for the victim’s dignity and integrity, and are in accordance with the rule of law. In dowry-related violence, dowry deaths, and suspicious murders or suicides, police should ensure investigation interviews are conducted with the victim’s relatives and include questions to determine the existence and pattern of dowry demands and gift giving. See: U.N. Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice in UN General Assembly Resolution 52/86 (1997); Text of the draft revised Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice (2009).
(See: Section on Evidence)
- Legislation should authorize police to record the dying declaration as admissible evidence in a dowry death. Legislation should establish standard guidelines for recording a dying declaration. For example, in State v. Laxman Kumar, AIR 1986 SC 250 (India), the investigating police officer recorded the dying declaration of a burned bride. The declaration lacked an explanation why the judge and doctor were unavailable to take the statement, and it lacked a signature by the victim and proof of incapacitation to sign. Given these factors, and the questionability of the victim’s fitness to make the declaration, it was not accepted into evidence. In Dalip Singh v. State of Punjab, AIR 1979 SC 1173, the Supreme Court stated that, while dying declarations recorded by police is less preferred to those recorded by a judge, each case must be looked at individually for the facts and circumstances. In State of Punjab v. Amarjit Singh, where the assistant sub-inspector recorded the victim’s declaration, the court found that the dying declaration could be accepted into evidence, because: the declaration was found to be free from influence; the inspector was found to have correctly recorded the declaration; the declaration was read to the victim; the victim signed the declaration using her thumb imprint, and; the doctor certified the victim was capable of making a statement and signed it, as well. AIR 1988 SC 2013. See: V.K. Dewan, Law Relating to Offences against Women, 2nd Ed., Orient Law House: 2000, p. 138-39. Indian caselaw has resulted in several core standards on dying declarations (citations omitted)
- Corroboration of a dying declaration is not required for admissibility;
- Conviction can be based on a dying declaration without corroboration should the court find it is true and voluntary;
- The court must review the declaration to ensure it is not influenced by instruction or prompts, and the victim was in a fit state to make the statement and able to identify the perpetrators;
Corroboration should be required for a suspicious dying declaration before proceeding further with it; - Rejection of a dying declaration is permissible where the victim was unconscious and unable to make a declaration;
- Lack of details of the offense does not in and of itself disqualify a dying declaration;
Brevity of a declaration is not a reason for rejection of it; rather, the short length of a declaration can be an indication of truth; - An eyewitness account that the victim was in a fit and conscious state to make the declaration may prevail over a medical opinion to that point.
(See: V.K. Dewan, Law Relating to Offences against Women, 2nd Ed., Orient Law House: 2000, p. 136-37)
Example: In Anthony Gonsalves v. The State, 1998 P Cr. L J 489 [Karachi] ANTHONY GONSALVES, the Pakistani appellate court heard the case of a husband who burned his wife. Upon arriving at the hospital, the officer-on-duty obtained verification from the doctor that the victim was in a fit state to make a declaration. He recorded the victim’s statement verbatim, obtained her signature, and subsequently filed it as the first information report (FIR) under Article 154 “Information in Cognizable Cases” of the Code of Criminal Procedure, which states “information relating to the, commission of a cognizable offence if given orally to an officer incharge of a police station, shall reduced to writing by him or under his direction and then read over to the informant and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf: The defendant was convicted and sentenced to life imprisonment.” The court stated that:
“the statement given by deceased wife of the accused in the hospital to [the officer-on-duty], stands amply proved by proper evidence before the Trial Court in which she very clearly implicated the accused and she made it clear that she was set on fire by her husband on account of the quarrel…..”
“In my view, the accused having failed to challenge the statement of P.W.(prosecution witness) [the officer-on-duty], having failed to deny the signatures of [the victim] on the statement recorded by [the officer-on-duty] and produced as Exhibit 29, the Trial Court, proved the fact that [the victim] had given such statement in presence of [the officer-on-duty]. This according to me amounted to a "dying declaration" of the deceased as from all the circumstances, it is clear that victim lady was in a precarious condition in the hospital after receiving burn injuries and the police officer had also found her in such condition that he found it necessary to seek the opinion of doctor and the doctor gave the opinion in writing and, thereafter, her statement was recorded.”
Example: India’s Criminal Procedure Code enables a police officer to continue further investigation when new facts, whether oral or documentary evidence, arise after the Magistrate has received a report on the crime. In K. Uma Maheshwari v. Addl. Director General of Police, CID, I(2003) DMC 348, the court held that police officers in charge of the police station hold express power to further investigate given new evidence. Such further investigation constitutes a continued investigation rather than a re-investigation.
- Legislators should ensure that specialized police units are created for the investigation and prosecution of domestic violence, dowry-related violence and dowry death cases. Laws should provide for standardized training for these police units on these issues, the law and women’s human rights. These units should be women-only units so that complainant/survivors are more likely to seek assistance.
(See Spain’s law; and the Handbook on Effective police responses to violence against women (2010) p. 39)
- Legislation should require police to develop a safety plan for complainant/survivors. See: Handbook on Effective police responses to violence against women (2010), p. 74-75.
- Legislation should provide sanctions for police who fail to implement the provisions, accept bribes from any parties, or otherwise engage in corruption. (See: law of Albania, Article 8) Drafters must ensure that laws and guidelines that govern police conduct are in place. In some cases, the problems with police response lie not in the legislation but rather in police misconduct or obstruction of justice. The Code of Conduct for Law Enforcement Officials proscribes corruption and states that it includes the “commission or omission of an act in the performance of or in connection with one's duties, in response to gifts, promises or incentives demanded or accepted, or the wrongful receipt of these once the act has been committed or omitted” (Art. 7, Commentary (b)). Laws should provide a mechanism to receive communications about police failure to implement these provisions. The drafters should work closely with civil society to ensure effective civilian and independent oversight of the police and to ensure the availability of procedures complaints about police misconduct to an independent investigatory body.
Example: Bangladesh’s Prevention of Oppression Against Women and Children Act 2000, which punishes dowry deaths, addresses police incompetence and misconduct in the investigation of crimes against women and children. Article 18 states:
“v. If, after the completion of a trial, it appears before the Tribunal that, the officer investigating an offence under this Act, has submitted the report without, collecting or considering any evidence which would be helpful in proving the offence, for the purpose of keeping away any person from the liability of the offence, or voluntary negligence in the investigation, or by producing a person as witness who should be produced as the accused, or without examining an important witness, the Tribunal can direct the authority under which he is, to take proper legal action against the investigating officer, regarding his act or negligence as incompetence or in place, mis-conduct.
vi. The Tribunal may, on an application or on the basis of any information, direct the concerning authority to appoint another officer in place of the officer investigating the offence.”
- The UN Model Framework provides a detailed list of police duties within the context of complainant/survivor rights. III A and a list of minimum requirements for a police report in paragraph 23.
- The US Model Code recommends important provisions for the duties of a police officer, including confiscating any weapon or acids involved, assisting the complainant in removing personal effects, and “taking the action necessary to provide for the safety of the victim and any family or household member.” (See: Family Violence: A Model State Code, Sec 204; see also: Vision, Innovation and Professionalism in Policing Violence Against Women and Children (2003), a Council of Europe training book for police)
See UN Handbook, 3.8.1.
Example: The law of Brazil also requires the police to keep the complainant/survivor informed “of the procedural acts related to the aggressor, especially those related to entry and exit from prison…” Article 21.
CASE STUDY: Pakistan’s draft domestic violence bill establishes a Protection Committee, composed of one male or female police officer at the rank of sub-divisional officer, a female SHO and two female councilors from the Tehsil Council. The Protection Committee may file an application for a protection order if the victim so desires, as well as obtain the assistance of any person or authority (Article 16). The committee also is to:
(a) inform the aggrieved person of her or his rights provided under this Act or any other law for the time being in force and the remedies and the help that may be provided;
(b) assist the aggrieved person in obtaining any medical treatment necessitated due to the domestic violence;
(c) if necessary, and with the consent of the aggrieved person, assist the aggrieved person in relocating to a safer place acceptable to the aggrieved person, which may include the house of any relative or family friend or other safe place, if any, established by a service provider;
(d) assist the aggrieved person in the preparation of and filing of any application or report under this Act, the Code or any other law for the time being in force;
(e) file an application for a protection order, if so desired by the aggrieved person;
(f) coordinate with Family Conciliatory Committee in performing its duties; and
(g) keep official record of the incidents of domestic violence in its area of jurisdiction, whether on the basis of information received or suo moto inquiry, irrespective of whether or not action is taken under this Act. Such record shall include:
(i) the first information received about the incident of domestic violence;
(ii) the assistance, if any, offered or provided by the Protection Committee to the aggrieved person;
(iii) where applicable the reason for not taking action under this Act when an incident was brought to the notice of the Protection Committee;
(iv) where applicable, the reason for the aggrieved persons refusal to take assistance from the Protection Committee;
(v) the names and contact details of the service provider, if any, from whom the aggrieved person sought help;
(vi) maintenance of the record of applications, protection orders and the service providers operating in the area of jurisdiction; and
(vii) perform any other duties that may be assigned to the Protection Committee under this Act or the rules made there under. (Article 15).
- Legislation should require the police to inform the complainant/survivor of her rights and options under the law. For example, the law of India requires a police officer to inform the victim of important rights:
5. Duties of police officers, service providers and Magistrate.-A police officer, Protection
Officer, service provider or Magistrate who has received a complaint of domestic violence or is otherwise present at the place of an incident of domestic violence or when the incident of domestic violence is reported to him, shall inform the aggrieved person-
(a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act;
(b) of the availability of services of service providers;
(c) of the availability of services of the Protection Officers;
(d) of her right to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987);
(e) of her right to file a complaint under section 498A of the Indian Penal Code (45 of 1860), wherever relevant:
Provided that nothing in this Act shall be construed in any manner as to relieve a police officer from his duty to proceed in accordance with law upon receipt of information as to the commission of a cognizable offence. Ch. III, 5.
Examples:
- United States: Family Violence: A Model State Code, Section 204, describes a comprehensive written notice that police should be required to give to a complainant/survivor for later review. The Commentary to the Model State Code notes that “An officer may be the first to inform a victim that there are legal and community resources available to assist him or her. Written notice is required because a victim may not be able to recall the particulars of such detailed information given verbally, particularly because the information is transmitted at a time of crisis and turmoil. This written menu of options…permits a victim to study and consider these options after the crisis.”
The notice describes the options which a victim has: filing criminal charges, seeking an order for protection, being taken to safety, obtaining counseling, etc. The notice contains a detailed list of the optional contents for an order for protection. This would be of great assistance to a complainant/survivor who may not be familiar with the purpose of an order for protection. When a complainant/survivor is given a written notice and description of these options, it enables her to consider her options and to decide what is best for her safety and for the safety of her family.
(See: Domestic Violence Legislation and its Implementation: An Analysis for ASEAN Countries Based on International Standards and Good Practices, UNIFEM, June 2009, which states that “Information on rights empowers complainants in negotiating settlements and also allows them to make informed decisions on the legal options that they may want to pursue.” page 22)
- India: India’s domestic violence law rules require Protection Officers to provide a victim with a standard information form available in English or a local language. The form describes the different types of violence (physical, sexual, verbal/emotional, economic), the applicable laws and the forms of relief available to her.
- United States: Ellen Pence, an expert on the Coordinated Community Response and many other aspects of domestic violence law and policy, recommends that police be trained to expect to see families in conflict numerous times, and to expect that a complainant/survivor may not accept their offer of help the first, second, or even third time. Police must be trained to respect the complainant/survivor’s wishes, and to assist her as she requests. (See: The Blueprint for Safety - An Interagency Response to Domestic Violence Crimes (Generic Statewide Version), St. Paul Blueprint)
(See: Council of Europe, The Protection of Women against Violence Recommendation Rec(2002)5 #29)
Lethality or risk assessments
Legislation should mandate that police investigate the level of risk to domestic violence victims in each case of domestic or dowry-related violence. Police should take into account threats from the perpetrator and his family members against the victim and her family members; the presence of weapons or acid, and; previous stove or burn accidents suffered by the victim. A history of dowry demands—whether satisfied or not—should be a part of any lethality or risk assessment. (See: Case Study on Duluth Pocket Card. For additional risk assessment factors, see: Assessing Risk Factors for Intimate Partner Homicide (2003)) Other agencies of the criminal justice system, including prosecutors and judges, should also assess the level of risk to victims. (See section on Lethality or risk assessments below in Criminal Law Provisions and the sections on Duties of prosecutors and Duties of judiciary. See: Assessing Lethal and Extremely Dangerous Behavior (Word))
Mediation or assisted alternative dispute resolution
Legislation should specifically preclude police from offering mediation or assisted alternative dispute resolution services to parties. Police should not attempt to improve relations in the family by offering these services or by mediating a dispute. See: UN Handbook 3.9.1. See section under Duties of judiciary on Mediation or assisted alternative dispute resolution. While there has been some research indicating that mediation may be useful in reducing dowry demands, mediation should never be used in dowry cases where there is violence or threats of violence. Mediation presumes that both parties are on equal standing; in domestic violence cases, however, the offender(s) wields power and control over the victim and her family; the victim may also be fearful of stating her concerns in the presence of the offender. (See: Mediation, Stop VAW, the Advocates for Human Rights)