Using Sample Laws

Below are links to a variety of sample national domestic violence laws. Some of these resources are regional or global surveys of national laws. Others are examples of laws that have been enacted in particular jurisdictions. While national laws may serve as useful models or resources, none should be transplanted into a different legal context without substantial consideration and adaptation. The principles of ensuring victim safety and batterer accountability must guide the drafting process of any new law.

Prior to drafting, it is important to address the issues of whether there is a need for a domestic violence law and whether introduction of such a law is appropriate at that particular time. The answers to these questions will depend on an evaluation of the ways in which battered women’s needs are or are not being addressed in the current legal system, the contribution that can be made by a domestic violence law to deterring batterers’ behavior, and the current political situation.

There are many different questions that might be relevant to this inquiry. For example, should the law create a separate crime of domestic violence, or should advocacy efforts be focused on ensuring the enforcement of existing laws? Most countries already have laws that criminalize many of the acts that constitute domestic violence—assault and battery, kidnapping, harassment. Making domestic violence an independent criminal offense, separate from other offences, can send a message that domestic violence will not be tolerated by the community. Creating a separate offense may also be necessary to counteract a failure by law enforcement officials to treat domestic violence as seriously as stranger violence under existing laws. On the other hand, establishing a separate offence of domestic assault may, in fact, create the impression that domestic violence is a lesser crime.

Practical considerations, as well, may dictate whether the time is right for introduction of domestic violence legislation. The political climate may not support such legislation, or the criminal justice system may not be prepared to implement the reforms. In such cases, it may be more effective to address reforms through the implementation of policies and protocols.

Whether or not domestic assault is made an independent criminal offence, a domestic violence law may still be necessary to ensure that victims are provided with support and assistance. A domestic law can create civil remedies for victims of domestic violence, such as Orders for Protection. Other provisions that allocate funding for victim protection and support, the collection of statistical information, and other efforts to combat domestic violence, can also be included.

Most importantly, however, it is vital that a draft domestic violence law be analyzed to ensure that it does not have unintended negative effects on battered women and their families. Consultation with battered women and those who provide services to them is an essential part of this process. Circulating the draft domestic violence law as widely as possible to the groups that will be affected by the new law and the agencies that will be charged with implementing and enforcing the law can help identify any potential problems that might be caused by the law. Soliciting the feedback from those who will enforce and implement the law also helps to build community support for the law.

Surveys of National Laws

The International Helsinki Federation for Human Rights’s report, Women 2000: An Investigation into the Status of Women’s Rights in Central and South-Eastern Europe and the Newly Independent States, 2000, provides an overview of the laws on violence against women in the countries of Central and Eastern Europe and the Commonwealth of Independent States.

Legislationline, provided by the Organization for Security and Cooperation in Europe (OSCE) and the European Union, contains links to domestic legislation on violence against women from 55 countries in CEE/CIS, Europe and North America. Legislationline also provides links to the law of the United Nations and the Council of Europe on violence against women.

SEELINE, the South Eastern European Legal Initiative, provides analyses of the following issues:

These analyses are provided for the following countries: Albania, Bulgaria, Bosnia & Herzegovina, Hungary, Macedonia, Moldova, Romania, Turkey and Yugoslavia. SEELINE also provides links to the constitutions of Albania, Bosnia & Hercegovina, Bulgaria, Croatia, Greece, Hungary, Macedonia, Moldova, Romania, Slovenia, Turkey and Yugoslavia.

The Council of Europe publishes Legislation in the member States of the Council of Europe in the field of violence against women (EG (2001) 3 rev. Volumes I and II), Strasbourg, November 2002. Volume 1 and Volume II of this publication contain an overview of laws relating to violence against women in each of the Member States.

The Compendium: Model Strategies and Practical Measures on the Elimination of Violence Against Women in the Field of Crime Prevention and Criminal Justice, published by the International Centre for Criminal Law Reform and Criminal Justice Policy in March 1999, offers an overview of laws relating to violence against women that have been adopted in many jurisdictions throughout the world. Although the report focuses on criminal laws and procedures, it also includes a discussion of civil law remedies.

Specific Domestic Violence Legislation: Examples and Advantages, Liz Kelly, January 2001, analyzes and evaluates domestic violence laws enacted in a number of different countries. Kelly articulates some of the ways in which these laws differ, identifies innovative strategies that might be adopted in the United Kingdom, and articulates advantages of the different approaches.

State and Federal Domestic Violence Laws in the United States

The Violence Against Women Act of 1994 (VAWA) has provisions designed to improve both victim services and arrest and prosecution of batterers. As described by the National Coalition of Domestic Violence, VAWA created a national domestic violence hotline and allocated substantial funds for a number of different kinds of initiatives and programs, including shelters and other services for battered women, judicial education and training programs, and programs to increase outreach to rural women. VAWA not only reauthorized STOP grants, which support programs designed to improve law enforcement and prosecution response to domestic violence, but also mandated that domestic violence advocates be involved in the planning and implementation of these programs. VAWA also reauthorized funds for Victim and Witness Counselors, who work with domestic violence victims in federal prosecutions.

A provision of VAWA that created a federal civil right of action—a right of action that would have allowed a victim of violence, such as sexual assault or domestic violence, to sue the perpetrator for civil damages resulting from the attack—was challenged as unconstitutional under United States law. A brief submitted in opposition to the challenge emphasized that VAWA was consistent with the United States’ international legal obligations to provide victims of gender based violence with effective remedies. Although that particular provision of the law was struck down by the Supreme Court as unconstitutional, the remainder of the law remained intact.

The Victims of Trafficking and Violence Prevention Act of 2000 created a new form of relief for victims of domestic violence in the United States. The new law created “U-Visas,” which allow immigrants who are victims of certain crimes, including domestic violence, or have information about those crimes, to apply for residency in the United States. A law enforcement official must certify that the individual’s assistance is necessary for the investigation.

The Institute for Law and Justice publishes Review of State Laws Relevant to Violence Against Women (Domestic Violence, Sexual Assault, Stalking, and Related Laws), Neal Miller, 1 December 2002. This report contains a survey of U.S. state laws on domestic violence, including laws that affect prosecutor and police policies.

Enhanced Penalties Statutes, by Eve Zamora, describes the different kinds of enhanced penalties for domestic violence that have been enacted in different states in the United States.

Domestic Violence & Stalking: A Comment on the Model Anti-Stalking Code Proposed by the National Institute of Justice, Nancy K.D. Lemon, December 1994, provides an excellent overview of some of the issues that should be considered in drafting anti-stalking legislation. Critical to such legislation is that it account for the domestic violence context in evaluating whether the behavior is threatening, include implied threats in the definition of stalking, and be based on a “reasonable woman” standard, not a “reasonable person” standard in determining whether behavior was threatening.

Minnesota’s Domestic Abuse Act, Section 518B.01 of Minnesota’s statutes, creates a civil remedy of an Order for Protection (OFP), designates the procedures that must followed in applying for and granting an OFP, and describes the kind of relief that can be granted. For example, the Act sets forth the circumstances under which an ex parte order may be granted and requires that a hearing be held within ten days after the issuance of such an order. The Act also describes penalties for violations of both OFPs and No Contact Orders, orders issued against a defendant in criminal proceedings for domestic violence, and describes how law enforcement officials should enforce such orders. In addition, the Act includes a number of provisions that facilitate victims’ access to the legal system. For example, the Act waives the filing fees for orders of protection and provides that an individual filing for an OFP may request that his or her address not be disclosed to the public.

Section 609.2242 of Minnesota’s statutes criminalizes domestic violence. Under this law, an individual commits the crime of domestic assault by causing another to fear immediate bodily harm or death, or inflicting, or attempting to inflict, such harm. Penalties are increased when the perpetrator has previously committed one or more domestic assaults within a certain period of time.

Minnesota has also enacted a domestic violence arrest law, Section 629.341, that allows officers to arrest an individual without a warrant if there is probable cause to believe that the individual has committed domestic abuse, and that requires officers to provide victims of domestic violence with notice of their legal rights.

Section 629.342 of Minnesota’s statutes provides that police departments must develop policies and protocols for dealing with domestic violence, and explicitly requires police officers to assist victims in obtaining medical treatment and providing the victim with a notice of his or her legal rights.

New York State’s Domestic Violence Prevention Act creates a comprehensive network of services for victims of domestic violence. The Act requires social services districts to offer emergency shelter and other services, including advocacy, counseling and referrals. The Act requires shelters that receive funding under its provisions must to maintain a confidential address and also mandates that other government agencies keep such addresses confidential.

New York State’s law on warrantless arrest permits localities to establish mandatory arrest regulations or policies. The state’s law on criminal procedures for family offenses directs officers investigating “a family offense” under that provision to “advise the victim of the availability of a shelter or other services in the community” and to “immediately give the victim written notice of the legal rights and remedies available to a victim of a family offense.” This law provides an example of the kind of information an officer might give to a victim, and mandates that the notice be prepared in multiple languages if necessary.

New York State also passed a law creating an Office for the Prevention of Domestic Violence. The Office is charged with advising the governor and legislature “on the most effective ways for state government to respond to the problem of domestic violence” and to “develop and implement policies and programs designed to assist victims of domestic violence and their families, and to provide education and prevention, training and technical assistance.”

California Passes Tough New Domestic Violence Laws, Marie De Santis, Women’s Justice Center, provides an overview of California’s new domestic violence law and discusses the ways in which the law could be further improved. The California Penal Code includes links to Section 836, the state’s law on arrest, as well as sections of Part 4 Title 5 of the Penal Code, governing the law enforcement response to domestic violence.

California’s Family Code contains provisions governing protections for victims of domestic violence, including the issuance and enforcement of OFPs (called “protective orders” under the Family Code), and the duties of law enforcement officers.

Chapter 209A of the General Laws of Massachusetts provides for the issuance and enforcement of OFPs, the confidentiality of the victim’s address, and the abuser’s surrender of weapons. Section 7 of Chapter 209A requires judges to conduct searches of a defendant’s record “to determine whether the named defendant has a civil or criminal record involving domestic or other violence,” sets forth the warning about penalties for violation of an OFP that must be provided to the batterer, and details the kinds of communications that, when a batterer has been sentenced to a batterers’ treatment program, should occur between the program, battered women’s shelters, the court, and the probation office for the purpose of ensuring victim safety and batterer accountability. Treatment for substance abuse may be ordered “[i]n addition to, but not in lieu of” batterers’ treatment programs. Finally, this provision requires the defendant to pay the victim restitution for damages in the case of a violation of a restraining order issued by another jurisdiction.

Sample Orders for Protection

The New York State court system offers on-line forms for filing for an Order for Protection.

The Minnesota state court system has also offered on-line access to the forms required for filing an Order for Protection.

A Sample Final Protection Order was published by the Full Faith and Credit Project in June 2000.

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