Scope of Persons Protected by Law and Culpable Persons

Last Updated May, 2010

Drafters should strive to make the scope of persons to be protected by a domestic violence law clear and reflective of current reality.  The scope of domestic violence legislation has, in many countries, been expanded to include not only married couples but those who are or have been in intimate relationships, as well as family members and members of the same household. See: UN Handbook, 3.4.2.2.

For example, the Organic Act on Integrated Protection Measures against Gender Violence (2004) of Spain (hereinafter law of Spain) defines a domestic relationship broadly, going beyond intimate or formerly intimate relationships to include those between family or household members and minors or disabled individuals under guardianship or custody. 

Drafters should ensure the scope of domestic violence legislation reflects the dynamics of dowry-related violence by including in-laws and former spouses as potential offenders and including fiancées as potential victims in the law. In dowry-related violence, offenders may include in-laws who do not reside in the same household as their daughter-in-law. Offenders may also include former husbands who exploit religious and cultural practices to escape the reach of the law. For example, a husband may divorce his wife according to Muslim tradition by saying “I divorce you” three times, a tactic he might employ to remove himself from the reach of the law before the woman reports the case. Victims may include brides who will marry but have not been in an intimate relationship with the groom, e.g. an arranged marriage. Also, drafters should be aware of the coercive and often subtle nature of dowry demands when defining those culpable. No explicit demands for dowry may occur, but the bride’s family may feel compelled to give dowry to maintain the marriage, avert abuse of the bride by the in-laws and husbands, or meet community expectations. In other words, the husband and his family are exerting the same power and control that is characteristic of domestic violence on the bride and her family.

Promising Practice: Albania’s Law on Measures Against Violence in Family Relations includes in its definition of family members “[p]ersons related by direct blood line, including parents and adoptive children of the spouse or of the cohabitating partner.” (Article 3(3)( ç)). Such a provision would encompass in-laws who commit domestic violence against the victim.

Laws should seek to punish offenders who take or abet the taking of dowry in cases of dowry-related violence or deaths. The Expert Group Meeting paper recommends that laws penalize those who receive dowry. Drafters should avoid adopting criminal laws that penalize both the givers and takers of dowry equally because of the coercive dynamics of dowry demands. Furthermore, such laws may deter the victim or her family from reporting acts of dowry-related violence because of their own potential for culpability.