I. Introduction

                Countries in Central and Eastern Europe and the Former Soviet Union (CEE/FSU) may find that the Domestic Abuse No Contact Order (DANCO) is an effective way to protect victim safety during criminal proceedings, in addition to the civil remedy which is provided in civil Orders for Protection. Experts agree that the issuance of a DANCO must be consistently communicated to law enforcement officials, and clearly place the authority to seek a DANCO with the prosecutor, while also allowing the victim a chance to express her wishes.

In Minnesota, a DANCO may be used in certain criminal proceedings to achieve similar ends as a civil Order for Protection (OFP), by making the defendant subject to prosecution for contacting a victim of the defendant’s crime. Minnesota is one of many states whose statutes either authorize or mandate the issuance of a protective order as a condition of bail or pretrial release in a criminal proceeding; others include Alabama, Alaska, Colorado, Idaho, Illinois, Kentucky, Louisiana, Maine, Montana, New Hampshire, New Jersey, New York, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Utah, Washington and Wisconsin.[1] This article will first explain the content of the Minnesota Statutes relating to DANCOs, and then discuss problems that have come up as the DANCO has been used in Minnesota. While there have been some problems with the implementation of the DANCO in Minnesota, they are solvable.

II. The DANCO in the Minnesota Statutes

                A Domestic Abuse No Contact Order (DANCO) is a court order issued against a defendant in a criminal proceeding as specified in Chapter 518B.01, Subdivision 22 of the Minnesota Statutes. The criminal proceeding may be for domestic abuse, harassment or stalking committed against a family or household member, violation of an order for protection, or violation of a prior DANCO.[2] A petition for an Order For Protection (OFP) may only be filed in a case of domestic abuse.[3] However, an OFP may also contain remedies for issues related to the domestic violence, such as child support. Certain CEE/FSU countries allow such additional remedies in their domestic violence laws.[4] A DANCO does not address these remedies. A DANCO may be issued before final disposition of the case or after sentencing. A person who knowingly violates a DANCO is guilty of a misdemeanor, or a gross misdemeanor if the violation is within ten years of “a previous qualified domestic violence-related offense conviction or adjudication of delinquency.”[5]

                When a peace officer has probable cause to believe a person has violated a DANCO, the statute mandates that the officer arrest the person without warrant and take him or her into custody. This occurs even when the violation did not take place in the presence of the officer, as long as the officer can verify the existence of the DANCO.[6]

                A peace officer may not issue a citation in lieu of arrest and detention for violation of a DANCO.[7] Once arrested, the individual must be brought to the county jail or police station, where the sheriff or the officer in charge of the station will issue a citation in lieu of continued detention unless it reasonably appears that release of the person “(1) poses a threat to the alleged victim or another family or household member, (2) poses a threat to public safety, or (3) involves a substantial likelihood the arrested person will fail to appear at subsequent proceedings.”[8] These provisions, especially the mandatory consideration of safety factors prior to issuance of a citation by the sheriff or officer in charge, should help to ensure the security of the people intended to be protected by the DANCO.

                If a citation is not issued, the person charged must be brought before a court without unnecessary delay.[9] There, the judge must consider the same factors listed above in order to determine pretrial release conditions, and make findings on the record.[10] The judge may impose various conditions of release or bail designed to protect the alleged victim’s safety and ensure the person’s appearance at future proceedings.[11]

                Immediately after the issuance of a citation in lieu of continued detention or the entry of an order for release, but before the person is released, the agency having custody of the individual must make a reasonable, good faith effort to orally provide certain relevant information on the person’s release to the alleged victim, other local law enforcement agencies involved in the case, and at the victim’s request, any local battered women’s or sexual assault program.[12] In cases of an order for conditional release, the information must also be provided in writing, along with a copy of the order, as soon as practicable.[13] In addition, the victim must be notified when a hearing is scheduled to review the possibility of release from pretrial detention.[14] Like the consideration of safety issues prior to release and the imposition of conditions of release or bail, these notification requirements should help make the DANCO an effective way to protect victims.

III. The DANCO in Practice

                Advocates for domestic violence victims have identified two main problems with the DANCO as it has been put into practice in Minnesota: the slow and inconsistent flow of information from judges to law enforcement when DANCOs are issued, and the ability of victims to easily get DANCOs dismissed. These problems are almost certainly avoidable, and should not stop CEE/FSU countries from considering implementation of something like the DANCO. Based on the Minnesota experience, it seems that an effective DANCO system requires a consistent method of informing law enforcement when DANCOs have been issued, as well as an aggressive approach by prosecutors combined with an opportunity for victims to have their wishes considered.

                First, the process of making information about a DANCO’s existence accessible to the appropriate law enforcement authorities is slow and uncertain. Solving this problem is crucial because law enforcement officers must be able to verify the DANCO’s existence before making an arrest without a warrant for violation of it.[15] It appears that this problem may be remedied in Minnesota. Advocates report that the state court administrator’s office is working on getting DANCOs into the database used to track OFPs.[16] In addition, standardized forms should make the DANCO more recognizable to law enforcement over time, and emphasize its importance to the defendant as a separate order rather than just some additional language in a standard conditional release order.[17] If CEE/FSU countries consider implementing a mechanism like the DANCO, they could avoid this problem by ensuring that there is a reliable and efficient system in place for conveying information on DANCOs to all law enforcement authorities.

                Second, some advocates are concerned about the ease with which victims may request and receive dismissal of the DANCO, which leads to a blurring of the line between a criminal case brought by a prosecutor and a civil case brought by a victim.[18] Advocates are concerned that public defenders may tell the judge that the victim wants a DANCO dropped, and if the victim is present, the judge might even ask her for confirmation, on the record and in front of the defendant.[19] Scrutiny of a victim’s opinion seems inappropriate in a case brought by the prosecutor, not the victim. These problems are part of a greater tension between seeking protection of victims’ safety and respecting their autonomy.[20]

                Provided that safeguards allowing for victims’ input are in place, implementation of a procedure like the DANCO could be an effective way for CEE/FSU countries to navigate the tension between protection of safety and respect for autonomy. Advocates in Minnesota point out that victims sometimes want the state to take the lead. A victim unwilling to seek an OFP because her batterer will hold her responsible for this action and retaliate against her will often appreciate the fact that a DANCO is initiated by the prosecutor.[21] Ideally, wherever a DANCO system is in place, it should be clear to everyone involved that the prosecutor is in charge of the case, and while the victim should not be required to state whether she supports or opposes the DANCO (particularly not in front of the defendant), she should be given an opportunity to voice her concerns and have them considered. This way, the ultimate safety of the victim depends less upon her own choices than it would in the case of an OFP, but the other actors whose choices are important in this context, especially the prosecutor and judge, can take her desires into account.

The Advocates for Human Rights concludes that a petitioner cannot be held criminally liable for violation of their own OFP under any circumstances for several reasons.[1] 

The first is based on the language used by the statute itself, which contains language that restricts only the abuser, or the respondent.[2] Further, §518B.01, subd.18(2) says that, “the respondent is forbidden to enter or stay at the petitioner's residence, even if invited to do so by the petitioner or any other person; in no event is the order for protection voided.”  This subdivision indicates that no action on the part of the petitioner can void the OFP.

Next, as a remedial statute, the Minnesota’s Domestic Abuse Act should be treated with a liberal construction. The Domestic Abuse Act was intended both for the public good and to remedy the problems many women in Minnesota faced at the hands of their abusers.  It can therefore properly be declared remedial legislation.[3]  Thus, the statutes are to be given a liberal construction in favor of the remedy or of those who are the intended beneficiaries of the statute, and in a way that would not defeat the main purpose of the statute.  The goal of the legislation was to provide a means for victims of domestic abuse to be protected from their abusers and restrain the abusers in several different ways.  To read into the statute that petitioners are able to violate their own OFP goes against the intended purpose of the statute.  Further, it would mean expanding the original OFP to protect the abuser, rather than the person being abused.  Therefore, from a structural standpoint, a petitioner is not legally able to violate her own order.

To further support our conclusion, the case law from Minnesota states that the Minnesota statute may not be expanded in a way that does not advance its remedial purpose.[4] Additionally, case law from other states and relevant federal case law holds that a petitioner cannot violate her own OFP.  In 2003, the Ohio Supreme Court found that the prosecutor could not charge the victim with aiding and abetting the violation of the abusers’ orders.[5]  A similar type of question was posed to the US Supreme Court in Gebardi v. United States (1932)[6], where they held that a woman who voluntarily crosses state lines for the purpose of prostitution could not be prosecuted for aiding and abetting under the Mann Act.  Because the legislature did not specifically address this issue, the court held that the legislature intended to leave unpunished her acquiescence to the transportation and prostitution.[7]  Similarly, in regards to domestic violence, if the legislature’s goal was to hold women punishable for violating their OFP, it would have done so in an affirmative manner. 

Another pertinent federal case is the US v. Annunziato[8].  In Annunziato, the court held that, “when the Legislature has imposed criminal penalties to protect a specific class of individuals, ‘it can hardly have meant that a member of that very class should be punishable either as an aider or abettor or as a co-conspirator.’”  The abused person is the intended protected class and therefore, cannot by her own actions, remove this protection or be held liable for what the abuser does once invited inside.

Minnesota law allows the court to issue an ex parte order for protection if there is an “immediate and present danger of domestic abuse”[3] and to grant such “relief as the court deems proper,”[4] including restraining the respondent from abusive conduct and excluding him or her from the home and from the petitioner’s workplace.[5]

The petitioner must request a hearing to obtain additional relief, such as temporary child custody or child support.[6] The hearing must be held within 7 days.[7] There are detailed procedures in the law requiring notification to the respondent of the upcoming hearing, and provisions for continuance if the judge finds that either party shows good cause.[8]

The authors of the article stated that “…the temptation to misuse the Domestic Abuse Act can be enticing…saying that one party is abusive is a powerful allegation…parents accused of such behavior frequently lose in their other court battles over their children or their property.”[9]  They assert that for truly dangerous individuals, the order for protection “probably does little good.”[10]  The authors conclude that there should be better resources at the courthouse for the respondents, and, perhaps, a “less restrictive” order, with “shorter-term consequences.”[11]

In response to this article, a number of domestic violence experts wrote a letter to the editor of Bench & Bar, which is reprinted below:

To the Editors:

It is with great concern that we write to respond to the article entitled “Orders for Protection: When a Shield Becomes a Sword”, LXV Bench & Bar, March 2008. This article perpetuates a number of myths about orders for protection and the circumstances under which they are granted.

The authors bemoan the fact that a person can be removed from their home “all on the words of another.” (p. 28) The words of another are evidence in civil and criminal court proceedings and are not unique to orders for protection. They also assert that the ex parte protection order presents unique problems and that “nowhere else are we allowed to say someone is guilty until proven innocent.” (p.28). The availability of this type of relief is not unique. In both the state and federal courts, temporary restraining orders, without notice to the adverse party are available if there is immediate and irreparable loss or injury. Here the petitioner must show immediate and present danger—no less a standard. Moreover, before an ex parte order is issued, sworn allegations are reviewed by a judge who makes a determination if the requirements of the statute are met. The ex parte orders are not granted without careful judicial review. Respondents are entitled to a hearing in all cases and a continuance, if requested by respondent under the statute, is likely to be granted.

The authors contend, without citing any authority, that “parents accused of such behavior [abuse] frequently lose their court battles over their children.” (p. 29) In fact, studies indicate that domestic violence victims do not gain tactically from raising abuse allegations. Research shows that fathers who batter their intimate partners are more likely to contest custody. (American Psychological Association, Violence and the Family 1996). Research further shows that mothers who experienced domestic violence were no more likely than a comparison group to be awarded custody and that fathers were rarely denied visitation. (Mary Kernic, et al. Children in the Crossfire 11 Violence Against Women 991, 1013, 1014 2005).

Another assertion in the article is that for the truly dangerous an OFP probably does little good. Leaving aside their erroneous assumptions about who is truly dangerous, while studies show a range of rates of violation of protection orders, research supports the conclusion that obtaining a protection order is associated with reduced subsequent violence. (Carol Jordan, Intimate Partner Violence and the Justice System, 19 J. Interpersonal Violence 1412, 1427, 2004).

It is regrettable when myths replace facts. It is no doubt true that any legal process can be misused, however, the legal process for a protective order is similar to many legal processes: judges evaluate evidence, make determinations as to credibility, and then issue findings of fact and orders. Women do not seek protection from the courts lightly. Research shows that when women seek a protection order it is often after serious violence. (Id. at 1423).If the authors believe that judges are not adequately evaluating evidence and are not making appropriate determinations, then they can appeal an erroneous order. To suggest that there is widespread misuse of this process without any evidence beyond asserting it, does the court system and victims of domestic violence a great disservice.

• Beverly Balos, Clinical Professor of Law, University of Minnesota Law School
• Liz Richards, Minnesota Coalition for Battered Women
• Caroline Palmer, Minnesota Coalition Against Sexual Assault
• Jean Lastine, Central Minnesota Legal Services
• Denise Gamache, Battered Women's Justice Project

• Lolita Ulloa, Hennepin County Attorney’s Office, Victim Services Division- Domestic Abuse, Service Center

The Advocates for Human Rights supports this response to the Bench & Bar article. 

The following presentation is part of the Women's Human Rights Speaker Series, a bi-monthly event co-sponsored by The Advocates for Human Rights and Briggs & Morgan, P.A.:

Loretta Frederick and Connie Sponsler
Battered Women’s Justice Project
Tuesday, February 12^th, 2008 from 12:00 – 1:00 p.m.

The U.S. military, consisting primarily of young men, is faced with the issue of domestic violence in different forms than in other cultures and communities.  Complicating the situation are deployments, a high degree of mobility of the population, the usual stresses on relationships, and the mission of the military: warmaking. There are also unique challenges for the victims of violence committed by service members. This seminar explored these issues and described the intervention model employed by the branches of the U.S. military.  The presenters also reviewed the dramatic changes in Department of Defense policy over the past three years, resulting in a major paradigm shift that provides, for the first time, confidentiality for victims in some circumstances. Please click here to hear the audio file.

Loretta M. Frederick is Senior Legal and Policy Advisor of the Battered Women’s Justice Project, a national resource center on domestic violence criminal and civil legal issues.  Since 1978 she has done training and consultation on domestic violence legal issues with judges, advocates, attorneys, prosecutors and law enforcement officers in the U.S and internationally.   Loretta serves as faculty for the National Judicial Institutes on Domestic Violence and was a consultant for the US Marine Corps on the development of its Coordinated Community Response to domestic violence.  Her work with the Minnesota State Bar Association has included her current role as Chair of the Domestic Abuse Committee as well as a past term as Chair of the Family Law Section.

Strangulation continues to be a serious threat to the lives of women and children.  In fact, strangulation often foreshadows the escalation of violence and even homicidal intent.  Understanding, investigating, and preventing strangulation is complicated by the fact that legal standards are changing, investigations are often inadequate, and prevention is hampered by minimization of strangulation.  Strangulation accounts for ten percent of violent deaths in the United States according to a 2001 study published in the Journal of Emergency Medicine.  From 1989 to 2005 in Minnesota, thirteen percent of all women murdered by an intimate partner were strangled to death and seventeen percent of all children murdered by a family member were strangled to death according to the Minnesota Coalition for Battered Women’s 2005 Special Femicide Report. In her recent article  "'And Then He Choked Me:'"  Understanding and Investigating Strangulation," Allison Turkel, senior attorney and Chief of Training for the National District Attorneys Association, discusses the dangers associated with strangulation, investigating strangulation, the state of the law related to strangulation, and the role of prevention in enforcement and prosecution of strangulation. 

Unfortunately, domestic abuse and domestic violence occur far too frequently in homes all around the world, including here in the U.S.  In 2001, the Bureau of Justice Statistics reported that more than half a million American women (588,490 women) were victims of nonfatal violence committed by an intimate partner.  When the violence is not stopped, it can eventually turn fatal.  On average, more than three women are murdered by their husbands or boyfriends in this country every day. While nearly 85% of abuse happens to women, men can also be victims of abuse and violence from their partners.

This article will discuss some specific immigration options for some individuals leaving violent relationships, as well as some general concerns individuals in violent and abusive situations may have about pursuing this relief.

Anyone interested in pursuing immigration relief based on domestic violence should see a qualified immigration attorney before proceeding with any application to Citizenship and Immigration Services (“CIS”) because of the risk of being removed from the United States if CIS does not grant relief. 

It is also critical to work with an organization that helps individuals escaping domestic violence and abuse, such as a battered women’s shelter.  The organization can help secure individual and group counseling, shelter and food, as well as other benefits.  Most importantly, the organization will help create a safety plan to make sure that battered partners and their children can try to leave abusers in the safest way possible because leaving an abuser often leads to an increased risk of violence.

What are domestic violence and domestic abuse?

Many people think that domestic violence refers only to physical violence. However, domestic violence and abuse include much more than just physical abuse.  While the emotional and psychological abuse is often accompanied by physical violence, that is not always the case.  Here are some examples of non-physical abuse that often occur in an abusive relationship:

·        The abuser doesn’t let you visit your friends and family;

·        The abuser won’t let you work, look at the monthly bills and analyzes all of your receipts;

·        The abuser threatens to hurt you, but hasn’t hurt you yet;

·        The abuser harms the family pets;

·        The abuser insults you constantly and tells you that “you’re nothing;” and

·        The abuser insults your parenting and threatens to take the children.

These are just a few examples. Moreover, over time, abusive relationships can evolve into violent relationships.

Immigration Options for Immigrants Surviving Domestic Violence

The Violence Against Women Act (“VAWA”)

These series of laws allow victims of domestic violence, spouses, children, and now, in some cases, parents who suffer abuse at the hands of U.S. citizen (“USC”) and legal permanent resident (“LPR” or “green card holder”) family members to pursue immigration status on their own.  In other words, these individuals' immigration status now or in the future no longer depends on the abuser. Unfortunately, individuals experiencing abuse from someone with another type of status or no status cannot apply for VAWA relief.

To apply for relief under VAWA, you must show

1.      a qualifying relationship, which includes:

a.       a legally valid marriage to a USC or LPR;

b.      a qualifying bigamy to a USC or LPR;

c.       a recognized parent/child relationship where the abusive parent is USC or LPR; or

d.      a recognized parent/son or daughter relationship where abusive son or daughter is USC;

2.      a history of abuse, which includes physical battery and non-physical abuse, called “extreme cruelty;”

3.      a shared residence with the abuser; and

4.      good moral character.

It is possible to apply for VAWA relief either with CIS or in Immigration Court.  Relief under VAWA enables recipients to stay in the U.S. and get a green card independent of the abuser.

U Visa

U visas are available to individuals who have been victims either of serious crimes in the U.S. or crimes that violate U.S. law.  Some examples of crimes covered include rape, torture, trafficking, incest, domestic violence, sexual assault, involuntary servitude, kidnapping, abduction, false imprisonment, extortion, perjury, and other offenses.   To qualify, you show that you:

1.      Suffered substantial physical or mental abuse as a result of having been a victim of criminal activity;

2.      Possess information concerning the criminal activity; and

3.      Have been helpful, are helpful, or are likely to be helpful to law enforcement or prosecutors.

It is possible to get derivative status for the children, spouse, and, in some cases, the parent of a “U” visa holder.  The U visa is granted for three years.  At the end of three years, it is possible to apply for a green card.  “U” visa holders may also be eligible for employment authorization under existing regulations.  Please note that there are no regulations yet for U visas, so CIS is only giving temporary relief until those regulations come out. 

Asylum

In some circumstances, survivors of domestic violence may be eligible to apply for asylum.  Possible scenarios include fleeing the home country due to an abusive relationship, or fearing return to the home country because the abusive spouse was deported from the United States. The United States grants asylum to individuals located in the country that experienced past persecution or have a “well-founded fear” of future persecution because of their race, religion, nationality, political opinion or “membership in a particular social group.”  This area of law is not settled regarding domestic violence-based claims, but people have won cases based on domestic violence claims. 

First, it is necessary to demonstrate that the abuse experienced constitutes persecution. It is very important to be as specific and thorough as possible in detailing the abuse.  Second, the abuse must be linked to one of the five bases for asylum, typically membership in a particular social group. Third, it is necessary to show that the authorities in the home country are not willing or not able to protect the individual from the abusive situation.  This element can be satisfied by showing, for example, that the country lacks any laws against domestic violence, or that the police and other government officials do not enforce the laws they do have.

It is difficult to prove a case for asylum due to fear of domestic violence because judges are afraid that giving one person asylum on this ground means that they will have to give asylum to thousands and thousands of people.  Consequently, it is essential to demonstrate how a particular case is specific and unique. For the same reason, it is also important to try and provide as many documents as possible corroborating the story.

Common Survivor Concerns

“I never called the police, so I don’t have any proof he hurt me. It’s just my word against his.”

Police reports, court records, protection orders, medical records and other documents are helpful, but they are not required evidence.  There are other ways to document the abuse.  Survivors can write the story of their abuse, which will be the most important document in any immigration application.  Also, statements from family members who know about the abuse, or from ex-girlfriends of the abuser who also experienced violence from him make good evidence. A survivor should not be deterred from seeking help just because she thinks she cannot “prove” it. 

“Won’t I lose any hope of getting legal immigration status if I leave my partner? He says he can have me deported.”

Many abusers who are citizens or have some valid immigration status often threaten to have the person they are abusing deported. This is powerful threat because often times the person experiencing the violence depends on the abuser for her immigration status.

These types of threats are simply another way for abusers to exercise control and extend their reign of terror. Individuals who have actually experienced violence or other forms of abuse, including psychological and emotional abuse, may be eligible to apply for the different kinds of immigration relief delineated above without relying on the abuser. 

“What if I am out of status right now?”

As noted above, valid immigration status is not necessary to apply for many types of relief as an individual who has experienced domestic violence and/or abuse.  There are ways to apply without relying on the abuser. There is a risk of not receiving status and being placed in removal proceedings, so it is extremely important to work with a qualified immigration attorney.

How to get help?

Survivors can call, email or visit a battered women’s shelter or crisis center.  Centers often offer you counseling and many other services that can facilitate leaving the abusive relationship.  Such organizations will also help formulate a safety plan and emergency plans to try and ensure the safety of the survivor and her family.  The organization can also refer survivors to a competent immigration attorney.  In certain cases, survivors may also be able to contact the attorney helped them enter the country, although she may not be able to represent survivors in cases where the attorney previously represented both the survivor and abuser. Survivors should absolutely avoid approaching CIS or any other branch of Department of Homeland Security for help without the help of an immigration attorney. The risk of removal from the United States is too high.

Much of the field research for the report was conducted by Winrock International, New Perspectives for Women.  The CEDAW Assessment Tool Report for Moldova is one in a series that ABA Rule of Law Initiative has produced in various countries throughout the region.  Ms. Lori Mann, an attorney and international gender expert, authored the report.  The views expressed in the report have not been approved by the House of Delegates or the Board of Governors of the American Bar Association (ABA) and, accordingly, should not be construed as representing the policy of the ABA or any of its entities.  Funding for the report was made possible by the generous support of the American people through the USAID, with additional financial support from the Organization for Security and Co-operation in Europe (OSCE) Mission to Moldova.

Contributed by: Agnieszka Mrozik, Poland National VAW Monitor

Act on Counteraction Domestic Violence – the history of legislative process

In 2003, the Government Plenipotentiary for Equal Status of Women and Men, Izabella Jaruga-Nowacka, in cooperation with non-governmental organizations started to draft the law that would combat domestic violence. She continued the work as deputy Prime Minister together with Magdalena Środa, the new Plenipotentiary. The draft prepared by Jaruga-Nowacka and Środa reflected the understanding of the need of immediate action when domestic violence takes place. The project was based on four assumptions: domestic violence is a crime; the state is responsible for prevention of domestic violence and punishment of the perpetrator; the perpetrator is responsible for his or her actions; and the victim has the right to be safe. One of the most significant regulations of the new act was the order to keep the perpetrator away from the victim, including the perpetrator’s eviction from the place of common living. The draft law forbade the perpetrator to have any contact with the victim for 3 months: no phone calls, e-mails, nor physical contact. This regulation also allowed for the perpetrator to be banned from the place of common living. Other provisions included: compulsory therapy for the perpetrator, ban on corporal punishment of children, and cooperation of all individuals and institutions that aimed at fighting against violence to achieve better results. 

However, the draft that reached the Seym in January 2005 did not keep much of the nature, text and spirit of the first draft prepared by Jaruga-Nowacka, Środa, and non-governmental organizations. The text was strongly reworked, rephrased, modified and simply changed during the governmental drafting. During the first (February 2005), second and third (July 2005) reading of the Draft Law, the most intense discussion broke out about the suggested regulation on the eviction of perpetrator from the flat shared with the victim (the argument was that it could influence the growing number of the homeless), as well as about the corporal punishment of children (the MPs believed in the “educational power of spanking”). The result was that the article banning on corporal punishment of children had been rejected by the Seym even before it reached the Senate. With an equal intensity, the MPs debated about the definition of domestic violence. The wording of domestic violence as resulting in “destruction of all kinds of freedom, including sexual one” was considered by some MPs as “an invitation to rape” because of this notion of sexual freedom.  The majority of the MPs finally voted to include the “controversial” words in the general definition of domestic violence.

On July 25, 2005, the Draft Law was discussed in the Senate. The members of the Senate introduced several amendments to the Law:

1). the regulation creating the Council on Counteraction Domestic Violence, which was to be the Prime Minister’s advisory and consulting body, was rejected (the argument was that it would be an unnecessary subject eating up the enormous sums of the budget money). According to the Law, the Council was to consist of the representatives of: the Ministries (Justice, Interior, Labour, Social Affairs, Health, Education), the Ombudsman for Children, the Commissioner for Civil Rights Protection, and the NGOs.

2). the content of the article, demanding the perpetrator’s eviction from the flat jointly occupied with the victim, was changed. The members of the Senate suggested that the court would be able to force the perpetrator to leave the flat and move to the new residence, but only if there was a serious fear that the perpetrator would be continuously using violence against the family members or threatening to commit this crime.  Ordering the abuser out of the home is a remedy available only in a criminal conviction.  When, by chance, the sentence was suspended, the court would decide about further contact between the perpetrator and the victim, including the ban on any contacts. The court would also direct the perpetrator to the therapy or decide about his (her) participation in a special corrective and educational program.

On July 29, 2006, the Senate amendments were discussed by the Seym. The MPs approved the Senate’s rejection of the regulation that provided for creation of the Council on Counteraction Domestic Violence. But, at the same time, they rejected the amendment which suggested that the perpetrator may be evicted from the flat jointly occupied with the victim only if there is a serious fear that he (she) will be using violence against other family members or threatening to commit this crime. According to the final version of the Act, the fear mentioned by the Senate was not to be the only argument for the court’s decision about the perpetrator’s eviction from the flat. On July 29, 2005, after those changes were made, the Seym passed the new Law.  These remedies are available only through criminal proceedings; there is no mechanism for civil proceedings under this law. 

On August 1, 2005, the Act was directed to the President Aleksander Kwaśniewski who signed it on August 18. On November 21 the Act was enacted.

Compiled from:

Monika Płatek, Women, Children and the Law in Poland: Protection or Barrier?, Law Faculty, Warsaw University, Poland, May 2005 (PDF, 17 Pages)

“Counteraction Violence in Close Relations Act Discussed in Polish Parliament”, StopVAW, July 1, 2005

"Counteraction Violence in Close Relations Bill Passed and Enacted”, StopVAW, February 6, 2006

“Opis przebiegu procesu legislacyjnego dla projektu ustawy o przeciwdziałaniu przemocy w rodzinie”, Komisja Sejmowa; last access July 30, 2006

COMMENTARY ON THE ACT ON COUNTERACTION DOMESTIC VIOLENCE

“Unfortunately, the Act on Counteraction Domestic Violence, enacted on November 21, 2005, is far from the social expectations. For sure, the Act contains the articles that emphasize the significance and specificity of domestic violence. For example, the article 12 allows for deprivatization of domestic violence and signalizes that some individuals or professional groups are particularly responsible for giving attention to the problem of domestic violence. This article states that the individuals, who, entitled by their official duties, suspect that domestic violence crime was committed, should immediately report this to the police or prosecutor. 

Furthermore, the Act provides for the new regulation allowing for separation of the perpetrator from the victim of domestic violence, as well as for reeducation of the perpetrator. But these bans and orders are not so distinct as those legally binding in other countries, like in Austria, Germany or Spain. According to the article 14, the court may demand police supervision instead of a temporary arrest on condition that the defendant leaves the flat jointly occupied with the aggrieved person. And this is the only regulation that is legally binding by the trial begins. But after the sentence is passed, the court, suspending it, may oblige the perpetrator to undergo a therapy or participate in a corrective and educational program. On the other hand, conditionally dismissing the criminal proceedings against the perpetrator of domestic violence or suspending the sentence, the court defines the way in which the defendant and the aggrieved person contact each other or, in certain circumstances, it may ban the defendant’s moving close to the aggrieved person. In such a case, the court may also pronounce that the defendant leaves the flat jointly occupied with the aggrieved person (Article 13 and 15).

There are no special powers for the police which very often contact the victim first, coming for, so called, “intervention.” Very few changes were introduced into the initial stage of the criminal proceedings when the victim needs the real protection against the perpetrator. Only when the sentence is passed, the more distinct possibilities of bans and orders appear.

Does the new Act provide for anything we may celebrate then? There are several positive aspects of this Act. First of all, we have a separate Act on Counteraction Domestic Violence, not only amendments to existing bills. It means that our legislative body recognized domestic violence as a serious social problem and found the state responsible for solving it. Furthermore, for the first time in the history of Poland the Act has provided for the definition of domestic violence (article 2, item 2) and this definition was suggested by the NGOs. The Act also assumes that the Council of Ministers will adopt and monitor the National Program for Prevention and Counteraction Domestic Violence.

It is a pity that we do not have the Act similar to the Austrian, German or Spanish one. But what is important is the fact that we have the Act and it is legally binding. And being the separate Act, it may be amended.” (Spurek, 2006: 10-11)

Sylwia Spurek – a lawyer, legislator, by November 2005 the spokeswoman of the Government Plenipotentiary for Equal Status of Women and Men, Prof. Magdalena Środa. She prepared the Draft Act on Counteraction Domestic Violence and held public and governmental consultations on this project.Source:

Sylwia Spurek, Ustawa przeciw przemocy, “Zadra,” No 1 (26), 2006, p. 10-11; unofficial translation by Agnieszka Mrozik.

This memorandum sets forth the relevant law addressing the right to property in domestic violence cases.  The Advocates for Human Rights drafted this memo in response to National VAW Monitors’ concerns raised at the Budapest Meeting in 2006.  Several Monitors cited obstacles in drafting and passing domestic violence laws which include order for protection provisions.  They had noted officials’ concerns regarding property rights.  Advocates in Minnesota likewise faced this challenge when passing Minnesota’s domestic violence law in 1976.  Since then, however, U.S. courts have recognized that property rights are not absolute and protecting women and children’s safety is a compelling state interest which can supersede property rights.  In one case, the court noted the importance of a state’s power to protect the safety of its citizens: 

“The police power is the inherent power of a body politic to enact and enforce laws for the promotion of the general welfare.  It has long been recognized that property rights are not absolute and that persons hold their property “subject to valid police regulation, made, and to be made, for the health and comfort of the people…”[1]

…”The restrictions that the act places on the use of property to protect abused spouses and children are necessary to dispel the dangers of domestic violence. In doing so, they violate no constitutional mandate against the taking of property.”[2]

In another case, the court noted the seriousness of domestic violence and the extreme danger presented in these cases prioritized people’s safety over property rights:   

“The magnitude of the problem of domestic violence is evidenced by statistics compiled by the FBI in 1973 which indicate that one-fourth of all homicides in the United States occur within the family.”[3]

The caselaw summarized below addresses the right to property in terms of: 1) a taking without compensation; 2) an exercise of the state’s police power, and; 3) a taking without a jury trial.  Not all of these cases are based on facts situations of domestic violence.  Some courts have, however, applied the general rules on taking of property to domestic violence cases.  This memo also presents another rule: courts may not order the victim out of the home under domestic abuse laws that provide for orders for protection. 

This memo is followed by quotations from domestic violence cases that address the right to property against the governmental interest, i.e. protecting the health, welfare and safety of its citizens.  A summary of the facts and how each case came to court are provided for each case.  

Where possible, cases are linked to the internet.  Where cases are not available on the internet, they will be sent separately as attachments. 

II. ISSUE 1: WHETHER AN ORDER FOR PROTECTION CONSTITUTES AN UNCONSTITUTIONAL TAKING AND REQUIRES THE STATE TO PAY COMPENSATION.

1. Three elements must be established to constitute an unconstitutional taking and require the state to pay compensation.[4]
   1. A state action
   2. which affects a property interest in the constitutional sense, and
   3. which deprives the owner of all beneficial use of his or her property. 
2. The husband must be denied all beneficial use of the property to constitute a taking of property and require the state to pay compensation.
   1. Children still living in the house still provide the husband with some beneficial use of the property.  The husband is using the property to house his children.[5] 
   2. A wife still living in the house still provides the husband with some beneficial use of the property.  The husband is not required to find her alternative shelter.[6]

III. ISSUE 2: WHETHER THE PENNSYLVANIA PROTECTION FROM ABUSE ACT IS AN UNCONSTITUTIONAL EXERCISE OF THE STATE’S POLICE POWER.

1. Property rights are not absolute and are subject to the legitimate use of the state’s police power.[7]
   1. “The police power is the inherent power of a body politic to enact and enforce laws for the promotion of the general welfare.  It has long been recognized that property rights are not absolute and that persons hold their property “subject to valid police regulation, made, and to be made, for the health and comfort of the people…”[8]
   2. The test to determine whether there is an unconstitutional exercise of the state’s police power:  

i.      “…a law which purports to be an exercise of the police power must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained.”[9]

ii.      The Protection from Abuse Act is not a due process violation, because the sanctions bear a real and substantial relationship to the stated objectives, which are to provide for remedies and procedures relating to abuse of adults or children by a person who is a family or household member.[10]

3. With regard to state use of police power, there is no unconstitutional deprivation of individual rights and property rights when:

i.      any deprivation of use of property is temporary,  

ii.      title to real estate is not affected,

iii.      all exclusion orders are modifiable.[11]

IV.  ISSUE 3: WHETHER AN ORDER FOR PROTECTION LAW IS UNCONSTITUTIONAL AS DEPRIVING AN INDIVIDUAL OF PROPERTY WITHOUT A JURY TRIAL.

1. The Protection from Abuse Act is not unconstitutional as depriving a party of his property without a jury trial.[12]

1. The act does not involve any criminal proceeding, but invokes the equitable power of the court. 

V.  ISSUE 4: WHETHER THE COURT EXCEEDED ITS AUTHORITY UNDER THE DOMESTIC ABUSE ACT BY ORDERING THE VICTIM OUT OF THE HOME.

1. An order for the abused party to vacate the family residence is inconsistent with the language of the statute and its remedial purpose.[13]  
   1. As a remedial statute, the Domestic Abuse Act receives liberal construction.[14]
   2. The liberal construction accorded remedial legislation, however, is “remedial solely in favor of an injured....person.”[15]

The following are two commentaries and opinions on THE DRAFT LAW on the amendment to Article 3.65, Part 2, Item 1 of the Civil Code of the Republic of Lithuania, Book III, Section Four:  DIVORCE ON THE BASIS OF THE FAULT OF ONE OR BOTH OF THE SPOUSES (click here to see Articles 3.60-65 (unofficial translation by Vilana Pilinkaite-Sotirovic)

Commentary contributed by: Vilana Pilinkaite-Sotirovic, Lithuania National VAW Monitor

The current article is as follows:

“Article 3.65.  Provisional protection measures

1. The court, having regard to the interests of the children of the spouses as well as the interests of one of the spouses, may made orders for provisional protection measures pending the outcome of the divorce suit.
2. The court may make the following orders for provisional protection measures:

1)      circumstances permitting, order one of the spouses to live separately;

2)      determine the residence of the minor children with one of the parents;

3)      demand for one of the spouses not to interfere with the use of certain property by the other spouse;

4)      issue a maintenance order in favor of the minor children or the other spouse;

5)      seize property until its ownership by one of the spouses is determined or in order to enforce maintenance payments;

6)      seize the property of one of the spouses, the value of which could be used to compensate for the litigation costs to the other spouse;

7)      prohibit one of the spouses from having contact with his or her minor children or appearing in certain places.”[1]

The draft law of the amendment addresses part 2, item 1:  “circumstances permitting, order one of the spouses to live separately”, and suggests deleting the words “circumstances permitting,” because this wording contradicts the priorities of the application of legal acts which protect the rights of children.  Even worse, the wording prioritizes the rights of violators.  The aim of the amendment is to protect the property and personal non-property rights of the children and of one of the spouses, and to stop the physical and psychological violence in a family.[2]

The project promoter argues that the Third Book of the Commentary of the Civil Code[3] stipulates that provisional protection measures are applied under the necessary circumstances when property and personal non-property rights of a child and one spouse might be damaged.  However, the following commentary of the Civil Code, as indicated below, implies that, in practice, there are certain limitations on the application of the provisional protective measures.  The project promoters refer to the specifications that clearly show the limitations of applying the provisional protective measures:

“the order for one of the spouses to live separately is possible when the spouse’s physical and other violence against children and the other spouse may cause damages for them, but to order the violator to live separately is possible if the spouse has the possibility to live separately, namely, has ownership of living premises, is renting living premises or has enough financial resources to rent living premises.  In the case of the absence of these possibilities, a child can be temporarily separated and settled in the state’s child custody institution  or temporarily entrusted to the custody of close relatives.”[4]

Therefore the project promoters argue that the court, in the case of the protection of the children and one spouse from the violent behavior of the other spouse, has to consider if the violator has enough resources to live separately.  The court cannot unconditionally order the violator to live separately from the family (for example, to seek shelter at a public sleeping house, or with close relatives).  Instead, the court has only the right to order the separation of a child-victim of violence by settling him in what may be an unknown environment.

The draft law on the amendment of Article 3.65, Part 2, Item 1 of the Civil Code has been commented upon by the Legal Department of the Office of Seimas (Parliament), the Committee of Legal Affairs at the Seimas, the Commission on Family and Child Affairs, the Department of European Law, and the Supreme Court of Lithuania.

Many comments and remarks on the draft law of the amendment of Article 3.65, Part 2, Item 1 of the Civil Code (CC), as indicated below, suggest that changing the words “circumstances permitting” would not improve the situation of the children and the spouse who suffer physical or any other violence, but might even worsen it.[5]

1. One of the remarks of the Legal Department of the Office of Seimas (Parliament) concludes that the amendment is interpreted in a very narrow sense.  Each article of the CC should be interpreted as a complex part of the total CC rather than in isolation.  Therefore, by referring to the financial opportunities of a spouse, the project promoters are incorrect.

2. It is stated in the remark that an order to live separately contradicts the Constitution and limits the constitutional rights of free choice for settlement and even ownership rights (when a person is ordered to live separately and move from the private ownership.) [Articles 32 and 33 of the Constitution of the Republic of Lithuania]  The court may limit these rights if it is enshrined in the law or if it is necessary to defend other constitutional values or the public interest.  In the case of divorce, when a spouse or children suffer violence, the Court may defend such constitutional values as human dignity and safety (Article 21, Constitution).  Also in the Constitution, the state protects the institution of the family, motherhood, fatherhood and childhood, and by law defends children’s rights (Articles 38 and 39, Constitution).  In the civil case of divorce, there is a conflict of constitutional values, and the court has to restore the balance of these values and apply proportional and necessary provisional protection measures to achieve this goal.  However, the comment of the Committee of Legal Affairs suggests that the court has to take into consideration the financial opportunities of a spouse when an order is given to live separately from a family, and restore the balance of the constitutional values after evaluating whether or not a spouse has enough resources to live separately.

3. The Legal Department of the Office of Seimas (Parliament) argues that the measure to order a spouse to live separately is provisional and non-mandatory.  Even the elimination of the words “circumstances permitting” will presume the non-mandatory.  Such a measure would not secure the children’s interests because they are not secured from contacts with the violent parent outside the home’s private space (children could be met on the street, near school or kindergarten.)  Therefore the measure to settle children temporarily under state custody or in the custody of close relatives would be more effective.  [These measures are also mentioned in the UN Convention on Children’s Rights.]

4. The advisor at the Committee of Legal Affairs argues that the words “circumstances permitting” would make the situation worse because the court would avoid applying this measure.  The concept of living separately in not defined very concretely and therefore the words “circumstances permitting” includes financial circumstances and additionally any factual circumstances which might include the separation of the family by limiting the spouse’s right to utilize a part of the living quarters.  Therefore, the court should evaluate these circumstances.  There is another danger that a spouse can blackmail the other spouse with accusations about violence, with the goal of appropriating a larger part of the property.  Meanwhile, the CC includes the equality principle for both spouses and their interests.

5. The Supreme Court also presented the opinion that the suggested amendment would not improve the situation, because the provisional measure is applied to protect the interests of underage children and one spouse until the conflicts between spouses or the children’s parents are solved [in the divorce litigation].  In addition, this provisional measure to order one of the spouses to live separately is not conceptualized to resolve the underlying social problem of violence against women.

At this point, the draft law has been returned to the promoters to provide new arguments for the promotion of the amendment to Article 3.65, Part 2, Item 1.[6]

Commentary contributed by: Mary Ellingen, Volunteer Lawyer, The Advocates for Human Rights:

Commentary to the Draft Law on the Amendment to Article 3.65, Part 2, Item 1, of the Civil Code of the Republic of Lithuania:

The objective of the law, as stated, is to protect the interests of the children as well as one of the spouses during a divorce suit.  The protective measures allow property to be seized for the temporary support of minor children or the other spouse, and even for the litigation costs of the other spouse.  The article allows the court to determine temporary custody of the minor children, and to prohibit one of the spouses from having contact with the children or from appearing in certain places [presumably places where that minor child might be, such as a schoolyard- this should be clearly stated if that is indeed the drafter’s intent].

In summary, the court may consider that the protection of a spouse and a minor child should outweigh the other spouse’s rights to his or her property, to his or her children, and to move freely about in society.  All of these measures are clearly stated to be provisional, pending the outcome of the divorce suit.

However, the first provisional protective measure has an additional condition upon it:  the court may order one of the spouses to live separately if there are “circumstances permitting.”  It is unclear if these are the personal circumstances or finances of the spouse who is to be ordered to live apart, or if the “circumstances” are the circumstances of violence which exist and which would therefore justify an order by the court that a spouse live apart.  The language “circumstances permitting” clearly qualifies what should be an unequivocal right to safety for a victim of domestic violence, be they a spouse or a child.  “Circumstances permitting” is too vague- the circumstances could be financial, or, one could argue, even a matter of convenience to an abuser. 

The personal “circumstances” of an abuser must not be allowed to take priority over the safety of the other spouse or the safety of the children.  This would be a clear violation of the human rights of that spouse and child.  If a court can order a child into unfamiliar living conditions during the divorce proceedings (see Commentary to Civil Code), it ought to be able to order an abuser to find suitable accommodation, despite any hardship it may cause to his “circumstances.”  It is true that this would not guarantee the safety of the other spouse and child, but it would remove the abuser from the home and thus from the security of perpetrating the violence away from the public eye.

Not only should the words “circumstances permitting” be omitted, but the court, in order to fulfill the purpose of the Article stated in paragraph no. 1, should be required to order a spouse to live separately, if the court determines that to be necessary for the physical safety of the children or the other spouse.  If that is indeed what the drafters intended to be the circumstances permitting such an order, the language should clearly state so.  The other provisional protective measures should be mandatory, as well.

After the 1985 world conference on women victims and observers of violence against women began banding together and speaking out in many countries.  Ordinary women in villages, cities and rural areas began saying to themselves and to each other: “Enough.  This is not right.  I will speak out.” They went public with their stories and politicians at local and national levels listened.  I had not realized the power of these stories even though I headed an international women’s human rights organization and had been in politics for years.  Personal stories became the basis for political action.   

At the parallel non-governmental conference in 1993, which focused on violence against women, I also watched government delegates stroll the hallways of the NGO event held on a floor below the UN meeting. Standing before one of the TV monitors that was broadcasting women’s stories, a distinguished delegate expressed astonishment that such violence could be perpetrated and tolerated. Why did it take the stories of individual women in countries around the globe to convince this man and the governments represented at the conference that human rights applied to women?

The answer is that historically human rights organizations limited themselves to the public sphere,  concentrating on the egregious actions of repressive governments against their citizens.  They considered the private sphere—the male-headed family—sacrosanct,  beyond their purview.  The common wisdom was that domestic violence was a family matter into which the public should not intrude. Police forces worldwide also held this private sphere view.  Another common belief was that wars were between armies who abided by internationally accepted rules of war.  Rape in wartime got little attention until the Bosnian war later in the 1990s. 

 Worldwide activism on violence against women made 1993 a turning point in human rights history.  The Vienna Declaration adopted by this United Nations world conference,  proclaimed:

“The human rights of women and the girl-child are an inalienable, integral and indivisible part of universal human rights.  The full and equal participation of women in the political, civil, economic, social and cultural life at …(all)…levels and the eradication of all forms of discrimination on grounds of sex are priority objectives of the international community. 

Gender based violence and all forms of sexual harassment and exploitation, including those resulting from cultural prejudice and international trafficking are incompatible with the dignity and worth of the human person, and must be eliminated.  This can be achieved by legal measures and through national action and international cooperation…”  

Since then the women’s program of The Advocates has been a leader in helping national groups assess the violence against women problem and devise legal strategies to protect women and give them recourse when they are victims of violence.  Also, after 1993. the media, which previously had ignored the violence against women problem, began giving it attention.  The 1995 world women’s conference in Beijing, China,  resonated with the slogan:  “women’s rights are human rights.” Women individually and women’s groups in many countries are becoming more aggressive in tackling the problem.

But there is still much more to be done. Thousands of years of history are behind the “cultural prejudice” referred to in the Vienna Declaration.  Fundamentalists, using religion for political purposes,  have been in ascendance in democratic and non-democratic countries in recent years.  In the name of family and security they seek to keep women in subservient positions, legally and culturally.   This makes women more vulnerable to violence, especially when the traditional, male-headed family legal structure is reinforced and women have fewer economic and political resources.  

A two-track strategy is necessary to overcome the violence against women problem.  The first is continuing making the personal political by publicizing individual and group manifestations of violence and organizing to combat it.  This provides the impetus for legal and cultural change which is the second, longer-term strategy.  Not only must every country and community have laws providing women victims recourse, the provisions of CEDAW, the Convention on the Elimination of All Forms of Discrimination Against Women, the women’s human rights treaty now ratified by almost 200 countries, must be written into law.  

In implementing CEDAW four articles in that treaty are of paramount importance.  These are the articles on equality before the law, marriage and family law and those on education and employment.  The first two articles concerning legal equality, were the most contentious when CEDAW was being drafted and adopted by the United Nations.  Lack of legal equality means recourse when violence occurs is more difficult.  Legal subordination  gives the violence prone cultural validity.  Where women are considered legal subordinates in marriage, violence to enforce that subordination is more frequent and often culturally tolerated.   Where marriage is women’s most secure source of economic and social stability then equal legal rights in marriage and family law is essential. Educating girls for work outside the household is also essential.   Long term, education and equal access to employment empowers women, making them less prone to sexual slavery, to accepting violence as a cultural norm and more likely to seek recourse when violence occurs. 

The success of the violence against women campaigns in changing  human rights policy is the foundation for legal changes in conformance with the new  human rights standards.    Continuing activism is required to bring about the legal changes. 

Genoveva Tisheva:
Genoveva Tisheva is a lawyer and the Managing Director of the BGRF. She is one of the initiators and the drafters of the Bulgarian law on Protection against Domestic Violence. Her organization also organized the contacts with the parliament and the main lobbying campaign, which brought to the successful adoption of the law in March 2005. Since then she has been participating in the work for the successful implementation of the law. She has also consulted the Tajik NGOs on their Draft law against family violence in July 2005 through holding a seminar in Dushanbe during that period.

It is a good initiative as a whole. There are some concerns regarding the mixture of social, administrative and court protections and the fact that decisions will be taken within the criminal procedure, as well. In some places, there is a great deal of intervention by people other than the victim, and there is no guarantee how quick the protection could be.

Art. 1- Should define more precisely the second and the third purpose of the law; they are almost the same: “ to protect the victim.”

Art. 2- It is good that there is both a general and a more detailed definition of domestic violence. The only issue with the more detailed definition is that the court might look for these exact hypotheses instead of developing practice. Psychological violence as such is expressly missing.

Art. 3, para. 7- This provision is good, but will pose problems.

Art. 5 and following- This is a big commitment by the state. Hopefully, it will be developed in more detail in other legislation.

Art. 8, para. 2- If it is possible, it would be better to shorten the period of reaction, such as a maximum of 6 hours?

Art. 9- It would be good to leave more space for the services for NGOs, which have the expertise already and it is up to the state to support them. They should not leave too much initiative to the state and the local authorities- they will not do it properly.- The NGOs not only in the interdisciplinary teams, but also to have the initiative for the centres.

Art. 12- This provision contradicts Art. 11 a bit. They should not go too far with this publicity; it is up to the victim in the first place to decide, upon her free initiative. It will worsen the situation. The law should be careful to limit the people and institutions involved in this. When she/he is a child, that is okay, but in other cases- there is a difference. The victims should be offered just information and support.

Art. 14- This is a good initiative. It should be in compliance with the procedural codes. Will it be an advocate officially entitled in court? It should be stated explicitly.

Art. 15- What about measures about the children, when limiting the contacts? Also, other places like the workplace should be mentioned.

Art. 16- Among other issues, the purpose is to protect the rights of the victim in the first place.

Art. 17, para. 1- In the last sentence of this paragraph, there should not be such a condition, as there is always a danger of committing violence again. They must be separated, anyway.
Art. 17, para. 3- The maximum period is too short. It should be as long as needed- up to 6 months at least or 1 year.

Art. 18, para. 1- In the last sentence of this paragraph, there should not be such a condition, as there is always a danger of committing violence again. They must be separated, anyway.

Art. 19- It can be ordered anyway, and qualifying circumstances are not needed.

Art. 20- This should be in accordance with other laws related to addictions.

Art. 21- This should not be restricted to only 6 months, but as long as it is needed, e.g. up to 1 year.

Art. 22- This provision seems good, it is a bit unclear as a link to the above mentioned articles. The victims stays at home according to the measures.

Art. 23- This may not be in all cases.

Art. 24- NGOs, the prosecutor, police cannot initiate the procedure. It is too much.

Art. 24, para. 2- This is unclear.

Art. 25- This is maybe their criminal procedure, and they have such a crime in their law. This is good that the state has it. It explains why they want to hear the perpetrator. But it is also creates a limitation of the criminal procedure. It limits the ex-parte procedure opportunity, and the shift of the burden of proof, which is needed in this case. A declaration of the victim is not provided.

Art. 27- It is not clear how quickly you can have the protection, there are no guarantees in this procedure. The accused can hide indefinitely.

Art. 29, para. 2- This is not needed, it opens other opportunities to the aggressor.

Art. 30, para. 3- There has to be such services available in this case.

Art. 33, para. 1- in the last part, as mentioned above, this body cannot ask for termination or prolongation.

IV. Sanction Provisions- The last section is really criminal sanctions- it means that this law also regulates criminal sanctions. Since it is possible under their law.

Art. 35, para. 2- It is acceptable to have such a provision for the child.

Art. 36, para. 2- This is too short as a sanction. The law should provide more severe sanctions when repeated.

Art. 39- In addition to this, it should provide a broader inter-ministerial forum on DV issues.

Cheryl Thomas:
Cheryl Thomas is the Director of the Women's Human Rights Program of The Advocates for Human Rights. For more information about The Advocates, please visit www.mnadvocates.org

The Law of Montenegro on the Protection from Violence in the Family (hereinafter, the Law)