Last updated July 2013
In partnership with UN Women, The Advocates for Human Rights created the following sections for UN Women's Virtual Knowledge Centre to End Violence against Women and Girls. This section, along with sections addressing other forms of violence against women and girls, may be found under Legislation at www.endvawnow.org.
Duties of police officers
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...”
“… – 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
Example: The law of Namibia, which requires the Inspector-General to issue specific directives on the duties of police officers, report to the responsible Minister on both the directives and the training provided to the police, and also to keep statistics from reports on domestic violence reports and to forward them to the relevant Minister. Part IV 26 and 27.
(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.
(See Spain’s law; and the Handbook on Effective police responses to violence against women (2010) p. 39)
Example: The law of Zimbabwe provides that “where a complainant so desires, the statement of the nature of the domestic violence shall be taken by a police officer of the same sex as that of the complainant.” Section 5
CASE STUDY: India established approximately 300 all-women police stations to receive complaints about domestic violence and dowry-related violence (as of 2005). These stations have been instrumental in increasing public awareness, encouraging women to come forward and documenting complaints, but there have been concerns with regard to police training and response. Drafters should ensure that all police undergo training on domestic violence and dowry-related violence and file a police report for documentation. (See: Improving Law Enforcement Investigation Techniques (Word | PDF)) Similarly, Brazil also has all-women police stations. Also, the State Women’s Commission in India recommended that every police station house counseling cells for addressing domestic violence under Indian Penal Code §498A on physical and mental cruelty to a woman by her husband and in-laws. The Commission recommends counseling couples, but it is important that counselors see and advise women without their spouse if they choose. Counselors should also avoid advocating mediation or reconciliation, and instead focus on providing women with information on the law, its remedies and the options and resources available to them. (See: Section 498A-Used or Misused? SanLaap and Centre for Social Research, p. 52 (2005))
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.”
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).
CASE STUDY: The Duluth Police Pocket Card is a laminated pocket card which was developed by police in Duluth, Minnesota, with protocol to document domestic violence incidents. Policymakers may wish to adapt this card to address the dynamics of dowry-related violence and deaths. For example, police should interview all parties and witnesses, as well as the victim’s family members, and police should document the history of any dowry, dowry demands, and gifts from the victim’s family members to the offender or offender’s relatives (¶ 4 of the pocket card). Police should also document any history or pattern of dowry demands between the parties and their families (¶ 11 of the pocket card). Police should also pose risk questions to the victim’s relatives where there is a history or pattern of dowry demands and gifts to the offender or his family. When documenting history of prior domestic abuse, police should also ask about and document any stove accidents or burn accidents.
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.
(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 prosecutorsand 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)
Determining the predominant aggressor
Legislation should require the police to evaluate each claim of violence separately in situations where both parties claim violence. The police must look beyond the visual evidence and consider the context of the act of violence by identifying controlling behavior in the predominant aggressor and fear in the victim. Police should also realize additional or other predominant aggressors may not reside in the marital home, such as a spouse’s relatives who inflict or threaten violence against the victim.
Police must be able to recognize the tactics of power and control. They must consider such issues as: the severity of injuries inflicted by both parties, the difference in size and weight of the parties, the demeanor of the parties, any prior complaints of violence, claims of self-defense and the likelihood of further injury to a party. Police should take into account patterns of deprivation of clothing and food, or restrictions on the victim’s freedom of movement.
The determination of the predominant aggressor, and the reasons for that determination, must be included in the police report. Otherwise, offenders will successfully manipulate the system and victims will not be protected. As a result, victims may not contact police the next time violence occurs. (See the Duluth Pocket Card Case Study, above.)
If the predominant aggressor is misidentified, there could be important legal consequences for the victim, such as the denial of custody of children, of housing rights and of immigration rights. Additionally, without being identified as a victim, a person would not be eligible for shelter or other forms of aid mandated by statute.
Legislation should also address situations where there is no claim of interpersonal violence, but rather, an allegation that the woman’s injuries are due to accidents. Police should be aware of common explanations that offenders use to explain dowry-related injuries, such as stove explosions. Also, police must be able to recognize burn injuries that are reflective or not of genuine accidents, or they must be mandated to send the victim to an authorized medical examiner for a determination. For example, an authentic stove accident will often result in burns to a maximum of 30% of the body on the limbs and stomach. Intentionally-inflicted stove burns can result in injuries on up to 85% of the victim’s body.
CASE STUDY: In Lichhama Devi v. State of Rajasthan, AIR 1988 SC 1785 (India), the police investigation of a burning death focused only on the mother-in-law and not the victim’s husband. Yet, the mother-in-law stated her son may have been guilty, and neighbors recounted the husband being in the kitchen and running downstairs while his wife was on fire. Moreover, the fact that the husband failed to assist her while she was on fire, did not transport his wife to the hospital, and did nothing to obtain a needed blood transfusion for her indicated some involvement with her death. Police, however, only pursued prosecution against the mother-in-law, and the court deplored the investigating body’s lack of diligence.
The Criminal Domestic Violence law of South Carolina, USA, includes the following provisions on determining the primary aggressor:
(D) If a law enforcement officer receives conflicting complaints of domestic or family violence from two or more household members involving an incident of domestic or family violence, the officer must evaluate each complaint separately to determine who was the primary aggressor. If the officer determines that one person was the primary physical aggressor, the officer must not arrest the other person accused of having committed domestic or family violence. In determining whether a person is the primary aggressor, the officer must consider the following factors and any other factors he considers relevant:
(1) prior complaints of domestic or family violence;
(2) the relative severity of the injuries inflicted on each person taking into account injuries alleged which may not be easily visible at the time of the investigation;
(3) the likelihood of future injury to each person;
(4) whether one of the persons acted in self-defense; and
(5) household member accounts regarding the history of domestic violence.
(E) A law enforcement officer must not threaten, suggest, or otherwise indicate the possible arrest of all parties to discourage a party's requests for intervention by law enforcement.
(F) A law enforcement officer who arrests two or more persons for a crime involving domestic or family violence must include the grounds for arresting both parties in the written incident report, and must include a statement in the report that the officer attempted to determine which party was the primary aggressor pursuant to this section and was unable to make a determination based upon the evidence available at the time of the arrest.
(G) When two or more household members are charged with a crime involving domestic or family violence arising from the same incident and the court finds that one party was the primary aggressor pursuant to this section, the court, if appropriate, may dismiss charges against the other party or parties.Section 16-25-70
(See: Family Violence: A Model State Code Sec 205 (B); and Determining the Predominant Aggressor, StopVAW, The Advocates for Human Rights)
Probable cause standard of arrest
Drafters should consider a probable cause standard of arrest, which allows police to arrest and detain an offender if they determine that there is probable cause that a crime has occurred even if they did not witness the offence. (See: Minnesota 518B.01 subdv. 14(d)(2)(e) and law of South Carolina, Sec. 16-25-70 (A))
See: Law Enforcement Reform Efforts, StopVAW, The Advocates for Human Rights.
Laws should not allow for anticipatory bail in dowry-related and domestic violence cases involving high-level injuries or lethality or in dowry deaths.
Example: In Samunder Singh v. State of Rajasthan, AIR 1987 SC 737, the Supreme Court of India ruled that anticipatory bail, which allows a suspect to seek bail in anticipation of an arrest for the commission of a non-bailable offense, was improperly granted to the defendant in the case of a dowry death. The judge stated that the High Court improperly granted anticipatory bail when would likely give rise to prejudice by its nature and timing. In this case, concerning the unnatural death of a woman in her father-in-law’s home, the Court stated “the High Court should not have exercised its jurisdiction to release the accused on anticipatory bail in disregard of the magnitude and seriousness of the matter.”
CASE STUDY: Article 41 of India’s Code of Criminal Procedure authorizes a police officer to make a warrantless arrest of anyone “concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned.” These include offenses concerning physical and mental cruelty to woman by husband and in-laws (Article 498A), criminal breach of trust for entrustment of dominion, for misappropriation of personal property by husband or in-laws (Articles 405), dowry death (Article 304B), abetment of suicide (Article 306), and attempted murder (Article 307). But note that offenses committed under the Dowry Prohibition Act are non-cognizable and require a Magistrate order for arrest. In M.C. Abraham v. State of Maharashtra (2003) 2 SCC 649: 2003(1) RCR (Criminal) 453 (SC), the Court held that discretion to arrest should be exercised cautiously in a cognizable offense, with regard to the nature of the crime and type of person accused; the court lacks authority to order police to arrest when an investigating officer decides not to make an arrest, and; rejection of anticipatory bail does not constitute a reason for immediate arrest.
Laws should focus grounds for arrest on probable cause and on creating simple and comprehensive arrest authority to facilitate decisive intervention in arrest decisions and diminish the influence of discretionary factors. For example, in cases involving simple or minor injuries, "probable cause" arrest policies allow police officers to make arrests based on the presence of evidence (such as damaged property, visible injuries, or a frightened woman) that would lead to the conclusion that an assault had occurred. Creating broad authority, such as a presumptive arrest, would authorize arrest of perpetrators of violence unless there are “clear and compelling reasons” not to arrest. (See: Family Violence: A Model State Code, Advisory Committee of the Conrad N. Hilton Foundation Model Code Project of the Family Violence Project, 1994, Section 205(A), Commentary)
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