last updated February 1, 2006
Throughout the CEE/FSU region, victims of domestic violence turn to civil law remedies to escape abuse. Although the availability of these remedies varies by jurisdiction, divorce, orders for protection (OFPs) and tort remedies are common types of civil relief.
Several countries in the CEE/FSU region have civil remedies designed to protect the victim and temporarily remove the abuser from the home. One civil remedy used in some countries, often called a civil protection order or order for protection (OFP), is an order issued by a judge to exclude an abuser from the home for a period of time to protect a woman and her children. These protection orders can take the form of emergency ex parte orders (temporary orders issued without notice to the defendant), which last a short time. Women may also seek longer-term orders for protection. These orders require a full hearing before a judge with the abuser present. Many women use this civil court process instead of using the criminal court system. The international model code includes a civil protection order provision.
Civil protection orders were controversial when they came into use in the United States, but there were convincing reasons that they were important for protecting women against domestic violence. While a civil protection order interferes with an abuser's property rights (i.e., the right to live in one's house), the legislature made a determination that a woman's right to be free from violence is more important than the abuser's property rights. When an abuser was putting other members of the household in danger with his behavior, justice required that he should leave the home, not the women and the children. Advocates should closely monitor the laws and their implementation and educate officials in order for the civil protection order to be an adequate remedy.
Particularly where OFPs are unavailable, divorce remains the only avenue of relief available to battered women in many countries. Divorce, however, can be costly and difficult to obtain. Judges may require parties to participate in mediation or couples counseling, a process that can further endanger the victim. As the Family Violence Prevention Fund explains, there are a host of problems associated with mediation when domestic violence is an issue:
Mediation and couples counseling imply that both parties are responsible for the perpetrator's violent behavior, a message that blames victims and fails to hold offenders accountable for their crimes. Mediation also presumes that both parties have equal power and can negotiate a mutually agreeable settlement. Where there is domestic violence, sexual assault, or stalking behavior, however, one party has controlled the other through sexual, physical, emotional and/or economic abuse. Even the most skilled mediator or therapist cannot shift the balance of power when one party has abused or assaulted the other, making mediation and joint counseling dangerous and ineffective in such cases. From Betsy Mcalister Groves et al., Identifying and Responding to Domestic Violence: Consensus Recommendations for Child and Adolescent Health, Family Violence Prevention Fund 28 n.5 (September 2002).
Finally, because of the ways in which batterers can use child custody and visitation against their former partners, it is critical that the laws that govern child custody determinations, laws most often invoked during divorce, further the safety of both the child and the non-abusive parent.
For a list of research and reports on OFPs, family and tort law issues, click here. | 