Draft Legislation "On Social Protection From Violence in the Family"

Materials from the conference "Violence in the Family, Violence in Society"
Zvenigorod and Moscow, Russia
October 15-17, 1997

FINAL STATEMENT ON THE DRAFT LEGISLATION
"ON SOCIAL PROTECTION FROM VIOLENCE IN THE FAMILY"

I.INTRODUCTION

An important part of safety is safety within the family. The well-known proverb "my house is my castle" emphasizes that the house is a symbol of safety. However, many women, children and elderly people become prisoners of this castle.

About 20-30% of all murders are committed in the family. Annually 14,000 women are murdered by their husbands, while 2,000 children commit suicide. More than 50,000 children run away from home. Half of all minors have been violated by either their father or father-in-law. A total of 38% of all those convicted for acts of perversion were related to their victims.

During "Call-in Day"(staged in 12 cities throughout Russia) 58.1% of women who called for help were victims of various kinds of sexual crimes, of which 86.6% were rape victims. 15.4 % of these rapes were committed by the victims' husbands. Of the rest of the callers, 30.2 % reported cases of physical violence, of which 74.4 % had been committed by the victims' husbands. The physical violence, as a rule, was accompanied by insults and threats to the victims (97%). The domestic violence was often accompanied by sexual harassment (31%) and economic pressure (28%).

These figures are only the tip of the iceberg and there is no clear or objective picture of the domestic violence in Russia. Only the worst crimes are reported while beatings, insults and economic pressure remain behind the "castle walls".

The Penal Code of the Russian Federation envisages punishment for crimes against the individual. But experience shows that the punitive role of the law will never ensure safety within the family. Rather, a set of measures is necessary, including prevention, education, emergency relief to victims of violence and their family members, counseling and psychological therapy for victims of violence and other family members including children, as well as coordination of the efforts of all law enforcement agencies, the courts, crisis centers and non-governmental human rights organizations.

It is imperative to adopt the draft legislation "On the Basis of Social Protection from Violence in the Family," in which the rules and obligations of law enforcement and social services agencies would be stipulated. Such legislation would fill in, at least partially, the legislative vacuum concerning regulation of relations related to violence in the family. The initiator of this draft legislation was the Committee on Women, Family and Youth of the Federal Duma (parliament). Several years have gone by, but the draft legislation has not been adopted. This is because some members of parliament consider this issue to be of secondary importance, while others realize that it demands further corrections.

Our task is to prepare the arguments which will contribute to wide discussion on and adoption of this draft legislation, and to offer amendments to contribute to the quickest solution of this problem. The following expert analysis was carried out with the participation of social workers, professors and students of sociological schools and law faculties of various universities, and officials of social service and law enforcement agencies (from Moscow and Briansk) - altogether 100 people.

Different points of view have been reported. Some of the participants believe that adoption of this draft legislation will not solve the problem since its implementation is doubtful. However, the bulk of the participants believe that it is imperative to introduce amendments to the draft legislation in order to solve the problems of social protection from violence in the family.

Considering the adoption of this draft legislation as necessary, the participants of the expert analysis decided that it needs to be perfected and seriously corrected.

Comments and recommendations have been used for the preparation of this document.

II.COMMENTS AND REMARKS

1. General concept.

1.1 The balance between social service and law enforcement agencies.

The draft legislation is a logical continuation of the federal law on social services for the public. This law envisages a complex system comprised of federal and municipal social services, those provided by employers, as well as social service organizations and citizens involved social service businesses. Currently, the system of social services in the Russian Federation based on this law has not been completely developed and established: according to data from the Ministry of Labor and Social Development, there are currently only 7% of the needed number of social service organizations.

The draft legislation includes a number of measures which would extend the rights and obligations of social service providers for ensuring family safety. Meanwhile, the main rights of law enforcement agencies remain unchanged.

Therefore, the burden of dealing with violence in the family would be on the shoulders of social service agencies and organizations, which do not meet expectations due to the lack of qualified staff and technical and financial resources. It is undecided whether the prevention of violence in the family can be considered a threat and therefore rate the same level of assistance as that provided to the disabled, orphans, the unemployed, single and poor people.

Based on this draft legislation, it is impossible to envisage any practical assistance to a family suffering from violence.

Where do victims of violence go first? Always to the militia, however, according to the draft legislation, the law enforcement organizations would have to refer the victims to the social services system. It is unclear which of the organizations, mentioned in article 17 of the draft legislation, will provide aid, or even where or by whom it will be offered. If these organizations do not have offices in certain regions, who will be in charge of prevention of violence in the family?

Besides, the social service system alone cannot solve all the problems associated with violence. Meanwhile, the draft legislation doesn't envisage any mechanism of interaction between the social service system, law enforcement agencies and the courts.

We believe that the fundamental concept of this draft legislation cannot ensure safety in the family. The social service system is not very well developed in Russia yet; it suffers from a lack of staff and proper funding, and public opinion about social services as a method to solve crisis situations is not generally positive. It is necessary to find a balance between the work of law enforcement agencies, the courts and social services. Their rights and functions should be defined and the mechanism of their interaction should be stipulated to deal with concrete crisis situations that may arise.

1.2. Prevention of violence in the family and a concept to regulate the interaction of all subjects of social protection.

Social protection includes the prevention of violence in the family. These concepts must be defined clearly. For example, the word "prevent" means "remove in advance," i.e. to remove the threat, while the word "restrain" is equal to "cause to stop abruptly." However, the draft legislation says that both "prevention" and "restraint" can be discussed only when violence has already been committed.

For example, in section 2, article 11 "prevention of violence in the family" is described as: 2) investigating the living conditions of victims who suffered at the hands of a family member; 3) determining the character of the violence committed in the family; and 4) checking up on both the victim and perpetrator of violence in the family.

This means that to prevent a crime is defined as avoiding new (systematic rather than spontaneous) violence. The draft legislation stresses a "set of measures for the social protection of the family victimized by violence." Prevention itself (according to the draft legislation) is viewed as "immediate social relief rendered by the social service system at the family residence, in case of direct threat to life or health in an emergency" (article 5).

The draft legislation also contains the terminology "danger of violence in the family," encompassing the possibility of violent actions by one family member against another (article 5). The danger of family violence is the first stage of a crisis situation, and violence itself can follow. Prevention should include preventive, prophylactic actions which could guarantee social protection to all potential victims of violence, to prevent amoral activities escalating into violence. Such measures must be undertaken before violence is committed.

If these measures do not bring the expected result, it is necessary to use all preventive measures aimed at guaranteeing the rights and legitimate interests of the victim by all means possible, as stipulated in the law.

There are several kinds of preventive measures that can be used. For example, to stop repeated and systematic violent actions, prevention as described in the aforementioned legislation should include measures with the direct participation of both the social service and law enforcement agencies. The draft legislation should include a set of measures for prevention of violence in the family which, according to recommendations developed by the United Nations, stipulate in detail all the obligations and duties of the police and criminal justice officials.

2. Remarks and proposals.

2.1. Article 1 "Definitions and goals of social protection from violence in the family" should be halved into "definitions" and "goals." A separate article titled "Goals of social protection from the violence in the family" should be presented as follows:

"Social protection from violence in the family should contribute to the observance of international human rights standards, render social assistance in crisis situations, develop measures to ensure protection of the life, social and physical health of all family members, especially the physical and personal development of underage members of the family, and ensure the protection of victims of violence."

2.2. Article 2 "Legislation on social protection from violence in the family" should read as follows:

"This legislation is based on the Constitution of the Russian Federation, current Federal Law and other Federal laws."

2.3. The concept of "family" needs to be defined consistently. Article 4 says that "the family is a group of people, related by marriage and living together," while the Family Code of the Russian Federation, page 31, says that cohabitation of spouses is not obligatory. Cohabitation with legal guardians is envisaged by the Civil Code of the Russian Federation (point 1, page 35).

2.4. It is unclear which subject will be under the jurisdiction of this draft legislation when violence happens within the family. The working woman who is "not a dependent member of the family" can be a victim of violence in different ways and forms. The object of defense from violence should be defined much more clearly, rather than "any member of the family who is a citizen of the Russian Federation." For example, violence in the family is premeditated if this action violates the constitutional rights and liberties of the family and a citizen (page 4). The Russian Constitution guarantees the protection of interests of each individual, not only for citizens. The members of the same family can be from different countries and their children can be citizens of different states, i.e. the national regime of civil relations includes protection of dignity and honor also for foreigners and stateless persons.

The "material dependence" of a family member is defined as the lack of his or her personal income or an income which is below the minimum wage established by the Government. However, it is unclear how a person who is living on minimum wage can be "not materially dependent" while other forms of income (pension on age, stipend, welfare, etc.) are calculated as a proportion of the minimum wage in the country.

2.5 It is illogical to use such non-juridical concepts as "personality" instead of " person" or "citizen" as well as a phrase such as "difficult living situation." The draft legislation defines this as "a situation which objectively violates the life of a citizen (for instance, disability, illness, orphanage, unemployment, cruel treatment in the family, etc.)" which the individual cannot overcome on his or her own(article 3). It is proposed to use the more concrete and internationally used definition of a "crisis situation."

2.6. Some articles of the draft legislation are poorly structured, for example, the reference appears before the statement it refers to, which goes against international judicial standards.

Sponsored by the NIS-US Women's Consortium and the Crisis Center "Anna" with support from the Ford Foundation and the Office of Women in Development of the U.S. Agency for International Development

Last updated:    December 1997

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