The Rights of the Complainants/Survivors

 

Last Updated May, 2010

Legislation should include a statement of the rights of complainant/survivors. It must promote complainant/survivor safety, agency, and assistance and prevent the re-victimization of the complainant/survivor. It should remove barriers that may prevent them from seeking safety, such as concerns about punishment for giving dowry, child custody, access to shelters and long-term housing, and legal aid.  See:  Report of the Intergovernmental Expert Group Meeting to review and update the Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice, Bangkok, 23-25 March 2009; and Combating violence against women: minimum standards for support services (2008).

For example, Spain’s law contains a guarantee of victim’s rights (Article 17). The statement of rights should inform the complainant/survivor of legal remedies (such as the order for protection and ex parte order for protection) and the support services offered by the state.

CASE STUDY: The main text of India’s Protection of Women from Domestic Violence Act, 2005 outlines the responsibilities of the protection officer, many of which involve the victim. These include: protecting the victim from domestic violence and its recurrence; helping the victim make complaints or an application for orders of relief, including for compensation; preparing a safety plan; facilitating free legal aid and medical aid; maintaining a list of local legal, medical and service providers; coordinate shelter for the victim and assist with transportation; communicate with service providers and liaise between the victim, police and service providers; maintain records, and; provide assistance with child custody and regaining personal property. It also calls upon protection officers to assist with enforcement of the court orders, using the police to confiscate weapons, conduct visits at the victim’s home, and file a report on assets as directed by the court. While commendable, these responsibilities are overly broad for protection officers. Lawmakers should re-frame such protections as a statement of victim’s rights, and involve and assign specific responsibilities to police, protection officers, service providers and other relevant actors as appropriate. India’s Protection of Women from Domestic Violence Rules, 2006 and Protection of Women from Domestic Violence Act, 2005 do not contain a specific section on victim’s rights within the main text of the law, but append a form on aggrieved persons’ rights. Article 8(ii) of the Protection of Women from Domestic Violence Rules, 2006 requires the Protection Officer to provide the victim, in English or a local language, with “information on rights of aggrieved persons under the under the Protection of Women from Domestic Violence Act, 2005” through Form IV. This form describes the law, rights of the victim, legal remedies available and a section for listing local service providers.

Promising practice: The law of Spain mandates that disabled persons receive information about legal and support remedies “in a format that is accessible and understandable ”(Article 18)

Legislation should provide that the police must perform certain duties to support the rights of complainant/survivors. See the section below on Duties of police. In particular, laws must direct police to pursue all cases of domestic violence, dowry-related violence, and murders and suicides of women and carry out a prompt and full investigation, in accordance with official guidelines, Laws should direct police to collect objective evidence, including physical evidence, carry out a comprehensive investigation not limited to relatives’ statements, and ensure a postmortem examination in murder or suicides is carried out by a competent authority.

Support services should include transport to shelters, emergency services, and other support programs for complainants/survivors and their families. Legislation should state that the victim’s consent is required before being transported to a shelter. For example, the Law on Preventing and Combating Violence in the Family (2007) of Moldova (hereinafter law of Moldova) states that victims may be placed in emergency shelters upon the victim’s request, and if the victim is a minor, with the consent of the minor’s legal representative. Article 14  

Legislation should name an agency or agencies which are responsible for victim services and should clearly describe the responsibilities of the agency or agencies. Drafters should, in consultation with advocates and NGOs, establish minimum standards and criteria for these agencies. For example, India’s Protection of Women from Domestic Violence Rules, 2006 include Form VI for the registration as service providers under the domestic violence law. Service providers providing shelter, psychiatric counseling, family counseling, vocational training, medical assistance, public awareness, group counseling or other services may register. The form requires applicants to describe their services, infrastructure, facilities, and staff experience and backgrounds.

Legislation should provide free and accessible legal aid to victims of dowry-related violence and deaths. Legal assistance should provide victims with information about their rights, and legal remedies, as well as legal advice related to inheritance, extortion, illegal evictions and recovering personal property.

CASE STUDY: The Bangladesh Legal Aid Services Act (2000) provides free legal aid to indigent persons, particularly impoverished women and victims of acid attacks. Obtaining legal assistance under the various bar associations, however, is challenging due to the complex process set forth in the act. See: Salma Ali, Legal Approaches, Reforms, Different Areas of Laws, Assessment of the Effectiveness of Particular Legal Framework/Provisions, Lesson Learned, Good Practices & Highlighted Promising Practices in Bangladesh, Expert Group Meeting, UN Division for the Advance of Women, 2009, p. 6. Drafters should ensure that legal aid is accessible to victims and not burdened by cumbersome procedures.

Promising Practice: A Rwandan association, Haguruka, has organized training sessions for hundreds of paralegals who can educate and guide women on their rights regarding property and other issues. Drafters may wish to consider providing plans to educate women and men on women’s human rights and the available recourses where such rights have been violated. See Catherine Newbury & Hannah Baldwin, Confronting the Aftermath of Conflict: Women’s Organizations in Postgenocide Rwanda, in Women and Civil War: Impact, Organizations and Action 97, 108-08 (Krishna Kumar, ed., 2001).

Legislation should require that the court administration system that handles cases of domestic violence maintain a staff which will provide assistance to domestic and dowry-related violence victims. See: Family Violence:  A Model State Code. 

Promising practice: The law of Brazil calls for the creation of Courts of Domestic and Family Violence against Women, which should rely on a “multidisciplinary assistance team made up of professionals specializing in the psychosocial, legal and health areas.” This team is then to provide expert advice to judges, the Prosecutor’s Office and the Public Defense. Articles 29, 30.

Promising practice:  Spain’s law, which includes specialized Violence against Women courts wherein all employees from judges to court clerks must receive training on issues of gender violence and which focuses on “the vulnerability of victims.” Article 47

Legislation should provide for economic assistance to complainant/survivors. Economic independence is a necessity for complainant/survivors to escape situations of violence.  Legislation should provide for both short-term and longer- term economic and employment assistance. Laws should establish women’s legal right to the dowry by automatically placing legal title and ownership of any dowry in the bride or wife’s name. Laws should also appoint an officer to aid women in obtaining their dowry and other personal property. Laws should also establish a mechanism to help implement claims for restitution or cash compensation.

For example, the law of Brazil provides for assistance to complainant/survivors by a court determination of the complainant/survivor’s inclusion in federal, state, and municipal assistance programs, and assures the complainant/survivor priority status to receive a job transfer if the complainant/survivor is a civil servant, or guarantees his or her employment for up to 6 months if the complainant/survivor must leave his or her place of work. Article 9 

Legislation should also make provision that dowry given by the bride’s family to the married couple, while it may be shared and used by the household, is the property of and belongs to the bride. In the event of her death, laws should ensure that all dowry given will transfer to the woman’s children or to her parents if she has no children. Legislation should also provide for a civil claim for compensation, giving the victim the option of either suing for return of the dowry itself or cash compensation. 

Promising practice: India’s Dowry Prohibition Act requires that dowry (as opposed to voluntary gifts) be transferred to the woman within three months of the wedding, acceptance of dowry or her turning 18 years of age. If the dowry is not given to the woman by the prescribed time period, the woman may file a complaint against them, resulting in a fine (5,000 to 10,000 rupees), imprisonment (6 months  to two years), or both. Drafters should consider passing laws that automatically place legal title and ownership of any dowry in the bride or wife’s name. In Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628, the wife had received cash, gold, clothing and other items from her parents as dowry, but her in-laws evicted her with only three pieces of clothes and refused to return the other items. The Supreme Court found that joint enjoyment and use of dowry and presents by the household does not signify joint ownership and control over those items. With regard to dowry, any use or custody exercised by the husband or in-laws is done so as trustees, and such property belongs to the woman irrespective of its joint use.

Promising practice: The law of Spain contains a comprehensive system of aid to victims:  employment rights in Article 21, economic subsidies in Article 27, and priority access to subsidized housing in Article 28.

See: the UN Model Framework, which outlines a “statement of victim’s rights,” and Victim Protection, Support and Assistance, StopVAW, The Advocates for Human Rights.