Duties of Judiciary

last updated April 2015

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 judiciary

Legislation should state that the judiciary must promote accountability for the perpetrator and safety for the complainant/survivor by penalizing violations of orders for protection (see Orders for Protection) and by implementing safety procedures for complainants/survivors in the courtroom such as the presence of security guards, court escorts, and separate waiting rooms for complainants/survivors and violent offenders. See Domestic Violence Safety Plan (“Be Safe at the Courthouse” ).

Legislation should explicitly prohibit the use of warnings to violent offenders as a part of the judicial response to domestic violence.  Warnings do not promote offender accountability or communicate a message of zero tolerance for violence. See Warning provisions, above.

Legislation should provide that judges and court personnel receive continuing education on the causes, nature and extent of domestic violence; practices designed to promote the safety of victims and family members, such as safety plans; the ramifications of domestic violence in custody and visitation decisions; resources available for victims and perpetrators; sensitivity to gender bias and cultural, racial, and sexual issues; and the lethality of domestic violence.

See  Family Violence: A Model State Code, Sec. 510; Child Custody and Visitation Decisions When the Father Has Perpetrated Violence Against the Mother (2005). 

Lethality or risk assessments

Legislation should require for the judiciary to utilize a lethality or risk assessment guide. Other agencies of the criminal justice system, including police and prosecutors, should also assess the level of risk to victims. See section on Lethality and risk assessments below in Criminal Law Provisions and the sections on Duties of police and Duties of prosecutors. (See: Assessing Risk Factors for Intimate Partner Homicide (2003).

 

CASE STUDY: The Domestic Violence Risk Assessment Bench Guide:

The Domestic Violence Risk Assessment Bench Guide is a research-based guide used by judges in Minnesota, USA  at all stages of family,  protection order, civil or and criminal cases involving domestic violence. It includes an assessment and instructions for implementing the assessment. (The assessment can also be used by police, prosecutors, and domestic violence service providers.)

Note: The presence of these factors can indicate elevated risk of serious injury or lethality. The absence of these factors is not, however, evidence of the absence of risk of lethality.

1. Does alleged perpetrator have access to a firearm, or is there a firearm in the home?
2. Has the alleged perpetrator ever used or threatened to use a
weapon against the victim?              
3. Has alleged perpetrator ever attempted to
strangle or choke the victim?
4. Has alleged perpetrator ever
threatened to or tried to kill the victim?
5. Has the physical
violence increased in frequency or severity over the past year?
6. Has alleged perpetrator
forced the victim to have sex?                                 
7. Does alleged perpetrator try to
control most or all of victim’s daily activities?
8. Is alleged perpetrator constantly or violently
jealous?
9. Has alleged perpetrator ever threatened or tried to commit
suicide?
10. Does the
victim believe that the alleged perpetrator will re-assault or attempt to kill the victim? A” no” answer does not indicate a low level of risk, but a “yes” answer is very significant.
11. Are there any pending or prior Orders for Protection, criminal or civil cases involving this alleged perpetrator?

Note: These risk assessment factors are validated by a number of studies. See Campbell, Jacquelyn, et al, “Intimate Partner Violence Risk Assessment Validation Study: The RAVE Study Practitioner Summary and Recommendations: Validation of Tools for Assessing Risk from Violent Intimate Partners”, National Institute of Justice (December, 2005); Heckert and Gondolf, “Battered Women’s Perceptions of Risk Versus Risk Factors and Instruments in Predicting Repeat Reassault”, Journal of Interpersonal Violence Vol 19, No 7 (July 2004).

How To Use The Domestic Violence Risk Assessment Bench Guide

·         Obtain information regarding these factors through all appropriate and available sources.

o    Potential sources include police, victim witness staff, prosecutors, defense attorneys, court administrators, bail evaluators, pre-sentence investigators, probation, custody evaluators and parties.

·         Communicate to practitioners that you expect that complete and timely information on these factors will be provided to the court.

o    This ensures that risk information is both sought for and provided to the court at each stage of the process and that risk assessment processes are institutionalized.

o    Review report forms and practices of others in the legal system to ensure that the risk assessment is as comprehensive as possible.

·         Expect consistent and coordinated responses to domestic violence.

o    Communities whose practitioners enforce court orders, work in concert to hold alleged perpetrators accountable and provide support to victims are the most successful in preventing serious injuries and domestic homicides.

·         Do not elicit safety or risk information from victims in open court.

o    Safety concerns can affect the victim’s ability to provide accurate information in open court.

o    Soliciting information from victims in a private setting (by someone other than the judge) improves the accuracy of information and also serves as an opportunity to provide information and resources to the victim.

·         Provide victims information on risk assessment factors and the option of consulting with confidential advocates.

o    Information and access to advocates improves victim safety and the quality of victims’ risk assessments and, as a result, the court’s own risk assessments.

·         Note that this list of risk factors is not exclusive.

o    The listed factors are the ones most commonly present when the risk of serious harm or death exists.

o    Additional factors exist which assist in prediction of re-assault.

o    Victims may face and fear other risks such as homelessness, poverty, criminal charges, loss of children or family supports.

·         Remember that the level and type of risk can change over time.

o    The most dangerous time period is the days to months after the alleged perpetrator discovers that the victim

§  might attempt to separate from the alleged perpetrator or to terminate the relationship

§  has disclosed or is attempting to disclose the abuse to others, especially in the legal system.                  

Mediation or assisted alternative dispute resolution provision

Legislation should specifically preclude police and legal system officials from offering mediation or assisted alternative dispute resolution services to parties, both before and during legal proceedings in domestic violence cases. Police and judges should not attempt to improve relations in the family by offering these services or by mediating a dispute. See UN Handbook Ch. 3.9.1 and Duties of police.

Mediation reflects an assumption that both parties are equally at fault for the violence. It assumes that both parties have equal bargaining power, yet in reality an abuser may hold tremendous power over a victim. Mediation also removes a domestic violence case from public view and objective judicial scrutiny. 

See Mediation, StopVAW; and Family Violence: A Model State Code, Commentary to Sec. 311.

Examples:

The Law of Spain prohibits the use of mediation in domestic violence cases. Art. 44.

Family Violence: A Model State Code, Sections 311 and 408(A), prohibits judges and other judicial officials from ordering or referring complainants/survivors and respondents in domestic violence situations to mediation. Section 311 prohibits courts from ordering or even referring the parties to mediation for resolution of the issues in a protection order proceeding. The model code prohibits referrals in such cases because the parties may feel compelled to accept a referral and believe that it is the dispute resolution method preferred by the court. Section 408(A) applies in situations where custody or visitation of children is at issue, and states:

1. In a proceeding concerning the custody or visitation of a child, if an order for protection is in effect, the court shall not order mediation or refer either party to mediation.

2. In a proceeding concerning the custody or visitation of a child, if there is an allegation of domestic or family violence and an order for protection is not in effect, the court may order mediation or refer either party to mediation only if:

(a) Mediation is requested by the victim of the alleged domestic or family violence;

(b) Mediation is provided by a certified mediator who is trained in domestic and family violence in a specialized manner that protects the safety of the victim; and

(c) The victim is permitted to have in attendance at mediation a supporting person of his or her choice, including but not limited to an attorney or advocate.

These sections have been adopted in some US states. Section 407 contains a further restriction applicable to mediators, requiring them to screen for the occurrence of domestic or family violence in cases referred or ordered to them by courts. In cases where the mediator concludes that domestic or family violence has occurred, the mediator must not engage the parties in mediation unless:

(a) Mediation is requested by the victim of the alleged domestic or family violence;

(b) Mediation is provided in a specialized manner that protects the safety of the victim by a certified mediator who is trained in domestic and family violence; and

(c) The victim is permitted to have in attendance at mediation a supporting person of his or her choice, including but not limited to an attorney or advocate.

In the article Mediation Fails, But Protection Orders Succeed in Domestic Violence Cases, a retired New York, USA, judge examines data from 1976 through 2009 in the United States that demonstrates the failure of mediation and the success of protection orders for domestic violence.

Timely and expedited proceedings

Legislation should require that legal proceedings occur on a timely basis. Experience has shown, however, that if proceedings are expedited too quickly, a complainant/survivor may withdraw if she feels that it is out of her control. 

For example, in Spain, the Organic Act on Important Reviews of the Code of Criminal Procedure (2002) provides that court hearings in domestic violence cases should come before a judge within 15 days. Some complainants/ survivors have withdrawn from the process, suggesting that the speed of the court hearing might make complainants/survivors feel they aren’t able to make decisions about their relationship at their own pace. See UN Handbook, Ch. 3.9.2.