Last updated May, 2010
Criminal penalties should be increased for repeated domestic and dowry-related violence offenses, even if they involve low-level injuries. See: Family Violence: A Model State Code, Sec. 203. Legislation should provide that sentencing be enhanced for repeat offenses, including repeated violations of orders for protection. Andorra’s approach is to states that domestic violence repeat offenders shall receive a term of imprisonment irrespective of any other penalty that may be imposed on account of the injuries caused in each instance. The Criminal Code (2005) of Andorra, Article 114.
For example, the law of Malaysia provides increased penalties for violations of protection orders and for violations that involved violence, and also allows the court to make a new order for protection:
8. (1) Any person who willfully contravenes a protection order or any provision thereof shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding two thousand ringgit or to imprisonment for a term not exceeding six months or to both.
(2) Any person who willfully contravenes a protection order by using violence on a protected person shall, on conviction, be liable to a fine not exceeding four thousand ringgit or to imprisonment for a term not exceeding one year or to both.
(3) Any person who is convicted for a second or subsequent violation of a protection order under subsection (2) shall be punished with imprisonment for a period of not less than seventy-two hours and not more than two years, and shall also be liable to a fine not exceeding five thousand ringgit.
(4) For the purposes of this section a "protection order" includes an interim protection order.
9. Where a person against whom a protection order has been made contravenes the protection order, the court may, in addition to any penalty provided for under section 8, make or make anew, as the case may be, any one or more of the orders under subsection 6(1), to commence from such date as is specified in such new order. Part II, 8 and 9.
Legislation should specify that penalties for crimes involving domestic and dowry-related violence should be more severe than similar non-domestic violence- and dowry-related crimes. This sends the important message that the state will treat a domestic or dowry-related violence crime very seriously. For example, the Criminal Code (2007) of Hungary requires higher penalties for a person who harasses their ex-spouse or their child than if they harass someone else. Section 176/A. Amendments to the Criminal Code (1994) of France provide higher penalties for certain acts of torture or violence when committed by a spouse or cohabitee of the victim. Articles 222-3. 222-8, 222-10 and 222-11. See: the Criminal Code (2002 ) of Moldova,which provides higher penalties for murder and severe and deliberate acts of violence against a spouse or close relative. Articles 145, 150, 151, 152 and 154. It also provides a higher penalty for inducing a spouse or close relative to commit suicide. Article 150. The Criminal Code (2004) of Romania provides for a higher penalty for the murder of a spouse or close relative (Article 179) or the rape of a family member. Article 217.
Promising practice: In Minnesota, USA, as well, these crimes include higher penalties than the same crime committed outside a domestic relationship: domestic assault which includes strangulation; murder while committing domestic violence or if the perpetrator has engaged in a past pattern of domestic violence; and unintentional murder when the perpetrator is restrained under an OFP and the victim was designated to receive protection under that order. See: Minn.Stat.§609.185(a)(6); and Minn.Stat.§609.19 Subd.2(2).
CASE STUDY: India’s Penal Code imposes either death or life imprisonment for murder (Article 302). It imposes a lighter sentence, however, for dowry deaths, which ranges from seven years to life imprisonment (Article 342(b)(2)). Legislation should impose sentences for dowry deaths that are commensurate with other first-degree murders. Also, legislation should not impose the death penalty as a sentence so as to respect the international trend toward abolition and to prevent non-conviction judgments as a means of avoiding sentencing a defendant to death.
Legislation should include guidelines for appropriate sentences for domestic violence and dowry-related offenses. For a list of goals in sentencing, 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, March 2009, 17(a). Legislation should provide that sentencing guidelines reflect the gravity of the offense. For example, Article 11 of Bangladesh’s Prevention of Oppression Against Women and Children Act 2000 punishes dowry injury and death by imprisonment of five to fourteen years plus a fine, and dowry death by life imprisonment plus a fine: “the husband of a woman or his father, mother, guardian or any other person on behalf of the husband, causes death or attempts to cause death, cause hurt or attempts to cause hurt to the woman, the husband, the father, mother guardian, relative or any other person on his behalf, shall; i. for causing death or attempt for causing death, be punished with transportation for life and also with fine, in both case; ii. be punished with transportation for life for causing hurt and with imprisonment for either description which may extend to fourteen years but not less than five years of rigorous punishment in case of attempt to hurt and also with fine in both the case.”
Legislation should increase the punishment if the violence is accompanied by dowry demands, dowry-related harassment or is accomplished using a weapon, burning or with acid. The Criminal Code of Serbia increases the term of imprisonment if domestic violence is committed with a weapon or if death results. Article 194. India’s Penal Code punishes voluntarily causing grievous hurt by seven years’ imprisonment and a fine (Article 325), and increases the punishment to a maximum sentence of ten years and a fine for voluntarily causing grievous hurt by dangerous weapons or means, such as “by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood” (Article 326).
For example, South Carolina, USA, has more severe penalties for “criminal domestic violence of a high and aggravated nature” when one of the following occurs:
The person commits: (1) an assault and battery which involves the use of a deadly weapon or results in serious bodily injury to the victim; or (2) an assault, with or without an accompanying battery, which would reasonably cause a person to fear imminent serious bodily injury or death. Section 16-25-65 (A)
Legislation should allow an option for a judge to eliminate a fine if it would create a financial burden for the complainant/survivor or else direct that the fine be remitted to the victim or her heirs. Although fines are commonly issued as a part of sentencing perpetrators, fines can present a significant problem for a complainant/survivor who must make use of the assets of the perpetrator to feed and house a family. If dowry-related offenses do impose a fine, legislation should provide that the money from those fines is remitted to the victim in her name. Legislation should include victim restitution claims as part of a sentencing scheme in dowry-related violence and deaths. Laws should direct the prosecutor to assign officials to assist the victim in seeking restitution and making an itemized claim for damaged or lost property, medical bills, and other losses as part of the criminal sentence. Laws should authorize judges to order the defendant to pay such restitution to the victim as a part of, but not as a substitute for, a prison sentence.
Legislation should require judges to consider victim impact statements in all cases of domestic violence.
Promising Practice: Pakistan’s draft domestic violence bill criminalizes a violation of a protection order by the accused and imposes a prison sentence of 6 months to one year and a fine of at least one hundred thousand rupees. Where a person commits multiple violations of a protection order, the sentence is imprisonment between one to two years and a fine of at least two hundred thousand rupees. In both cases, the court is mandated to order that the fine be given to the aggrieved person. (Article 13(1)-(2)).
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