ORDERS FOR PROTECTION,
DIVORCE, AND TORT REMEDIES
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.
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
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.
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.
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.
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.
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.
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.
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.”
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.
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.
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.
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.