Warning provisions
- Legislation should specifically preclude the use of warnings as a prerequisite for filing for a protection order, or be required as required evidence for obtaining a protection order.
- Legislation should specifically preclude the use of warnings to violent offenders as a part of the police or judicial response to domestic violence and dowry-related violence. Warnings do not promote offender accountability or communicate a message of zero tolerance for violence. See: Duties of police officers and Duties of judiciary, below.
Time limits on orders for protection
- Legislation should provide that orders for protection may be left in place for a minimum of one year.
- Ideally, a protection order should be left in place permanently, and only terminated by a finding by a court, based on clear evidence, that there is no longer any danger to the complainant/survivor or that the demands for dowry will cease. That way, a complainant/survivor does not have to appear in court and possibly confront her abuser on a regular basis. The law should state that the termination of an order for protection must be the responsibility of the court.
- The law of Minnesota, USA, allows orders for protection to be extended for up to 50 years in certain situations:
Relief granted by the order for protection may be for a period of up to 50 years, if the court finds: (1) the respondent violated a prior or existing order for protection on two or more occasions; or (2) the petitioner has had two or more orders for protection in effect against the same respondent. Subd. 6a (b)
Example: The Protection of Women from Domestic Violence Act (2005) of India states that a protection order shall be in force until the complainant/survivor applies for discharge, or until the Magistrate, upon receipt of an application from the complainant/survivor or the respondent, is satisfied that there is a change in the circumstances, requiring alteration, modification or revocation of the protection order. Ch. IV, 25. Likewise, the Pakistan draft Domestic Violence (Prevention and Protection) Act, 2009 also states that a protection order is to remain in effect until the victim applies for its discharge or until the court receives information from the victim or accused that that circumstances have changed to merit alteration, modification or revocation. Either of those two circumstances would not, however, prevent a victim from applying for a new protection order after discharge of a previous one (Article 12).
Other key provisions in legislation on post-hearing orders for protection
- Legislation on post-hearing orders for protection should:
- Not allow officials to remove complainant/survivor from her home against her will.
- Not allow for mutual orders for protection. A mutual OFP implies that both parties are responsible for the violence and it makes both parties liable for violations of the order. Advocates found that police faced with a mutual order often did not determine who was the primary aggressor and consequently either failed to enforce the order or arrested both parties. When a mutual OFP was enforced against a complainant/survivor, the consequences were dire: the complainant/survivor might lose child custody or her employment, or be evicted by a landlord. (See: The Toolkit to End Violence Against Women, Ch. 3; StopVAW, The Advocates for Human Rights)
- State that the offender may not obtain a mutual order for protection against the complainant/survivor for economic violence because she or her family has failed to meet the demands for dowry (where order for protection laws include “economic violence” in domestic violence definitions).(See: UN Handbook 3.10.8.1; and Family Violence: A Model State Code, Sec 310)
- Not allow officials to cite complainant/survivors for “provocative behavior.” See: UN Handbook 3.10.8.1.
- Orders for protection should be effective and enforceable throughout a country.
Examples: The law of Philippines has a provision which mandates that orders for protection are enforceable throughout the nation. The law of India likewise contains a provision that states that an order for protection is enforceable throughout the country (Article 27(2)).
- Orders for protection should be part of a national registration system so that police and law enforcement personnel can quickly and efficiently determine the existence of the order. 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. IV, 16 (h)
- Legislation should not contain any references to mandatory treatment for rehabilitation of complainant/survivors. Rather, legislation should provide for counseling services for a complainant/survivor if she determines she needs them. Many domestic violence complainant/survivors do not need psychiatric counseling or rehabilitative services, with the exception of employment services. Rehabilitation services which are offered to victims are provided only at the request of the victim. These services should never be compulsory or imposed on victims by government agencies or officials. Counseling should not be a requirement in domestic violence cases involving child custody. Laws should not use counseling to mediate or resolve the matter between the parties. Laws should not make counseling a precondition to obtaining an order for protection remedy from the court.
- Legislation should provide that a complainant/survivor may seek a protection order without the aid of an attorney. Laws should also address the role of advocates. See: Section on Advocates.
Example: Laws that define the role of advocates and provide complainant/survivors with advocate assistance and access to a standardized application form will facilitate her access to protection orders. India’s Protection of Women from Domestic Violence Rules, 2006 include Form II, a template application form to the magistrate, which allows the applicant to check the forms of relief she is seeking. Form I is a template domestic incident report form, which provides sections for documenting different forms of domestic violence, as well as the date, place and time; perpetrator of the domestic violence; types of violence and other remarks. A section on dowry-related harassment is included, requesting details on demands for dowry made, other dowry details and allows for the applicant to append a description of dowry items and stridhan to the form. Standardized forms such as these that prompt the applicant on details of the violence, including background on dowry, will help facilitate the protection order process.