Law Enforcement, Prosecutions and the Judiciary
last updated 3 February 2009

Early in the global movement to end domestic violence, advocates recognized the law and legal enforcement mechanisms as critical components of the effort to keep women safe and hold offenders accountable for violent behavior. In the past three decades, law reform and the changing of the attitudes of legal professionals has been a major focus of domestic violence advocacy. From R. Emerson Dobash & Russel P. Dobash, Women, Violence and Social Change 174-75 (1992). The most effective way to implement such legal reforms is within the context of a coordinated community response. That is, legal professionals should communicate and cooperate with each other and other members of the community including medical professionals, housing agencies, social service agencies and domestic violence advocates. This has proven to be the most effective way to promote victim safety and offender accountability.

Virtually all countries in the CEE/FSU criminalize assault. However, consistent with other regions in the world, few legal systems expressly recognize domestic violence as criminal conduct. Criminal and administrative laws that generally prohibit intentional injury may result in negative consequences for victims of domestic violence. For example, women frequently seek to withdraw their complaints or ask for leniency when they learn that their abuser may be punished by a monetary fine or imprisoned and unable to support the family. The Special Rapporteur has recognized that "[t]here is an emerging consensus that States in fighting domestic violence should enact special legislation" on domestic violence, ideally, such legislation should "combine[] both criminal and civil remedies," such as civil orders for protection. From 2003 Report of the Special Rapporteur on Violence Against Women, Developments in the area of violence against women (1994-2002) (E/CN.4/2003/75 and Corr.1) (6 January 2003).

In many parts of the world, women also encounter obstacles when they attempt to pursue prosecution of domestic assaults. Prosecutors are often reluctant to enforce laws that prohibit assault in domestic violence cases. In addition, courts often fail to assess proper penalties. Legal professionals in countries around the region have expressed reluctance to "harm" family relations by sentencing a batterer to serve jail time. Often, men receive only a suspended sentence or a fine after a conviction for domestic assault. In the case of a fine, women are generally responsible for ensuring that the fine is paid because of their relationships to the perpetrators. From MAHR, Domestic Violence in Armenia 3 (2000); MAHR, Domestic Violence in Uzbekistan 25 (2000).

In the past thirty years, advocates around the world have had many successes in their efforts to change both criminal justice laws to better protect victims and hold offenders accountable. Yet while reform of the criminal justice system can be instrumental in providing battered women with options and holding batterers accountable, the criminal justice system does not hold all the answers for all women. Avalon, for example, has emphasized the tension between the approach of the battered women's movement and the approach of the criminal justice system to domestic violence. She explains that the battered women's movement uses a gender-based analysis that provides that the "root cause of battering lies not in individual pathology but in the culturally supported belief that men have the right to exert superiority over women through any means available." The criminal justice system, on the other hand, uses a gender-neutral analysis that provides that violence in the family "is equally destructive regardless of which gender commits the violence, against whom, and with what intent." As Avalon explains:

This ignores the context in which violence occurs, the pattern of abuse, and non-violent, abusive tactics batterers employ to control their partners. . . . So, in as much as the law holds gender-neutrality as its standard, the agenda of the legal system is fundamentally at odds with the agenda of the battered women's movement.
In other words, criminal justice system reforms—as well-meant as they may be—can often have unintended consequences for women because these reforms still involve actors within the criminal justice system "applying a gender-neutral standard in a system full of bias to address a gender-specific problem." From Stephanie Avalon, Advocacy and the Battered Women's Movement (October 1999) (emphasis added).

Around the world, advocates for battered women have formed cooperative relationships with actors within the criminal justice system. For example, some communities Battering relationships, on the other hand, "pose immediate threats, are complex, and involve a pattern of ongoing abuse." The legal system, focused on particular incidents and often unable to provide the relief necessary, sometimes is simply ill-equipped to respond to the immediate and long-term needs of a battered woman. From Stephanie Avalon, Advocacy and the Battered Women's Movement (October 1999).

Additional discussion of laws related to domestic violence is provided in the Law and Policy section of this website. See also the United Nations expert group recommendation regarding the role of law enforcement, prosecutions and the judiciary in domestic violence cases in the 2008 report entitled, "Good practices in legislation on violence against women." For the Russian version of the report recommendations, click here.

For a list of research and reports on domestic violence and criminal law, click here.