The Domestic Violence Act of 2010 (the “DVA”) defines and prohibits domestic violence. The penalty for domestic violence is imprisonment not to exceed two years or the payment of a fine not to exceed forty-eight currency points, or both. At the Court’s discretion, the perpetrator may also have to provide monetary compensation to the victim. Romantic and other familial relationships are “domestic,” and marriage is expressly not required. Domestic violence complaints may be brought before local council courts (“LC courts”) pursuant to the procedures outlined in the DVA, which require that the LC refer the matter to the police and local magistrate court if the perpetrator is a repeat offender, the perpetrator is likely to continue to harm the victim, and the LC court’s opinion is that police and magistrate court involvement is warranted. LC courts must also inform the police and magistrate if there are children involved in the domestic relationship. Appeals and other procedural details about LC court proceedings can be found in the Local Council Act of 2006. In complaints made to police officers, survivors have the right to give their statement to an officer of the same sex. The DVA requires that magistrate courts follow the Family and Children Court Rules (from the Children Act of 2006) in domestic violence cases. Finally, the DVA sets parameters for interim and permanent protection orders. The DVA and the Penal Code do not criminalize a husband’s rape of his wife, or so-called “marital rape.” A proposed bill, the Domestic Relations Bill of 2003, would criminalize such actions, but Parliament has repeatedly declined to pass it.
Women and Justice: Keywords
Legislation
Domestic Case Law
Sanchez v. Torres Appellate Court of Illinois First District Second Division (2016)
After several instances of abuse by Defendant, Plaintiff sought an emergency order of protection in November 2014. During the hearing, the trial court found that there was abuse but denied a plenary order of protection and instead issued a civil restraining order, which is a less severe remedy. On appeal, the Appellate Court of Illinois found that Illinois statute states that when a trial court finds abuse against the petitioner, it must issue an order of protection and remanded the case to the trial court to issue this order.
Washington v. Hodgins Court of Appeals of Washington Third Division (2015)
Hodgins had repeated misdemeanor convictions for domestic violence when the state of Washington brought charges against him for violating an order of protection on seven different occasions. Hodgins pled guilty to two of the seven counts of domestic violence, but the court did not include his prior misdemeanor convictions in its calculation of his offender status for purposes of sentencing. The Court of Appeals found that, under the facts of the case and relevant Washington law, Hodgins should have received an extra point on his offender status for any prior repetitive domestic violence offenses. Accordingly, the trial court erred in failing to consider his convictions in determining his offender status at sentencing. The Court of Appeals remanded the case for sentencing with a higher offender status.
Decision 2012Do14788 Supreme Court of South Korea (2013)
After threatening and assaulting the Victim (wife) with a deadly weapon, the Defendant (husband) had violent sexual intercourse with his wife after they had started using separate rooms due to consistent dispute.” The Supreme Court found that the term ‘female’ as the victim of rape as provided by Article 297 of the Criminal Act included the offender’s legally wedded wife and that the crime of rape was established when the husband had sexual intercourse with his wife by disabling or hindering resistance through violence or intimidation in a sustained marriage. The Supreme Court stated that the legal interests protected by rape laws are not ‘women’s fidelity’ or ‘sexual chastity’ concepts based on the premise of a man as a current or future spouse, but a woman’s own sexual autonomy as a free and independent individual. Therefore, the Court concluded that the crime of rape was established in this forced marital sex case.
Supreme Court Decision 2005Meu1689 Supreme Court of South Korea (2005)
The Plaintiff sought a divorce from the Defendant. Upon requesting approval of the divorce from the Defendant, the Plaintiff was slapped by the Defendant. Additionally, the Defendant physically confronted the Plaintiff on a separate occasion, resulting in fractures of the Plaintiff’s face and neck. Despite such physical abuse, the lower court found that the relationship between the Plaintiff and the Defendant did not reach a degree in which it was impossible to restore. On appeal, the Supreme Court reversed, finding that the use of violence in a conjugal relationship cannot be justified. In addition to emphasizing the severity of the Plaintiff’s injuries, the Supreme Court noted that the lower court should have reviewed in detail how the Defendant’s use of violence influenced the marital relationship, whether the marital relationship between the Plaintiff and the Defendant reached a point in which it was impossible to restore due to the loss of love and trust that should form the foundation of the marital relationship, and whether it would prove unbearable for the Plaintiff to remain in the relationship. Unless it can be proven in the affirmative that the parties can restore the relationship and it would not be unbearable for the Plaintiff to remain in such a relationship, the lower court should grant the Plaintiff’s claim for divorce. Thus, the lower court erred when it failed to examine these factors and the extent of responsibility between the Plaintiff and the Defendant. Consequently, the Supreme Court reversed the finding of the lower court and remanded.
R v. Hamid Supreme Court of New South Wales (Court of Criminal Appeal) (2006)
The Respondent in this case faced a prison term of two years and six months based on his convictions for 9 counts of serious domestic violence offenses. The Respondent was also ordered to refrain from any harassment or threatening conduct toward the victims (or those in domestic relationships with the victims) for ten years. In response to the sentencing of the Respondent, “the Crown submitted that the sentences imposed upon the Respondent were manifestly inadequate.” The Crown noted that “a number of individual sentences were themselves inadequate given the objective seriousness of the crimes involved.” The Court emphasized the importance of both specific and general deterrence for domestic violence offenses and noted “[r]ecognition of the harm done to the victim and the community as a result of crimes of domestic violence is important.” The Court ultimately held that “the sentences imposed upon the Respondent were manifestly inadequate” and resentenced the Respondent.
People v. Reynolds Court of Appeals Fourth District (1995)
The defendant was convicted of violating an order of protection against his ex-wife by sending her a note with the intent to harass her. He appealed contesting that the statues violates the First and Fourteenth Amendments because it is vague and overbroad. The Court of Appeals rejected the arguments that it was too vague or overbroad because these issues had already been determined previously in other cases. The Court also rejected the defendant’s arguments that the trial court erred in excluding evidence and that the defendant was deprived of a fair trial because of the level of deference given to the state on review.
People’s procuratorate of Nanjing City Jiangsu Province v. Ji Xingpeng Supreme Court of Jiangsu Province (2014)
Wang v. Luo Court of Chaling County, Hunan Province (2013)
Cruz v. Canada (Minister of Citizenship and Immigration) Immigration and Refugee Board (2012)
This case concerns an application for review of a decision made by the Immigration and Refugee Board, which had determined a family applying for protection, a mother and two minor children, did not have a “well-founded fear of persecution” and were not persons in need of protection. The family expressed fear of domestic violence upon a return to Mexico. During appeal, the Federal Court held that the Immigration and Refugee Board was in error “when it determined that state protection was available to the minor Applicants in Mexico.” The Court noted that the children’s individual circumstances and fear were not properly assessed and ought to have been taken into consideration by the Board: specifically, “[t]he evidence adduced with respect to the situation of each individual child should have triggered separate analyses of risk.” Furthermore, the Court noted that the Board should have considered “the ability of the Mexican state to protect these children” as individuals. The application for review was allowed to proceed.
Corneau v. Canada (Minister of Citizenship and Immigration) Refugee Protection Division of the Immigration and Refugee Board (2011)
This case concerns a decision of the Refugee Protection Division of the Immigration and Refugee Board. In response to an application for protection by Ms. Corneau, who sought protection from domestic violence perpetrated by her partner in Saint Lucia, the Board held that authorities in Saint Lucia were “capable of providing the applicant with adequate protection.” The applicant sought review of this determination. The Federal Court held that the Board’s finding was unreasonable, noting that “[t]he good intentions of a state to protect its citizens do not constitute state protection where in practice protection does not exist.” The Court stated that the Board failed to give adequate weight to contrary evidence and further noted that applicants for state protection are “not required to seek protection or assistance from non-governmental organizations or administrative agencies in order to rebut the presumption of state protection.”
HKSAR v. Lau Chung-tim High Court of Hong Kong Special Administrative Region Court of First Instance (2014)
Defendant pled guilty to two counts of throwing corrosive fluid with intent to do grievous bodily harm, in contravention of section 29(c) of the Offences Against the Person Ordinance, Cap 212. The corrosive fluid thrown was sulphuric acid, concentrated at 87%. Sulphuric acid at that concentration is highly corrosive and capable of causing severe burns to the skin and permanent damage to the eyes. His victims were his estranged wife and his 21-year-old son. At the time of the incident, Defendant was 65 and he was in the process of divorce, living apart from his estranged wife. Defendant returned to the marital home and became emotional, taking a knife and threatening his soon to be ex-wife. When his son, the second victim, saw what was occurring, he stood in front of his mother to protect her. Defendant opened a bottle of liquid and poured it on his estranged wife’s chest. The liquid also splashed onto his son. Because his wife was wearing only a nightgown and his son only underwear, both were burned. The victims rushed to the bathroom to attempt to wash off the liquid. They locked the door and called for help, but Defendant kicked the door in, causing a subsequent struggle. After the situation ended, the victims were taken to a hospital, where it was determined that Defendant’s estranged wife suffered 38% body burns and the son suffered 25% surface burns. The Court noted that “[acid throwing] is a very serious offence of a type which sadly occurs far too often in Hong Kong. . . . The offender aims to punish the victim for the emotional damage and to ensure that the victim is disfigured or incapacitated. The defendant here was intent on punishing the first victim for proceeding with the divorce.” The maximum penalty for acid throwing is life imprisonment. In this case, the judge passed down a sentence of 10 years’ imprisonment.
People of the Philippines v. Edgar Jumawan Supreme Court of Philippines (2014)
The appellant was convicted on two counts of marital rape. On appeal, the appellant argued that marital rape was not the equivalent of non-marital rape. This was the first documented case on marital rape to reach the Supreme Court. The Supreme Court rejected the appellant’s argument as essentially an attempt to revive old and now rejected standards that a husband could not be convicted of marital rape because of the “implied consent” of his wife. It found that under modern jurisprudence, the appellant’s argument would deny spouses equal protection under the constitution and that the elements and quantum of proof that support a moral certainty of guilt in rape cases should apply uniformly regardless of the legal relationship between the accused and his accuser.
PGA v. The Queen High Court of Australia (2012)
This case concerns charges of assault and rape brought against a husband, the appellant, for the rape of his wife in 1963. In an appeal to the High Court, the appellant sought immunity for the rape of his wife, arguing that marital rape was not illegal at the time the events took place. The appellant argued that his wife gave irrevocable consent to sexual intercourse upon their marriage in 1962 pursuant to the era’s common law. The Court considered existing laws and writings from the time period in question, questioning whether the aforementioned immunity ever actually existed and ultimately deciding that “if it did, it had ceased to do so sometime before 1963.” On the basis of this analysis, the Court dismissed the appeal.
Jesus C. Garcia v. The Honorable Ray Alan T. Drilon, et al. Supreme Court of Philippines (2013)
The plaintiff successfully sought a Temporary Protection Order against her husband under Republic Act No. 9626 Against Women and Their Children. The husband appealed, claiming the Act to be unconstitutional and the order therefore invalid because the Act favored women over men as victims of violence and abuse to whom the State extends its protection. The Supreme Court held that the Act was valid, highlighting the unequal power relationship between women and men; that women are more likely than men to be victims of violence; and the widespread gender bias and prejudice against women, which all make for real differences justifying the law.
Case Number E.2005/151, K. 2008/37 Constitutional Court of Turkey (2008)
The Constitutional Court held that a provision in the Turkish Penal Code that increases the penalty by half for the crime of laceration if committed against family members is constitutional. Although such a penalty treats family members differently than non-family members, the Court found that such differential treatment did not violate the equality principle under the Turkish Constitution. Under the equality principle, criminals who have committed the same offence may not be subject to the same penalty if they have different legal statuses. Here, the Court found that the Turkish Legislature, through the Turkish Penal Code, expressed a preference for family members, giving family members a different legal status and thus the provision did not violate the equality principle. In reaching its decision, the Court also noted that Turkey has taken “extensive legal and administrative measures” to prevent and reduce domestic violence in Turkey. Because the state must protect family members from danger and family members have a different legal status, the Court found that the provision increasing the term of imprisonment and fine for laceration against a family member is constitutional.
Case Number E.1999/35, K.2002/104 Constitutional Court of Turkey (2002)
The Constitutional Court found that the legislature could take necessary measures to reduce violence within families. Articles 1.1 of the Law on the Protection of the Family allows judges to take measures against one spouse, not both, and not against the children or members of the family, if a spouse has subjected another family member to domestic violence. The Gulyaly Peace Court found that because the Articles did not provide for an injunction or penalty if a child committed a violent act, rather than a spouse or parent, the Articles violated the principle of equality. Relying on Article 41 of the Turkish Constitution, which focuses on the family as the foundation of Turkish Society and gives the legislature the power to protect the family unit, the Constitutional Court found that Article 1.1 does not violate the Constitution because it protects the family unit and ensures peace within a family unit. The Court also found that the provision did not violate the Turkish equality principle, because the legal status of spouses differs from that of other family members and just cause exists to treat such groups differently.
People of the Philippines v. Marivic Genosa Supreme Court of Philippines (2004)
Marivic Genosa admitted to killing her husband after a quarrel in their house and was sentenced to death in 1998. The Supreme Court of the Philippines heard an appeal of this decision under the pretense that Ms. Genosa was a victim of battered woman syndrome (BWS). The appeal posited that the consistent abuse Genosa faced at the hands of her husband had caused BWS which meant she was in a constantly threatened state and acted in self-defense when she killed him. The court ruled that as a victim of BWS, her husband’s cumulative provocation had broken down her self-control and made the murder an act of passion. The court repealed Ms. Genosa’s death sentence and released her in consideration of her six years spent in prison. This is a landmark case in acknowledging the deep psychological impact abusive relationships have on women. By setting a legal precedent to consider BWS as an extenuating and real circumstance, the Supreme Court promoted a stronger legal recognition of and protection for abused women.
Minister of Safety and Security v. Katise Supreme Court of Appeal of South Africa (Hoogste Hof van Appèl van Suid Afrika) (2013)
Mr. Katise was arrested when police were called to his home and found that he had attacked his wife. Charges for domestic violence under South Africa’s Domestic Violence Act 116 of 1998 were eventually repealed and after suing for unlawful arrest and detention on the grounds that there was no warrant for his arrest, Mr. Katise was awarded damages. In an appeal, the judge overturned this ruling, citing s 40(1)(q) of the Criminal Procedure Act which allows peace officers to arrest anyone reasonably suspected of violating the Domestic Violence Act of 1998. The judge in this case took an important stand against leniency on domestic violence cases, giving peace officers far more latitude to protect the rights of women and furthering the protection of women’s rights in South Africa, a country marred by sexual violence.
Mnr. Katise is gearresteer toe die polisie na sy huis geroep is en gevind het dat hy sy vrou aangeval het. Klagtes vir huishoudelike geweld onder Suid-Afrika se Wet op Huishoudelike Geweld 116 van 1998 is uiteindelik herroep nadat hy gedagvaar het vir onregmatige arrestasie en aanhouding op grond daarvan dat daar geen lasbrief vir sy inhegtenisneming was nie, is Mnr. Katiseer skadevergoeding toegeken. In 'n appèl het die regter hierdie beslissing omgekeer, met verwysing na 40(1)(q) van die Strafproseswet wat toelaat dat vredebeamptes enige iemand wat redelikerwys verdink word van die oortreding van die Wet op Huishoudelike Geweld van 1998 gearresteer mag word. Die regter het in hierdie geval 'n belangrike standpunt ingeneem teen die toegeeflikheid van sake rakende gesinsgeweld, wat vredebeamptes baie meer ruimte gee om die regte van vroue te beskerm en die beskerming van vroue se regte in Suid-Afrika te bevorder, in 'n land wat deur seksuele geweld gekenmerk word.
File No. 13C/175/2003 District Court Bratislava II (2006)
Ms. M. M. (the “Claimant”) filed an action with the District Court Bratislava II against her husband, Mr. Š. M. (the “Defendant”) to revoke his right to use the common household. This action was subsequently granted by the District Court Bratislava II, first in the form of a preliminary decision revoking the Defendant’s right to use the apartment and later as a final decision in the form of Decision No. 5 T 26/04. The court also found the Defendant guilty of the criminal offence of battery of a close relative and entrusted person and sentenced him to imprisonment. The Defendant had frequently insulted the Claimant, punched her, thrown pots at her and forced her by threats to have sexual intercourse with him, which made the Claimant afraid to use the common household with the Defendant. Although they were divorced, they had not agreed on a property settlement and thus, the apartment formed a part of the undivided co-ownership of spouses and the Defendant retained his rights to the apartment. Pursuant to Section 146(2) of the Civil Code, if further co-habitation with a spouse, divorced spouse or close person who is a common user of the same household becomes insufferable due to his / her physical or psychological violence or threats thereof, the court may, upon a petition, revoke or limit such violating party’s right to use such common household. In this case, the District Court Bratislava II revoked the Defendant’s right to use the apartment under the abovementioned provision of the Civil Code.
Decision No. 11/1995, File No. 6 Tz 17/94 Supreme Court of the Slovak Republic (1994)
Ms. V. Ž. (the “Aggrieved”) was sexually assaulted by her mother’s partner, Mr. M. P. (the “Accused”) who had lived with them in same household for more than 5 years. The Bratislava I County Prosecutor terminated criminal proceedings after the Aggrieved refused to testify and to give her consent to initiate the criminal prosecution. The Attorney General of the Slovak Republic challenged this termination arguing that the Aggrieved was not entitled to refuse her testimony or withhold permission to initiate criminal proceedings. The Supreme Court of the Slovak Republic ruled that by testifying against the Accused, a person with whom she has family like ties, she could suffer considerable harm herself, as the harm reflected upon the Accused could be perceived as a harm done to the Aggrieved herself and therefore she was in a position to refuse such testimony. The Attorney General challenged the decision and the Supreme Court admitted the insufficient assessment of the relevant criminal offence as only restraint of personal freedom and determined the relevant criminal offence as a combination of the criminal offences of sexual abuse and blackmail. Pursuant to Section 163a of the former Criminal Procedure Code , the initiation of criminal prosecution for these criminal offences was subject to the consent of the aggrieved person. Whereas, the Aggrieved was a minor and did not have full legal capacity to provide such consent, she should have been represented by her legal representatives, i.e., her parents. In this case, since her mother was the partner of the Accused, there was a high risk of conflict of interest. In such cases, the parents are replaced by other legal representatives, i.e., court appointed custodians. Since the Bratislava I County Prosecutor failed to observe these requirements, the Supreme Court superseded its resolution and ordered a new one to follow all of the findings made by the Supreme Court. According to current legislation, the prosecution of defendants of two related criminal offences, i.e., sexual abuse and blackmail, is no longer subject to the consent of the aggrieved person. Nonetheless, this Supreme Court Decision No. 11/1995 is applicable, especially in regard to the mandatory legal representation of aggrieved minors. Pursuant to Section 211 of the current Criminal Procedure Code, the prosecution of offenders of other criminal offences (e.g., copyright violations or theft) is still subject to the consent of the aggrieved person. Minors must be represented by their legal representatives not only in relation to giving consent, but in performing any relevant legal action. The relevant authorities shall always examine whether there is possibility of a conflict of interest and if so, exclude such representatives and ask the relevant court to appoint a custodian.
File No. 7C/203/2006 District Court Prešov (2007)
File No. 1T 107/01 District Court Martin (2001)
Mr. X (the “Accused”) under the influence of alcohol physically assaulted his wife Mrs. Y (the “Aggrieved”) by hitting her head and face. Subsequently, the Accused physically assaulted the children of the Aggrieved from her first marriage. When the Aggrieved attempted to protect her children, the Accused beat her with his fists and kicked her. The Aggrieved and her children suffered various minor injuries which caused the inability to work for less than six days. The court ruled that the Accused had committed the criminal offence of attempted bodily harm under Section 221 (1) of the former Criminal Code , the criminal offence of violence against an individual or group of individuals under Section 196 (1) and Section 197a of the former Criminal Code and sentenced him unconditionally to imprisonment for six months. However, pursuant to Section 58 (1a) and Section 59 (1) of the former Criminal Code , the court suspended this imprisonment sentence for a probationary period of 15 months. Moreover, the Accused was obliged to pay damages to Aggrieved for the harm they suffered.
File No. 5T 33/2007-41 District Court Košice I (2007)
Mr. X (the “Accused”) threatened to kill his ex-wife, Mrs. Y, (the “Aggrieved”) by cutting her throat and hitting her head with a hammer. Two days later, the Accused threatened to kill the Aggrieved and her whole family and thereby caused the Aggrieved to fear that he would carry out such threats. The court ruled that the Accused had committed the criminal offence of dangerous threat under Section 360 (1) of the Criminal Code and sentenced him unconditionally to imprisonment for sixteen months. The court ordered the Accused to serve his term of imprisonment in a minimum security correctional facility under Section 48 (2a) of the Criminal Code.
File No. 7T 167/03-121 District Court Košice II (2004)
Over the course of seven years, Mr. X (the “Accused”) caused substantial physical and psychological suffering to his wife Mrs. Y and his daughter Ms. Z (jointly the “Aggrieved") including strangling, physical assaults, threats of killing, and constant humiliation. Furthermore, the Accused prevented his daughter from entering the apartment, where she lived with her parents. During the main trial, the Accused refused to testify and so did the Aggrieved Persons. However, the Court disposed of witness testimonies of the Aggrieved Persons provided at the preliminary hearing, according to which the spouses had permanent conflicts due to the alcoholism of the Accused. An expert opinion confirmed that the Aggrieved Persons had suffered from battering. The court found the Accused guilty of the criminal offence of battery of a close relative and entrusted person pursuant to Section 215 (1a) of the former Criminal Code and sentenced the Accused to imprisonment for a term of 2 years. However, pursuant to Section 58 (1a) and Section 59 (1) of the former Criminal Code, the court suspended this sentence for a probationary period of 3 years.
File No. 5T 3/07-114 District Court Košice - okolie (2007)
Over the course of two years Mr. X (the “Accused”) abused his wife Ms. Y (the “Aggrieved”) by constantly humiliating and beating her. As a result, the Aggrieved experienced substantial psychological trauma. According to the Aggrieved, the aggressive behavior of the Accused occurred on a daily basis and despite her refusal of intercourse, the Accused forced her into sexual intercourse by use of violence. The daughter of the Aggrieved stated that she saw the Accused slapping and kicking her mother and after the Accused found a girlfriend, relations between him and the Aggrieved deteriorated and resulted in the decision of the Aggrieved to leave the common household with her daughter and search for professional psychological care. Expert opinions confirmed that the Aggrieved suffered psychological trauma of abused woman that resulted in loss of confidence, depressions, anxiety. The court found the Accused guilty of the criminal offence of battery of a close relative and entrusted person pursuant to Section 208 (1a) of the Criminal Code and sentenced him to conditional imprisonment for a term of 3 years with a probation period of 30 months. Furthermore, the Court issued the Accused a 5 meter restraining order.
File No. 6T 156/05-301 District Court Košice II (2008)
Over the course of two months Mr. X (the “Accused”) threatened to kill his wife, Mrs. Y, (the “Aggrieved”) and to blow up the apartment. His actions and verbal assaults caused the Aggrieved to fear that he would carry out his threats. The Aggrieved and other witnesses attested to the Accused’s violent behavior. The Accused had previously been found guilty of similar violent acts for which the court had imposed a conditional sentence. The Aggrieved alleged that since the Accused was released from custody, his behavior had not changed and that he still had been insulting and threatening her. Other witness statements supported these accusations. According to an expert opinion, the Accused was emotionally unstable and in terms of his patriarchal understanding of the head of family, the Accused behaved towards the Aggrieved dominantly and without respect. The court found the Accused guilty of the criminal offence of violence against an individual or group of individuals pursuant to Section 197a of the former Criminal Code and imposed a sentence of imprisonment for 1 year.
B., M.P. v. G., R.A. Lomas de Zamora Family Court #3 (2006)
M.P.B. suffered repeated domestic violence and abuse at the hands of her husband R.A.G. In civil suit, M.P.B. was granted exclusive control of the spousal home and custody of her children. The court imposed a restraining order on R.A.G.; he was unable to go within 300 meters of the family home, his wife’s work, or the 9 and 12 year-old children’s school. This case is fairly punitive toward the father by Argentinean standards. The judge cited both Argentinean statutes and international human rights law in arriving at her decision.
M.P.B. sufrió repetida violencia doméstica y abuso a manos de su esposo R.A.G. En una demanda civil, a M.P.B. se le otorgó el control exclusivo de la casa del cónyuge y la custodia de sus hijos. El tribunal impuso una orden de restricción a R.A.G: no podía ir a menos de 300 metros del hogar familiar, del trabajo de su esposa o de la escuela de niños de 9 y 12 años. Este caso es bastante punitivo hacia el padre para los estándares argentinos. El juez citó tanto los estatutos argentinos como el derecho internacional de los derechos humanos al llegar a su decisión.
R. v. Bear Provincial Court for Saskatchewan (1999)
Ms. Bear was charged with aggravated assault for stabbing her partner more than a dozen times in his abdomen, arms, and face, leaving him in critical condition. Ms. Bear also received serious cuts to her leg and hand in the course of the altercation. In her defense, Ms. Bear claimed that she acted in self-defense and offered expert testimony that she and the victim were caught up in a cycle of violence commonly referred to as “battered woman syndrome.” Both parties were intoxicated at the time of the incident, and Ms. Bear testified that her partner was blocking the only exit. Ms. Bear had a history of assault, but she also had a history of involving herself in violent relationships. The trial judge accepted the theory of “battered woman syndrome” and found Ms. Bear not guilty on the charge of aggravated assault, holding that she had clearly acted in self-defense and that the lethality of her actions was not unreasonable given her situation.
Cobb v. Cobb Wyoming Supreme Court (2000)
Appellant-mother challenged the order of the District Court, awarding child custody to appellee-father and giving her the same visitation rights that appellee had when appellant had custody. The Supreme Court of Wyoming affirmed the order because domestic violence suffered by appellant at the hands of a boyfriend in front of the children was a change in circumstances that warranted a change in custody to protect the parties’ children. Wyo. Stat. Ann. § 20-2-113(a) provides that “the court shall consider evidence of spousal abuse or child abuse as being contrary to the best interest of the child.” Although the abuse of mother was not technically “spousal” abuse because they were not married, the Supreme Court of Wyoming agreed with the District Court that the statute applied to non-marital domestic relationships. Therefore, domestic violence experienced by the mother warranted a change in custody to protect the children from potential abuse and was in their best interest.
Raynes v. Rogers Vermont Supreme Court (2008)
Here, the parties lived together for approximately six years. Following a separation, plaintiff moved out, and the parties disputed personal property ownership. On one occasion, the plaintiff went to the defendant’s house for dinner and the parties got into an argument. The plaintiff picked up the defendant’s small dog and took it with her to leave. This led to the defendant kicking the plaintiff’s car door and using physical force against the plaintiff in an attempt to recover the dog. The plaintiff obtained a temporary abuse order. At the hearing for that order to be made permanent, the defendant chased the plaintiff, grabbed her, kicked the door of her car, and hit her in the face. The defendant also began to call the plaintiff and monitor her. The family court found this warranted the plaintiff to be in fear of further harm. The defendant argued that he was justified in using force to protect his dog, as it was his personal property. The court rejected this argument and found that the common-law defense of property is irrelevant in the determination of whether a victim needs protection from abuse.
Yemshaw v. Hounslow LBC United Kingdom Supreme Court (2011)
The appellant (Y) appealed against a decision that the respondent local authority had been entitled to find that she was not homeless. Y had applied to the local authority for housing assistance, claiming that although her husband had not physically assaulted her or threatened to assault her she was scared that he would, and had left him. Under the Housing Act 1996 s.177(1) a local authority was obliged to rehouse a person where it was not reasonable for that person to continue to occupy accommodation if it would lead to domestic violence. The local authority decided that it was still reasonable for Y to occupy the matrimonial home. A review of that decision was unsuccessful as the panel considered the probability of domestic violence to be low. Upon appeal, the county court and the Court of Appeal concluded that the term "violence" in s.177(1) required some sort of physical contact. The issue in the instant appeal was whether the word "violence" in s.177(1) included other forms of violent conduct.
State ex rel. Marshall v. Hargreaves Oregon Supreme Court (1986)
Here, the relator-wife sought the issuance of a writ of mandamus to compel defendant circuit court judge to conduct a hearing on her petition for a restraining order and to prevent abuse, pursuant to the Oregon Abuse Prevention Act, Or. Rev. Stat. §§ 107.700-107.730. The Supreme Court of Oregon issued a peremptory writ, requiring the judge to conduct forthwith a hearing on the wife’s petition for a restraining order and to prevent abuse and to determine whether there existed an immediate and present danger of abuse to the wife. Defendant-circuit court judge had refused to issue a restraining order to the benefit of the relator-wife, because she had already obtained two earlier restraining orders based upon allegations similar to those the relator presented in the present case, but had promptly dismissed them. However, the judge did not hold a hearing on the merits as contemplated by ORS 107.718(1) to determine whether the relator was in immediate and present danger of abuse by the husband. The Supreme Court of Oregon issued a peremptory writ of mandamus, finding that defendant-circuit judge had no discretion to deny relator a hearing. The Court further ordered defendant to conduct such a hearing to determine whether there is an immediate and present danger of abuse to relator, but expressed no opinion on the merits of the petition for a restraining order.
Davis v. Johnson United Kingdom House of Lords (1978)
The House of Lords ruled that in domestic violence cases, no distinction should be made between married and unmarried couples and that the Domestic Violence and Matrimonial Proceedings Act 1976 s.1 gave jurisdiction to all county courts to grant an injunction and exclude a violent person from the home, whether married or not, irrespective of any property right vested in the person excluded. However, this exclusion should only be temporary until other arrangements have been made. Such an injunction can be permanent, but will in most cases be temporary.
Nearing v. Weaver Oregon Supreme Court (1983)
Here, plaintiffs Henrietta Nearing and her two children appealed the order of the Court of Appeals, which affirmed a grant of summary judgment to respondents city and police officers for failure to follow the mandatory arrest provisions of Or. Rev. Stat. § 133.310(3) for violation of a domestic protective order. Plaintiff Henrietta Nearing was separated from her husband and received a restraining order against him after he was arrested and charged with assault for entering her home without permission and striking her. Plaintiff reported her husband’s subsequent multiple returns to her home, damaging the premises and the property of her friend, threats of physical violence to her friend, and attempts to remove the children. Despite these complaints, defendant officers took no action to restrain plaintiff’s husband. Two days after plaintiff’s last report, her husband telephoned her and threatened to kill her friend and subsequently assaulted the friend in front of plaintiff’s home. The Supreme Court of Oregon reversed the summary judgment and held that plaintiff’s complaint alleged facts that, if proved, obliged the St. Helen’s police officers to respond to plaintiff’s call for protection against the exact kind of harassment proscribed by the statute. The duty was not an ordinary common law duty of due care, but a specific duty imposed by statute for the benefit of individuals previously identified by a judicial order. The court ruled that plaintiffs could recover for either psychic and emotional injuries, or physical injuries that were caused by the police officers’ failure to comply with a mandatory arrest statute.
State ex rel. Juvenile Dep't. v. Gohranson (In re Gohranson) Oregon Court of Appeals (1996)
Here, appellants, the State and the children, sought review of a judgment from the circuit court, which found in favor of respondents, a mother and father, in the State’s action to terminate their parental rights. The Court of Appeals of Oregon reversed and remanded with instructions to enter judgment terminating the parental rights of father and mother. With reference to ORS 419B.504, the Court of Appeals of Oregon terminated the father’s parental rights with regard to his own daughter, because he was convicted for sexually abusing the mother’s daughter from previous marriage and had sexually abused his own daughter. In addition, integration of the children into his home was unlikely in the foreseeable future. In keeping with ORS 419B.504, the Court of Appeals of Oregon terminated the mother’s parental rights, because the children were subjected to severe sexual abuse while in her care, but she had neither recognized the signs of sexual abuse nor protected them. Furthermore, the evidence also demonstrated that mother would not be able to adjust her behavior to protect the children in the future, most importantly because she continuously denied the possibility that father subjected the children to sexual abuse.
Gourley v. Gourley Washington Supreme Court (2006)
One of the parties’ children accused petitioner of sexual assault, including improper touching of her breasts and vaginal area on multiple occasions. During an interview with Child Protective Services (CPS), the child denied any improper touching, but subsequently stated that petitioner had cautioned her against disclosing any information about the improper touching. Additionally, in a written declaration, petitioner had admitted to rubbing aloe vera on the naked body of the child. As a result, respondent sought and received a domestic violence protection order against petitioner under Wash. Rev. Code 26.50 , prohibiting contact between petitioner and respondent and their three children. Petitioner appealed, arguing that, in granting the petition for protection order, the commissioner improperly considered hearsay evidence and violated his due process rights when he refused to allow cross-examination of the child, who made the accusation. The Supreme Court of Washington held that the rules of evidence need not be applied in ex parte protection order proceedings and, therefore, the commissioner did not err when he considered hearsay evidence in issuing the protection order. Furthermore, denial to allow cross-examination of the child did not violate petitioner’s due process rights, because nothing in the statutory scheme explicitly requires allowing respondent in a domestic violence protection order proceeding to cross-examine a minor who accused him of sexual abuse.
State v. Schultz Washington Supreme Court (2002)
Defendant was charged with assault stemming from a domestic violence incident. At his arraignment, the court entered a no-contact order, forbidding defendant to have any contact with his victim for a period of one year. Defendant was found guilty of the assault. He resumed cohabitation with the victim, although both were aware that the no-contact order remained in effect. Two months later, the police department received a hang-up 911 call from the apartment shared by defendant and the victim. The state charged defendant with violation of domestic violence no-contact order (pre-conviction). Defendant contended that the no-contact order had expired upon Schultz's conviction. The Supreme Court of Washington held that a no-contact order entered at arraignment under RCW 10.99.040(3) does not expire upon a finding of guilt in a domestic violence prosecution but remains in effect until the defendant's sentencing. As a sentencing condition, pursuant to RCW 10.99.050(1), the trial court may issue a new no-contact order, or it may extend the existing order by clearly indicating on the judgment and sentence that the order is to remain in effect. Here, the no-contact order entered under RCW 10.99.040(3) at defendant’s arraignment was permissibly extended as a sentencing condition and thus remained in effect until its stated expiration date.
Matter of J.W.D. New Jersey Supreme Court (1997)
Defendant appealed the trial court’s determination that he could not have the return of his firearms after a second domestic violence complaint. Upon appeal the appellate division reversed. The State appealed, and the Supreme Court of New Jersey found that the defendant was not entitled to the return of his firearms if the court were to find he posed a threat to public health, safety or welfare under the Prevention of Domestic Violence Act. Before the plaintiff and the defendant divorced, the plaintiff filed two domestic violence complaints. During the first complaint, the police confiscated the defendant’s guns and firearms purchaser identification card. The defendant ultimately obtained his firearms back. Subsequently, as the parties’ divorce action was pending, the second complaint arose when the plaintiff went to pick up their son from the defendant’s house. The police once again confiscated the defendant’s weapons. In addition to these confrontations, the defendant had affixed post-it notes to the windows stating, “danger, enter at your own risk,” and set up devices that appeared like booby traps. Further, during the parties’ marriage, the defendant would play music, strap on a holster and walk around the house with his gun. The plaintiff never knew if the gun was loaded on these occasions. The court found this established enough evidence to warrant denial of returning the firearms, as the defendant posed a threat to public safety and health under the Prevention to Domestic Violence Act.
Sam v. State Wyoming Supreme Court (2008)
State v. Gonzales New Mexico Court of Appeals (1997)
On July 15, 1994, a domestic violence protective order involving Gonzales and Wife was entered. The order contained a “stay away” provision, one that prohibited Gonzales from visiting Wife’s workplace. Five days later, on July 15, 1994, Gonzales was arrested for being at Wife’s workplace. The trial court found that Gonzales had violated the protective order in contempt and sentenced him to jail. Five days later, on July 25, 1994, Gonzales was again charged, this time for criminal false imprisonment, battery, stalking, and harassment. The July 25 charges were based on the same encounter as the July 20 conviction. Gonzales filed a motion to dismiss on the charges of stalking and harassment. He argued that the July 20 conviction for contempt should preclude a successive prosecution on stalking and harassment. Following this “double jeopardy” theory, the trial court dismissed the sexual harassment and stalking claims. The state appealed.
Boykin v. State Wyoming Supreme Court (2005)
Defendant appealed a judgment of the District Court, convicting him of one count of assault and battery on a household member. Defendant argued, among other things, that the trial court abused its discretion in allowing the testimony of a convenience store clerk concerning statements the victim made to the clerk under the excited utterance exception to the hearsay rule. Defendant had gone to a bar with his friends and returned around 2:00 a.m. to the residence he shared with his girlfriend and their children, and entered into an argument with his girlfriend, at which time she slapped him and he hit her in the nose. The girlfriend took the children and left the house, driving to a nearby convenience store, where the convenience clerk called the police. At trial, the girlfriend testified that she did not remember whether or not she talked to the clerk about what happened. The clerk, however, testified that she told him that defendant hit her. The Supreme Court of Wyoming affirmed the judgment of the District Court, noting that the excited utterance exception applied to the circumstances and that the girlfriend’s statement to the sales clerk was spontaneous and not the result of reflection, deliberation, or fabrication. In affirming, the court specified five factors the trial court should consider in determining whether the excited utterance exception applies: 1) the nature of the startling event; 2) the declarant’s physical manifestation of excitement; 3) the declarant’s age; 4) the lapse of time between the event and the hearsay statement: and 5) whether the statement was made in response to an inquiry.
State v. McGee New Mexico Court of Appeals (2004)
R.S. v. Dept. of Family Servs. (In re KLS) Wyoming Supreme Court (2004)
Appellant-father appealed the judgment of the District Court that terminated his parental rights. The Supreme Court of Wyoming affirmed, as the record contained clear and convincing evidence of abuse and neglect over the child’s lifetime, including evidence that the father caused the child to witness repeated episodes of domestic violence. Termination of parental rights pursuant to Wyo. Stat. Ann. § 14-2-309(a)(iii) requires the establishment of three elements: (1) abusive treatment or neglect by the parent; (2) unsuccessful efforts to rehabilitate the family; and (3) the child’s health and safety would be seriously jeopardized by remaining with or returning to the parent. Abuse and neglect are defined in Wyo. Stat. Ann. § 14-3-202(a)(ii): (ii) “Abuse” means inflicting or causing physical or mental injury, harm or imminent danger to the physical or mental health or welfare of a child other than by accidental means, including abandonment, unless the abandonment is a relinquishment substantially in accordance with W.S. 14-11-101 through 14-11-109, excessive or unreasonable corporal punishment, malnutrition or substantial risk thereof by reason of intentional or unintentional neglect, and the commission or allowing the commission of a sexual offense against a child as defined by law. The Court concluded that the father had subjected the child to abusive treatment and neglect by causing the child to repeatedly witness domestic violence between him and the child’s mother.
Yankoskie v. Lenker Pennsylvania Superior Court (1987)
Plaintiff sought a protective order from her ex-boyfriend. The two had lived together but the plaintiff subsequently moved out to her own apartment with their three children. Plaintiff filed a petition for a protection order after her ex-boyfriend entered her apartment with her permission, became so drunk that he attempted to assault her, broke their infant son’s leg, and shoved his other son’s face against a door. The Court of Common Pleas denied plaintiff’s petition. On appeal, the Supreme Court of Pennsylvania found that the plaintiff adequately demonstrated that her ex-boyfriend attempted to physically harm her and did cause her sons bodily injury. Further, even though the parties did not live together, the defendant had legal access to the plaintiff’s apartment; permissive entry is a form of legal access. The court thus found that it could issue a protective order in this situation and it reversed the court’s ruling.
Bevan v. Fix Wyoming Supreme Court (2002)
Appellants, two minor children, appealed the District Court’s grant of summary judgment for intentional infliction of emotional distress. The Supreme Court of Wyoming reversed, holding that genuine issues of material fact precluded the grant of summary judgment on the claims for intentional infliction of emotional distress. The claim for intentional infliction of emotional distress stemmed from a domestic violence incident, which involved appellee beating, kicking, punching, dragging by the hair and choking the mother of two children while screaming that he wanted to kill her. Although the Supreme Court of Wyoming agreed with the District Court that not every domestic violence altercation constitutes an extreme and outrageous conduct or results in sufficiently severe emotional impact to support a third party claim for intentional infliction of emotional distress, it also noted that appellee’s alleged conduct in this case amounted to conduct beyond mere insults, indignities and petty oppressions. If proved, it could be construed as outrageous, atrocious and utterly intolerable in a civilized community. Therefore, the grant of summary judgment was improper, as the jury should have been able to determine whether appellee’s conduct was sufficiently extreme and outrageous to result in liability.
State v. Bruneau Rhode Island Supreme Court (2003)
Defendant appealed a conviction of violating a no-contact order, resulting in imprisonment for thirty months. The defendant’s ex-wife had obtained a protective order, which the defendant violated. Specifically, the defendant called his ex-wife to arrange to visit their daughter. Suspecting that he was drunk, she asked that he call the next day, but the defendant arrived ten to fifteen minutes later and was let into the house from the ex-wife’s roommate’s daughter. The ex-wife did not see the defendant in the house but heard his voice, and called the police. The defendant contested his conviction on the basis that his violation took place after the temporary restraining order expired. However, because a permanent order was in place at that time, directed towards the same conduct as the temporary order, this argument could not stand. The defendant then argued that he did not have actual notice of the order because it was mailed to him and was not personally served. The court rejected this argument also and found that service by mail was proper. The court affirmed the conviction.
Williams v. Williams Missouri Supreme Court (1982)
Here, Mrs. Williams sought an order of protection against her husband, the respondent, who beat her numerous times. On one occasion, the respondent caused her serious bodily harm and Mrs. Williams was hospitalized for twelve days. Upon her petition for an order of protection from the court, the court held that although Mrs. Williams met all the requirements necessary to obtain relief under the Adult Abuse Act (§ 455.035 and § 455.045), she could not obtain relief because the Adult Abuse Act was unconstitutional because 1) the Act also afforded protection to children, which was not immediately apparent from the title of the act and therefore violated article II, section 23 of the Missouri Constitution; 2) an ex parte order violated defendants’ due process rights because it did not provide defendants with notice of process; and 3) the Act was too vague and therefore unconstitutional. The Missouri Supreme Court reversed the trial court’s decision and held that the Adult Abuse Act was constitutional. The court held that the “ex parte order provisions comply with due process requirements because they are reasonable means to achieve the state’s legitimate goal of preventing domestic violence, and afford adequate procedural safeguards, prior to and after any deprivation occurs.” Also, the Act is not vague because it “provides sufficient direction and guidance for the judges who must apply it. The protection orders are to issue only when an ‘immediate and present danger of abuse to the petitioner’ is found.”
State v. Doyle Nebraska Court of Appeals (2010)
Doyle was subject to a domestic abuse protection order for Linda Doyle, his wife. The “no contact” provision of the order prohibited Doyle from “telephoning, contacting, or otherwise communicating with [Linda]” for a period of 1 year. After Doyle was escorted to a hospital by law enforcement on February 14, 2008, Doyle evaded the monitoring of police officers and directed a nurse to contact his wife. The call was placed and Linda was indeed reached. Linda hung up after a brief conversation with the nurse.
In re Sawyer New Hampshire Supreme Court (2010)
Here, the parties were married for two years when the plaintiff filed a domestic violence petition against the defendant. She stated that defendant punched her in the stomach and leg, choked her, threw her to the floor, fisted her in the face, and threated to drown her in the bathtub. The plaintiff did not specify the dates of the abuse. The trial court issued an ex parte domestic violence temporary order of protection. The defendant argued that the plaintiff’s petition was legally insufficient as it did not specify when the abuse occurred. The plaintiff testified to the alleged abuse without objection. Subsequent to this testimony, the court issued a final protective order. The court found that N.H. rev. Stat. § 173:B did not require the plaintiff to set forth the specific dates on which she suffered abuse. The court found that the plaintiff’s allegations were legally sufficient to withstand a motion to dismiss because they allowed a reasonable inference that the plaintiff was in immediate and present danger of abuse. Further, the fact that the plaintiff did not specify the dates of the abuse did not violate the defendant’s due process rights since he could not show he was actually prejudiced by this omission.
Williams v. State Alabama Court of Criminal Appeals (1986)
A jury found Mr. Williams guilty of burglary and sodomy in the first degree. On appeal, Mr. Williams argued, among other things, that Alabama’s forcible sodomy statute was unconstitutional because it excluded a married person from liability. In other words, under the statute, a married person could not be convicted of forcibly sodomizing his or her spouse in Alabama. The appellate court held that the statute, on its face, discriminates between married and unmarried persons, and thus looked to see whether there was, “as a minimum, some ground of difference that rationally explains the different treatment accorded married and unmarried persons under the statute.” The court considered several traditional rationales for the marital exception. First, the court considered the implied consent theory – i.e., when a women makes her marriage vows, she impliedly consents to sexual intercourse with her husband during the marriage. The court rejected this rationale, finding that a “married person has the same right to control his or her body as does an unmarried person.” Because “any implied consent notion would give one spouse control over the other spouse’s bodily integrity,” it was not a rationale basis for the marital exemption. Second, the court rejected the proposed justification for the marital exemption that it protected against governmental invasion into marital privacy. The court found that marital privacy was not designed as a shield to protect against violent sexual assaults. Third, the court found untenable the argument that elimination of the marital exemption for forcible sodomy would disrupt marriages because it would discourage reconciliation: “When a marriage relationship has deteriorated to the point of forcible and unwanted sexual contact, reconciliation seems highly unlikely. Fourth, the court found problems with proof did not provide a rationale basis for the marital exemption because the evidentiary problems concerning one spouse’s lack of consent to an act of sodomy would be no more difficult than proving lack of consent by a victim involved in a non-marital relationship. Fifth, and finally, the court rejected the argument that the assault statutes provided alternative remedies available to a victim of forcible sodomy by a spouse, finding the vast differences in punishment disproved the alternative remedy theory. The court concluded that there can be no justification for forcible sodomy upon one’s spouse, and a rule that protected unmarried persons from forcible sodomy but not married persons could not withstand constitutional scrutiny. Therefore, the court severed and removed from the statute the marital exemption for the offense of forcible sodomy.
Hemenway v. Hemenway New Hampshire Supreme Court (2010)
Here, the plaintiff and the defendant were married and had four children. They all lived in Florida until the plaintiff left with their children and moved to New Hampshire. The parties subsequently divorced. Upon her arrival in New Hampshire, the plaintiff applied for a temporary restraining order against the defendant in Massachusetts, because he criminally threatened her and their children and he threatened her at her parents’ house in Massachusetts. Family court issued a protective order that prohibited the defendant from threatening or abusing his wife or children, contacting the plaintiff absent special authorization by court, coming within a distance of her home or work, or taking or damaging the plaintiff’s property. The family court also ordered the defendant to hand over his firearms. The husband appealed and argued that the court had no personal jurisdiction over him as he was a nonresident and the alleged abuse never occurred in New Hampshire. The court found that the family court could issue a protective order against the defendant as the purpose of New Hampshire’s domestic violence statute was to protect victims within that state, but that it could not require any affirmative act on the part of the defendant. Thus, the order could stand as it directed the defendant to refrain from seeing or contacting the plaintiff, but it could not direct him to relinquish his firearms.
Hurd v. Hurd Arizona Court of Appeals (2009)
The appellate court affirmed a family court’s grant of sole custody to the mother of three minor children. According to Ariz. Rev. Stat. Ann. § 25-403.03, a significant history of domestic violence is sufficient to render joint custody inappropriate. In addition, Ariz. Rev. Stat. Ann. § 25-403.03.D further states, “there is a rebuttable presumption that an award of custody to the parent who committed the act of domestic violence is contrary to the child’s best interests.”
MacPherson v. Weiner New Hampshire Supreme Court (2008)
Here, the plaintiff was issued a final protective order against the defendant. Subsequent to the issuance of this order, the plaintiff had filed a statement with the police that the defendant went to her work, called her work, and called her parents. Further, a witness observed the defendant at the plaintiff’s home, and he was seen to drive by her home on seven occasions. The defendant was convicted of violating the protective order and complied with it thereafter. Subsequently, the plaintiff requested a five-year extension to the order and the defendant requested a hearing. The trial court granted the extension and the defendant appealed. The defendant argued that the plaintiff did not have good cause to support the extension. The court considered good cause under N.H. Rev. Stat. § 633:3-a which provides that in regard to stalking, a protective order may be extended on a showing of good cause to provide for the safety and well-being of the plaintiff. The court noted that to determine good cause, it should consider the circumstances of the original stalking, the current conditions, and consider any reasonable fear by the plaintiff. The court found that the plaintiff showed good cause for an extension of the protective order; the defendant drove by the plaintiff’s house multiple times in violation of the initial protective order only fifteen months earlier and the plaintiff’s fear of the defendant was reasonable.
Skains v. Skains Arizona Court of Appeals (2009)
The family court abused its discretion when awarding joint custody without considering evidence of domestic violence, and when awarding Father parenting time when there was a valid order protecting the child from Father.
Cesare v. Cesare New Jersey Supreme Court (1998)
Krystyna W. v. Janusz W. Connecticut Court of Appeals (2011)
Court of Appeal affirmed the trial court’s grant of a domestic violence restraining order requested by plaintiff against her husband. In this case, the defendant had threatened to seek revenge on his children because they had hospitalized him. Defendant walked around the house with knives, verbally abused the children, and prevented the family from sleeping by making loud noises. While intoxicated, defendant had also previously asked his son to kill him with a hammer and knife. The court noted that Connecticut’s Gen. Stat. § 46b-15 “clearly requires a continuous threat of present physical pain or physical injury before a court can grant a domestic violence restraining order.” The court found that the above facts presented enough of a continuous threat of present physical pain or injury so that the trial court’s ruling was not an abuse of discretion, and affirmed the grant of a restraining order.
Joni S. v. Ricky S. Connecticut Court of Appeals (2010)
Defendant appealed the trial court’s award of a restraining order. The trial court had granted the order because the plaintiff made a showing that the defendant, her ex-husband, was obsessed with her to a point where it clouded his judgment and she was afraid he would harm her. Plaintiff made this showing through evidence that after the parties were divorced, plaintiff had seen the defendant drive by her house repeatedly, she had received flowers from the defendant one day at work and later that night under the windshield wiper of her car, she was concerned that the defendant was in her driveway while they were separated, and that she was afraid because she thought the defendant went to anger management therapy and lived nearby. The parties’ daughter testified that she also believed the defendant was obsessed with the plaintiff. Under Ct. Gen. S. § 46b-15, anyone who has been subject to a continuous threat of present physical pain or physical injury by another household member or is in a dating relationship and been subjected to these threats may apply to the superior court for relief. The appellate court found the plaintiff showed sufficient evidence of a continuous threat of present physical pain or physical injury, as the defendant’s obsession with her could lead him to harm her, and affirmed the trial court’s grant of a restraining order.
State v. Swanson Connecticut Superior Court (2000)
Defendant argued that it was unconstitutional for a court to issue a protective order that resulted in barring a person from his home as a result of an arrest for domestic violence. Under Gen. Stat. § 46b-38c, a court is authorized to issue a protective order to include “provisions necessary to protect the victim from threats, harassment, injury or intimidation by the defendant including but not limited to, an order enjoining the defendant from (1) imposing any restraint upon the person or liberty of the victim; (2) threatening, harassing, assaulting, molesting or sexually assaulting the victim; or (3) entering the family dwelling or the dwelling of the victim.” Here, the court had issued a protective order for the defendant’s wife. The defendant argued that the statute violated his substantive due process rights because he was precluded access to his home and property and became subject to enhanced criminal penalties and liabilities. The court found that even though the defendant had a due process interest, the statute was intended to protect victims and not, rather, punish defendants. The court noted that the state had a legitimate interest in providing this protection. Thus, the court found the statute to be constitutional and a court may bar a defendant from his home in a domestic violence situation.
Dyer v. Dyer Maine Supreme Court (2010)
Here, the plaintiff moved to extend a protective order against the defendant, her ex-husband. The trial court granted the extension and the defendant appealed. In this case, while the parties were married, the defendant assaulted the plaintiff in their garage and attempted to suffocate her while she was knocked to the ground and she almost lost consciousness. The defendant only stopped when the parties’ daughter entered the garage and the plaintiff told her to call 911. The defendant was arrested and served six months in jail. The plaintiff also had obtained a protective order that prohibited the defendant from having direct or indirect contact with the plaintiff and their daughter for two years. The defendant violated this order by sending his daughter a Christmas card and by entering the plaintiff’s home. As the order was going to expire, the plaintiff moved to extend it. The court extended the order because the assault against her had been “extraordinarily brutal and unprovoked.” The court found that the plaintiff had a well-founded fear of vehicles that were similar to that of the defendant, especially because the defendant got a job in the town where the plaintiff worked. The defendant appealed the trial court’s finding. The court affirmed the trial court’s extension, finding there were no factual findings of clear error made by the trial court. Thus, a protective order does not have to have a time limit where a party’s fear is justified.
Campbell v. Martin Maine Supreme Court (2002)
Here, the plaintiff had obtained a protective order against the defendant in Kentucky because she feared that the defendant would abuse her and the parties’ daughter. Subsequently, the defendant threatened to kill the plaintiff, and the plaintiff fled to Maine, where she filed for a protective order. The district court granted a temporary protective order. Subsequently, the plaintiff filed for custody of the parties’ daughter. The district court found that it could not grant the plaintiff custody as Maine was not the daughter’s home state. On appeal, the court noted that under 19-A M.R.S.A. §§ 1731-1783, where Maine is not the child’s home state, a Maine court does not have jurisdiction unless the child’s home state declines to exercise jurisdiction. However, where a parent and child flee their home state due threats of abuse, Maine may exercise jurisdiction over the child’s interests under § 1748. The court affirmed the district court’s denial of custody though. The court found that the court properly exercised jurisdiction to issue a protective order which would not expire until a custody hearing in Kentucky. Because the child’s interests would be protected until the matter was adjudicated, there was no need to act further to protect the child by issuing a more permanent order.
Putnam v. Kennedy Supreme Court of Connecticut (2006)
While Gen. Stat. § 46b-15 allows a plaintiff to obtain a domestic restraining order, the Connecticut Supreme Court held in Putnam that such an order is an appealable final judgment. In other words, this protection is somewhat limited as a defendant is able to appeal the issuance of a restraining order. Id. at 167. Here, the defendant appealed the trial court’s grant of a domestic restraining order and the appellate court found the appeal is moot, as such an order is not appealable as it is not a final judgment. Id. The Connecticut Supreme Court disagreed and found that it is a final judgment and an appeal is permissible due to the “potentially irreparable effects of § 46b-15 restraining orders on relationships within the family unit.” Id.
NJA 2004 s. 97 Supreme Court of Sweden (2003)
"A person who commits criminal acts as defined in Chapters 3, 4 or 6 against another person having, or have had, a close relationship to the perpetrator shall, if the acts form a part of an element in a repeated violation of that person's integrity and suited to severely damage that person's self-confidence, be sentenced for gross violation of integrity to imprisonment for at least six months and at most six years. (…)" Chapter 4, Section 4 a, paragraph 2 of the Swedish Penal Code.] The Supreme Court ruled that a couple had a close relationship, in the sense required by law, even though they both had access to their own separate accommodations. The court found that the couple was to be considered to be in an established relationship as they, for a longer period (a year and a half), spent time with each other in a way comparable to what may be the case in a cohabiting relationship or between spouses. It was further found that the perpetrator had battered the woman he had a relationship with at six occasions and that he had also been guilty of assault. The court ruled that the actions had violated the woman's integrity and suited to severely damage the woman's self-confidence. The perpetrator was sentenced for gross violation of integrity to eight months imprisonment.
NJA 2003 s. 144 Supreme Court of Sweden (2003)
"A person who commits criminal acts as defined in Chapters 3, 4 or 6 against another person having, or have had, a close relationship to the perpetrator shall, if the acts form a part of an element in a repeated violation of that person's integrity and suited to severely damage that person's self-confidence, be sentenced for gross violation of integrity (…)." Chapter 4, Section 4 a, paragraph 2 of the Swedish Penal Code. The Supreme Court ruled that even though several assaults separately do not qualify as criminal acts as defined in Chapter 3, 4, or 6 of the Swedish Penal Code they may, if assessed together, be seen as seriously damaging to a person's self-confidence and the perpetrator may be sentenced for gross violation of a woman's integrity. In this case, a man had thrown a glass of juice in the face of the woman he lived with while she held their youngest child in her lap. He also had assaulted her several times by, inter alia, kicking her legs and buttocks, taking firm grips of her neck, punching her neck and shoulder, stepping on her feet, knocking her over on the floor, taking her in a stranglehold, and threatening to kill her. Although only one of the assaults could be defined as a criminal act in accordance with Chapters 3, 4 or 6 of the Swedish Penal Code, the Supreme Court stated that it is necessary to take into account a person's entire situation when assessing gross violation of a woman's integrity. The Supreme Court further ruled that it is not necessary to establish that a person's self-confidence is actually injured but only that the acts are such as would typically lead to serious injury to a person's self-confidence.
Chalmers v. Johns Court of Appeal (Civil Division) (1999)
Mr. Johns, the appellant, and Ms. Chalmers, the respondent, began their relationship in 1972; it has become increasingly troubled, in part from the respondent's alcoholism, leading to Mr. Johns being charged with assault, of which he was later acquitted. Ms. Chalmers obtained an occupation order requiring Mr. Johns to vacate their family home, which he appeals. The Court held that the circumstances of this case were a mild form of domestic violence and an occupation order was an unjustifiably drastic measure to take and that occupation orders are only justified in exceptional circumstances.
Nandi v. Bobo High Court of Kenya at Nairobi (Nairobi Law Courts) (2006)
The petitioner-wife sought the dissolution of her marriage on the grounds of cruelty and adultery because the respondent assaulted her, locked her out of their matrimonial home, and forced her to have sex with him while he was drunk. The Court found that the petitioner's testimony was believable and established cruelty that endangered her life and health. The Court therefore dissolved the marriage. (Kenya domestic law does not explicitly recognize marital rape.)
P. Babu Venkatesh v. Rani High Court of India (2008)
After a marital dispute arose, the husband transferred ownership of the marital home to his mother in order to evade the 2005 Protection of Women from Domestic Violence Act which does not permit women to be forcibly dispossessed of their homes. The Court held that the subterfuge was insufficient to evade the law and ordered that the wife be allowed to live in the home until the dispute could be resolved. Here, the Supreme Court held that the shared household only includes homes which are owned or rented by the couple.
Amit Sundra v. Sheetal Khanna High Court of India (2007)
In a case of domestic violence, under the 2005 Protection of Women from Domestic Violence Act, the Delhi High Court upheld the Magistrate Court's injunctive order to allow the wife and some of her family to remain in the marital home until the case was fully prosecuted.
Aruna Parmod Shah v. Union of India High Court of India (2008)
A man charged with domestic violence against his female live-in domestic partner challenged the law's use by an unmarried domestic partner. The court held that domestic violence by a man against a woman in any marriage-like relationship, or even relationships outside marriage, is subject to the law. This decision is notable given that many marriages in India are unofficial or not legally valid.
International Case Law
González Carreño v. Spain CEDAW Committee (2014)
In 2003, a father murdered his seven-year-old daughter Andrea during a court-approved parental visitation. Ángela González, Andrea’s mother, had previously reported instances of physical abuse to the police on numerous occasions and sought court-ordered restraining orders against him to protect herself and her daughter. The father had refused to accept supervised visitations with his daughter. After killing his daughter, the father committed suicide. The mother brought suit in national court against Spanish authorities. The court ruled against her, deciding in April 2011 that the visit regime was sound and denied the case any constitutional relevance. As a result, the mother brought this complaint to the CEDAW Committee. The Committee found for the mother, stating that in deciding the parental visitation scheme the Spanish authorities should have taken into account the existing context of domestic violence in the family. Instead, the Spanish authorities had made a routine decision that this type of visitation scheme was appropriate without taking the specific facts of this case into consideration. The Committee held that the Spanish authorities thereby failed to take the best interest of the child into account. The Committee has repeatedly found that a State can be held responsible for acts of individuals if it fails to exercise necessary diligence in order to prevent violations of the CEDAW Convention. Specifically, Spain had violated articles 2 a), d), e) and f), 5 a) and 16 paragraph 1 of CEDAW. Additionally, CEDAW ruled that Spain must provide training to judges and other professionals to avoid similar failures in the future. Spain has since stated that it will introduce new mechanisms to protect children in gender violence cases, such as requiring judges to act with precaution in their decision-making.
En 2003, un padre asesinó a su hija Andrea, de siete años, durante una visita de padres aprobada por el tribunal. Ángela González, la madre de Andrea, había denunciado previamente casos de abuso físico a la policía en numerosas ocasiones y había solicitado órdenes de restricción ordenadas por el tribunal para protegerse a ella y a su hija. El padre se había negado a aceptar visitas supervisadas con su hija. Después de matar a su hija, el padre se suicidó. La madre presentó una demanda en el juzgado nacional contra las autoridades españolas. El tribunal falló en contra de ella, decidiendo en abril de 2011 que el régimen de visitas era sólido y negó al caso cualquier relevancia constitucional. Como resultado, la madre presentó esta queja al Comité de la CEDAW. El Comité determinó que la madre indicaba que, al decidir el plan de visitas de los padres, las autoridades españolas deberían haber tenido en cuenta el contexto existente de violencia doméstica en la familia. En cambio, las autoridades españolas habían tomado una decisión de rutina de que este tipo de esquema de visitas era apropiado sin tener en cuenta los hechos específicos de este caso. El Comité sostuvo que las autoridades españolas no habían tenido en cuenta el interés superior del niño. El Comité ha encontrado repetidamente que un Estado puede ser responsabilizado por actos de individuos si no ejerce la diligencia necesaria para prevenir violaciones de la Convención de la CEDAW. Específicamente, España había violado los artículos 2 a), d), e) yf), 5 a) y 16 párrafo 1 de la CEDAW. Además, la CEDAW dictaminó que España debe brindar capacitación a jueces y otros profesionales para evitar fallas similares en el futuro. Desde entonces, España ha declarado que introducirá nuevos mecanismos para proteger a los niños en casos de violencia de género, como exigir que los jueces actúen con precaución en su toma de decisiones.
Hajduová v. Slovakia European Court of Human Rights (2010)
Mrs. Hajduová was verbally and physically assaulted by her (now former) husband, who repeatedly threatened to kill her and her children. Mrs. Hajduová’s husband was convicted, and the district court ordered psychiatric treatment but no incarceration. The psychiatric hospital did not carry out the treatment, and Ms. Hajduová’s husband was released as the district court failed to order the hospital to retain him for psychiatric treatment. After his release, he verbally threatened Mrs. Hajduová and her lawyer. As a result, they filed criminal complaints against him, and the district court, in accordance to its earlier decision, arranged for psychiatric treatment and transported Mrs. Hajduová’s husband to a different hospital. Mrs. Hajduová filed a complaint with the Constitutional Court; she cited the violation of her right to liberty and security the right to a fair trial, the right to integrity and privacy and the right to the protection of private and personal life and claimed that the district court failed to ensure her husband’s placement in a psychiatric hospital immediately after his conviction. The Constitutional Court rejected her complaint on the grounds that she should have pursued an action for the protection of her personal integrity before ordinary courts. Mrs. Hajduová then filed a claim with the European Court of Human Rights (the “European Court”) alleging the failure of the Slovak Republic to fulfill its positive obligations to protect her from her husband, in violation of the right to private and family life (Article 8 of the Convention). Under Article 8, the State has positive obligations to implement effective measures to ensure respect for private and family life, and the duty to protect the physical and moral integrity of an individual from attack by other persons. The European Court further held that Mrs. Hajduová’s husband’s history of physical abuse and menacing behavior was sufficient to establish a well-founded belief that his threats would be carried out. It was the domestic authorities’ failure to ensure that Mrs. Hajduová’s husband was duly detained for psychiatric treatment which enabled him to continue his threats against her and her lawyer. The lack of sufficient measures taken by the domestic authorities, in particular the district court’s failure to comply with its statutory duties to ensure psychiatric treatment, amounted to a breach of the State’s positive obligation under Article 8 of the Convention to secure respect for the Mrs. Hajduová’s private life. The European Court awarded the claimant EUR 4,000 in damages.
Kontrová v. Slovakia European Court of Human Rights (2007)
Mrs. Kontrová, (the claimant) a married women with two children, filed a criminal complaint against her husband, accusing him of assaulting and beating her with an electric cord. In her complaint, she mentioned the long history of physical and psychological abuse by her husband and submitted a medical report indicating that her latest injuries would prevent her from working for at least seven days. This statement was later modified upon the advice of a police officer, so that it could have been treated as a minor offence and the police decided to take no further action. One month later, the Police Department received two night emergency calls reporting that Mrs. Kontrová’s husband had a shotgun and was threatening to kill himself and the children. Despite the fact that the following morning Mrs. Kontrová went to the police station and inquired about her criminal complaint from the previous month as well as the incident of the previous night, the police took no further action and no new criminal complaint was filed. Four days later, Mrs. Kontrová’s husband shot and killed their two children and himself. Criminal proceedings initiated against the police officers involved in the case on the grounds of dereliction of duty produced no tangible results, and Mrs. Kontrová’s complaints lodged in the Constitutional Court were dismissed twice on the grounds that they were inadmissible. Mrs. Kontrová filed a claim with the European Court of Human Rights alleging a breach of the protection of her rights to life, privacy, a fair trial and right for an effective remedy. The local police department knew all about Mrs. Kontrová and her family, which triggered various specific obligations, such as registering the complaint, launching a criminal investigation and commencing criminal proceedings against Mrs. Kontrová’s husband, which the police failed to do. The direct consequence of this was the death of Mrs. Kontrová’s children and husband. The European Court further held that the Slovak Republic failed to fulfill its obligation to achieve an ‘effective’ remedy and Mrs. Kontrová’s compensation. The only action available to Mrs. Kontrová related to the protection of her personal integrity and this provided her with no such remedy. This amounted to a breach of right to an effective remedy , in connection with a breach right to life. The European Court held that an examination of the other Articles was not necessary and awarded her EUR 25,000 in damages.
Opuz v. Turkey European Court of Human Rights (2009)
State failure to protect victims from domestic violence. Applicant brought this case against Turkey, alleging failure to protect her and her mother from domestic violence, violence which resulted in her mother's death and her own mistreatment. The victim and her mother were repeatedly abused and threatened by the victim's husband, abuse which was medically documented. The victim's husband and his father were at one point indicted for attempted murder against the two women, but both were acquitted. The abuse continued after the acquittal and eventually resulted in the husband's father killing the victim's mother. The husband's father was tried and convicted for intentional murder, but because he argued provocation and exhibited good behavior during the trial, his sentence was mitigated and he was released pending an appeal. Taking into consideration regional and international treaties as well as the domestic situation in Turkey, the ECHR held that Turkey violated Articles 2, 3, 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The ECHR ordered Turkey to pay the victim non-pecuniary damages and costs.
A.T. v. Hungary CEDAW Committee (2005)
A.T. is a Hungarian woman whose husband subjected her to continued domestic violence resulting in her hospitalization and ten medical certificates documenting separate incidents of abuse. Hungarian law did not provide a mechanism for A.T. to obtain a protection order against her husband, and accordingly, A.T. submitted a motion for injunctive relief for her exclusive right to the family apartment. The Budapest Regional Court denied the motion and held that A.T.’s husband had a right to return and use the apartment, stating that A.T.’s battery claims against him lacked substantiation and that the court could not infringe on her husband’s right to property. Her complaint to the Committee called for the introduction of effective and immediate protection for victims of domestic violence in Hungary, as well as effective interim measures to prevent irreparable damage to A.T.’s person in accordance with article 5, paragraph 1 of CEDAW’s Optional Protocol. The Committee held that Hungary’s domestic violence jurisprudence was deeply entrenched in gender stereotypes which constituted a violation of Hungary’s obligation under article 2 of CEDAW to promote gender equality through appropriate legislation. Hungary’s lack of specific legislation to combat domestic and sexual violence led the Committee to conclude that the State had violated its article 5 obligation to eliminate prejudices and customs grounded in female inferiority, and article 16 obligation to end discrimination against women in matters relating to marriage and the family. The Committee recommended that Hungary enact domestic and sexual violence legislation and allow victims to apply for protection and exclusion orders which forbid the abuser from entering or occupying the family home.
Reports
Staying Alive (2005)
Lawyer's Collective of India Report evaluating the implementation of the Domestic Violence Act of 2005 in India.
Violence is not Just a Family Affair: Women Face Abuse in Tajikistan (2009)
Amnesty International Report EUR 60/001/2009, November 24, 2009.
Report by Rashida Manjoo, Special Rapporteur on violence against women, its causes and consequences, on her mission to the United States of America (2011).
Articles
Human Rights at Home: Domestic Violence as a Human Rights Violation (2008)