ORDERS FOR PROTECTION, DIVORCE, AND TORT REMEDIES

In addition to criminal prosecutions, victims of domestic violence may be able to obtain protection through the civil law system. Although the availability of these remedies varies by jurisdiction, orders for protection and tort remedies are two common types of civil relief. In addition, divorce remains the only avenue of relief available to battered women in many countries.

Orders for Protection

Orders for protection, often called “OFPs,” are orders issued by a judge that impose certain limitations on an abuser’s behavior or conduct. Where this remedy is available, orders are generally issued to temporarily exclude an abuser from the home or to prohibit the abuser from coming into contact with the woman (or using a third party to do so). OFPs provide women with a measure of protection while allowing them time to determine how to stay safe over the long term without immediately having to file for divorce or seek criminal sanctions.

Orders can be tailored to the specific needs of the victim. OFPs can, for example, allow the abuser to remain in the home but prohibit him from harming his wife and children, or require him to surrender any weapons he may have in his possession. OFPs can also order that a police escort be present when a batterer returns home to retrieve his possessions. Permanent OFPs may also cover custody of children, child support, and maintenance. Orders can protect not only the victim and her children but also friends and family members; an abuser may seek to harm people who helped the victim protect herself from the abuse.

Some jurisdictions allow judges to issue “ex parte orders.” These are temporary orders issued without notice to the batterer. Allowing women to obtain an OFP without having to first notify her husband that she is seeking such an order is important because if the abuser is notified, he may retaliate against her before the judge can issue the order. If a woman can show that she is in imminent danger of being harmed, the judge can issue an immediate ex parte order and set a hearing date, usually a week or two later, for a permanent order. The batterer will be notified of the OFP and the date of the hearing. At that hearing, he will be able to admit or contest the charges, and can present evidence on his behalf.

The goal of OFPs is to ensure that the person who experienced the abuse was not the person who is forced to leave the home. By being violent, the batterer has forced his partner to choose between leaving her home or enduring the abuse. OFPs place the burden of leaving the home on the person who was responsible for making that step necessary.

OFPs have advantages over criminal proceedings. Criminal cases can be long and complex. Ideally, an OFP proceeding is quick and relatively straightforward. In some jurisdictions, the standard of proof required for a criminal conviction in higher than that required for issuance of an OFP. If only criminal penalties are sought, the victim will have no legal protections from abuse during the proceeding unless the perpetrator is imprisoned during that time. OFPs are also more flexible than criminal penalties and can be tailored to the needs of the victim. Finally, civil proceedings such as OFPs offer victims the opportunity to participate in the proceeding and to choose her remedy; criminal proceedings are more often conducted without the victim’s participation and criminal sanctions do not account for many of the needs of battered women, such as economic support.

OFPs do not, however, guarantee protection. Batterers can—and unfortunately often do—violate these orders and attack and even kill their former partners. Often, police and prosecutors do not enforce these orders. Simply put, OFPs are ineffective if they are not enforced. Batterers learn that they will not be punished for violations. OFPs are sometimes difficult to obtain; women may not be able to pay court fees or travel to the nearest city to file for an order.

In addition, some advocates have argued that criminal penalties are more effective because they recognize domestic violence as a crime and embody a statement by society that this abuse will not be tolerated. While an abuser is held “accountable” in both an OFP and a criminal proceeding, the sanctions available in criminal proceedings are considerably more severe. OFPs simply limit the defendant’s conduct; criminal sanctions label that conduct as wrong.

In addition, the implementation of OFP laws can have unintended negative consequences for battered women. Advocates in the United States, for example, found that in some cases, orders were being issued against both batterer and victim (mutual OFPs). A mutual OFP has the effect of making both parties liable for violations of the order. Advocates found that batterers would manipulate women into violating the order and then threaten to report them. In addition, police faced with a mutual order often did not determine who was the primary aggressor and consequently either failed to enforce the order or arrested both parties. The Toolkit to End Violence Against Women, , created by the National Advisory Council on Violence Against Women and the United States Department of Justice’s Violence Against Women Office, available in PDF and text formats, explains further that the “consequences of arrest for victims who have committed no violent or criminal act but who are bound by a mutual order are profound. Victims may lose their good reputation, may lose custody of children or employment, may be evicted by landlords, or may be unable to post bail.”

Whether an OFP is the best option for a woman depends on the circumstances of her particular situation. Where OFPs are available, an advocate can discuss with a battered woman the pros and cons of OFPs, provide her with information about obtaining an order, and assist her in evaluating the usefulness of an OFP in her situation.

Additional information on civil protection orders or OFPs is available through the Women’s Rural Advocacy Programs and the U.S. Department of Justice.

Divorce

The only legal remedy available to battered women in many areas of the world is divorce. In many countries in the CEE/CIS region, women are required to participate in mediation or joint counseling with their husbands or undergo a waiting period before a divorce is granted. These requirements place women in jeopardy because they prevent them from separating from their husbands at a time when the danger of severe and lethal retaliation is at its greatest.

As the Toolkit notes, the “most likely predictor of whether a battered woman will permanently separate from her abuser is whether she has the economic resources to survive without him.” Divorce laws that ensure equitable divisions of marital property and provide for child support and maintenance further women’s ability to protect themselves from violence by providing them with the resources to begin financial independence from their abusers.

Tort Remedies

Some women have attempted to use tort law (the law that governs non-contractual claims for damages for harm) to obtain restitution for injuries inflicted by their batterers. Like other criminal conduct, domestic violence can give rise to liability for damages under civil law. In addition, some of the tactics used by batterers to establish and maintain control over their partners that may not be criminal in and of themselves may still give rise to a claim for damages. For example, if a batterer sabotages a woman’s employment, he may have sufficiently interfered with her economic interests to be liable under civil law.