Duties of Judiciary

Last Updated May, 2010

Duties of Judiciary

Legislation should state that the judiciary must promote accountability for the perpetrator and safety for the complainant/survivor by instituting penalties for violations of orders for protection (see section on Orders for Protection) and by implementing safety procedures for complainant/survivors in the courtroom such as the presence of security guards, court escorts, and separate waiting rooms for complainant/survivors and violent offenders. For more information, see Domestic Violence Safety Plan (“Be Safe at the Courthouse” section). See also: Form V, Safety Plan, Protection of Women from Domestic Violence Rules, 2006, India.

Legislation should specifically preclude the use of warnings to violent offenders as a part of the judicial response to domestic and dowry-related violence.  Warnings do not promote offender accountability or communicate a message of zero tolerance for violence. See section on Warning provisions. 

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

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 include a requirement 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 in use by Minnesota, USA, judges at all stages of family, Order for Protection, civil or criminal cases which involve 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.) Policymakers should adapt this guide to meet the particular dynamics of dowry-related violence, for example, following the suggestions in capital letters.

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 ACID, or is there a firearm OR ACID in the home?                                               

2.              Has the alleged perpetrator ever used or threatened to use a weapon against or burn the victim?                                                                                   

3.              Has alleged perpetrator ever attempted to strangle, BURN 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 THE VICTIM SUFFERED ANY STOVE OR BURN “ACCIDENTS?”

7.              Has alleged perpetrator forced the victim to have sex?                                   

8.              Does alleged perpetrator try to control most or all of victim’s daily activities? DOES THE PERPETRATOR OR HIS RELATIVES DEPRIVE THE VICTIM OF FOOD AND CLOTHING OR RESTRICT HER FREEDOM OF MOVEMENT?

9.              Is alleged perpetrator constantly or violently jealous?

10.           Has alleged perpetrator ever threatened or tried to commit suicide?

11.           Does the victim OR HER RELATIVES 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.

12.           Are there any pending or prior Orders for Protection, criminal or civil cases involving this alleged perpetrator?

13.           Is there a history of dowry demands from the perpetrator or his relatives, or a history of gift giving from the victim’s family to the perpetrator or his relatives?  IF SO, WHAT IS THE HISTORY OF MET AND UNMET DOWRY DEMANDS?

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

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

  • 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.
  • 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 AND DOWRY-RELATED violence.

  • 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.

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

  • 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.

  • The listed factors are the ones most commonly present when the risk of serious harm or death exists.
  • Additional factors exist which assist in prediction of re-assault.
  • Victims may face and fear other risks such as homelessness, poverty, criminal charges, loss of children or family supports, AND LOSS OF PERSONAL PROPERTY, DOWRY AND OTHER ASSETS.

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

  • 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.

Risk levels can also increase when dowry demands are unmet.                                                        

Mediation or assisted alternative dispute resolution provisions 

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 and dowry-related 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 3.9.1 and section on Duties of police. Also, mediation, counseling and alternative dispute resolution should never be a prerequisite to legal proceedings where domestic violence or dowry-related violence is involved.

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 or dowry-related violence case from public view and objective judicial scrutiny. 

See: Mediation, StopVAW, The Advocates for Human Rights; and

Family Violence:  A Model State Code, Sec. 311

Promising practice: Spain’s law prohibits the use of mediation in domestic violence cases. (Art. 44)

CASE STUDY: Under Article 14 of India’s domestic violence law, the judge may direct the victim or perpetrator to undergo counseling either together or singly. In T. Vineed v. Manju S. Nair, 2008(1)KLJ 525, the court appointed a counselor to mediate child custody issues in a case involving an application under the domestic violence law and divorce proceedings on the basis of cruelty. A settlement was reached with the counselor, and the High Court of Kerala ruled that matrimonial cases must exhaust court-mediated settlement option prior to starting the legal proceedings. See: Lawyers Collective, Staying Alive: Second Monitoring & Evaluation Report 2008 on the Protection of Women from Domestic Violence Act, 2005, 2008, p. 64-65. Legislation should disallow mediation or court-mediated settlements in any cases involving domestic violence. See: Section on Mediation; Mediation, StopVAW, The Advocates for Human Rights.

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) provided that court hearings in domestic violence cases should come before a judge within 15 days.  Some complainant/survivors withdrew from the process, suggesting that the speed of the court hearing might make the complainant/survivor feel they aren’t able to make decisions about their relationship at their own pace.  See UN Handbook, 3.9.2. 

Promising Practice: Some governments have established special courts to help expedite proceedings in civil and criminal cases. The UK has domestic violence courts across the country to coordinate and improve the responses of police, prosecutors, court staff, the probation service and specialist support services. Criminal justice staff are trained in domestic violence, courts intentionally group cases together to focus resources for scheduling, and the courts provide Independent Domestic Violence Advisors for support. Bangladesh has established at least one Nari O Shishu Nirjaatan Daman Tribunal in each district to try offences under the Prevention of Oppression Against Women and Children Act 2000. See: Specialized Domestic Violence Court Systems, StopVAW, The Advocates for Human Rights.