Last Updated May 2010
Legislation should clearly state that it is the prosecutor’s responsibility to pursue domestic violence, dowry-related violence and dowry death cases regardless of the level of injury or evidence or relationship between the perpetrator and victim. See: Model Strategies and Practical Measures on the Elimination of Violence Against Women in the Field of Crime Prevention and Criminal Justice (1997) 7(b), which states that primary responsibility for initiating prosecution rests with prosecution authorities and not with complainant/survivors of domestic violence. Drafters must ensure that crimes involving domestic or dowry-related violence are not treated less seriously than other crimes. See: law of Georgia, Ch. V. Art. 6. For example, in the law of Austria, ex officio prosecution is exercised at all levels of injury in cases of violence. See: UN Handbook, 3.8.2.
CASE STUDY: Although India’s Penal Code includes a presumption of dowry death (Article 304(B)) providing certain elements are met, mere suspicion does not suffice for proof. Faulty investigation can fail to trigger this presumption. In Ashok Kumar Rath v. State, 1993 (2) Crimes 940 (Orissa), poor prosecutorial investigation resulted in no proof of dowry death, despite the fact that her death by burning occurred within two years of her marriage. The prosecution’s investigation was faulty in establishing cruelty in connection to dowry demands prior to her death and, for example, failed to interview any villagers about the crime. In Madhubehn v. State of Gujurat, 1993, a complaint issued by the victim’s sister against the prosecution for a similarly deficient investigation led the Court to order the investigation be handled by the Central Bureau of Investigation. See: V.K. Dewan, Law Relating to Offences against Women, 2nd ed., Orient Law House: 2000, p. 147.
By holding violent offenders accountable, prosecutors communicate to the community that domestic violence and dowry-related violence will not be tolerated.
Legislation should require prosecutors to ensure that all available evidence has been collected by the police investigating body, including witness statements and photographs of injuries and the scene of the crime. By relying primarily on the evidence collected by the police rather than the victim’s testimony, prosecutors may be able to reduce the risk of retaliation by an abuser and increase the likelihood of a successful prosecution.
Legislation should mandate that prosecutors investigate the level of risk to domestic and dowry-related violence victims in each case. Other agencies of the criminal justice system, including police and judges, 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 judiciary.
See: Role of Prosecutors, StopVAW, The Advocates for Human Rights; Prosecutorial Reform Efforts, StopVAW, The Advocates for Human Rights; and CPS Policy for Prosecuting Cases of Domestic Violence, UK (March 2009).
Legislation should require that prosecutors keep the complainant/survivors informed of the upcoming legal proceedings and their rights therein, including all of the court support systems in place to protect them. The U.N. Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice in General Assembly Resolution 52/86 states that any woman victim of violence should be “notified of any release of the offender from detention or imprisonment where the safety of the victim in such disclosure outweighs invasion of the offender’s privacy (Article 9(b)).”
Promising practice: The law of Spain creates the position of “Public Prosecutor for cases of Violence against Women,” who must supervise, coordinate, and report on matters and prosecutions in the Violence against Women Courts. Article 70 The legislation also requires prosecutors to notify complainant/survivor of the release of a violent offender from jail and requires prosecutors who dismiss cases of violence against women to tell the complainant/survivor why the case was dismissed.
Legislation should include a pro-prosecution policy in cases where there is probable cause that domestic violence occurred. This will ensure that the violence is treated seriously by prosecutors and allow complainant/survivors to retain some agency about the decision. See: UN Handbook, 3.8.3
CASE STUDY: Laws should ensure that advocates are available to assist persons file a complaint before the magistrate in cases where police do not file a report. India’s Code of Criminal Procedure states that a court shall not take cognizance of an offence under Article 498A “Physical and mental cruelty to woman by husband and in-laws,” of the Penal Code except “upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father's or mother's brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption” (Article 198A). See: Section on Absent Victim Prosecution.
Also, India’s Penal Code carries a presumption that the husband or relative committed the dowry death wherever: a woman dies by burns, bodily injury or other extraordinary circumstances, within seven years of her marriage, and evidence shows that shortly prior to her death her husband or his relative subjected her to harassment or cruelty, “for, in connection with, any demand for dowry” (Article 304(B)). Dowry death is a non-bailable and cognizable crime. India’s Evidence Act carries accompanying legislation, and Article 113(B) addresses presumption as to dowry death: “When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.” In Smt. Shanti v. State of Haryana, AIR 1991 SC 1226, a wife was sent to live with her mother- and sister-in-laws. The in-laws harassed the bride by demanding dowry and cruelty was established. The bride died within seven years of her marriage, and her body was quickly cremated without informing her parents and thus precluding opportunity for a post-mortem examination to determine cause of death. The Supreme Court ruled that this was an unnatural death, whether murder or suicidal. Even if a suicide, this still constitutes an unnatural death for purpose of Article 304(B). The requirement that the death occur within seven years of marriage is overly restrictive, however, as dowry demands and violence can continue to occur after seven years of marriage; in these cases, Article 302 “Punishment for Murder” apply. Laws should not impose a time restriction by which dowry deaths must occur after the marriage.
Drafters must balance the accused’s right to be presumed innocent until proved guilty according to law with the need to hold perpetrators accountable. Lawmakers should use character evidence laws to prove a defendant’s conduct and promote accountability. Legislation should allow the prosecutor to introduce evidence of prior acts by the defendant, including domestic violence, dowry demands, prior burnings or other stove-related accidents, and threats, to prove guilt, motive, preparation, planning, intent, and/or to acknowledge the absence of mistake or accident.
Absent Victim Prosecution
Legislation should provide for the possibility for prosecution of appropriate cases despite the inability or unwillingness of the complainant/survivor to testify. This approach ensures the safety of the complainant/survivor yet offers the support of the criminal justice system. See: UN Handbook, 3.9.5. Legislation should require prosecutors to consider all evidence in a case that might support or corroborate the statement of the complainant/survivor, including evidence of a history of abuse.
Legislation should address dowry deaths where the victim is deceased and provide for the admissibility of and guidelines governing dying declarations these cases. For example, India’s Evidence Act allows written or verbal statements of relevant facts by a person who is dead, cannot be located, or is incapable of giving evidence as relevant facts in cases regarding cause of death:
When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. (Article 32).
Additionally, dying declarations may be admissible under Article 157, “Former statements of witness may be proved to corroborate later testimony as to same Fact:” In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.”
See: Section on Duties of Police; Section on Evidence.
Promising Practice: In Pushpawati v. State, (1986) 2 Cr LJ 1532, the victim of a dowry death made three dying declarations at her brother’s home, to a police officer in the hospital and to the sub-divisional magistrate. Although the second declaration failed to name the accused, the Delhi High Court found sufficient prima facie evidence that a homicide took place to deny the accused bail.
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