Restraining and isolation – what should be the new law on the prevention of violence

The Council on human rights under the President of Russia will create a working group to develop the law on the prevention of family violence. One of the co-chairs of the group – analyst Ekaterina Shulman, talks about what’s wrong in the current law, why the decriminalization of article 116 of the criminal code is the right measure and what should be prevention.

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– Why is it important that a new draft law on the prevention of domestic violence? Existing laws enough?

– That now we can refer to family violence in terms of laws is article 116 of the Criminal code “Assault”. She punishes the infliction of physical pain, not causing harm and not causing minor permanent incapacity for work. This is the kind of physical damage that does not fall in the category of light, moderate or heavy – for them there are separate articles of the criminal code, which decriminalized nobody.

Catherine Shulman. Photo: Facebook

Under article 116 of the criminal code was introduced decriminalization. What is it? This means that the first offence is administrative, not criminal, and another criminal already. This is quite similar to what was done with clause 1 of article 282 of the criminal “Extremism”. Decriminalization is not the abolition of punishment, and the translation of punishment from criminal to administrative.

Why do I think this is the right measure? The problem of article 116 of the Criminal code was that it, for some reasons did not work. The main problem was that this article of the private prosecution (the prosecution may be private, private-public and public).

In a private prosecution the burden of proof and, in fact, the conduct of the trial rests with the accusing side. That is, one who takes the statement, and must collect the evidence base. And it may be terminated at the request of this said part. More than 70% of cases article 116 of the criminal code occurred, that is, the victim (most often the woman) brought the statement, and then he picked up.

And law enforcement agencies did not take these statements because they knew they would have to do empty work in most cases. Will be filed, and then the husband and wife will reconcile and take back the statement.

The transfer of the administrative code made the accusation public-private: that is, requires the application to initiate proceedings, but to take it back anymore. In this sense, the administrative code better than the criminal, for such violations.

In addition, according to article 116 of the criminal code was a sanction of up to 2 years in prison, but she almost never used. The main penalty that was applied, is fine. But the very presence of such a term of imprisonment further deterred claims. Because they said, “do You want to put two years of your husband (father/brother)? People are scared. A fine – too did not fit the punishment for such acts. It is pure mockery because in a significant number of cases of domestic violence the one who hits the victim, at the expense and lives.

We often imagine a husband who beats his wife, but very common, unfortunately, the script, especially in the provinces – the son beats his mother and takes a pension. Old people are even more helpless than even a woman with a child, they have nowhere to go. That is, the fine shall be paid from the funds of the victims themselves or from the General family budget, which only makes the family poorer.

In General, the penalty cannot be punishment for violence is some kind of “Russian truth”: a penalty is the sanction for violation of administrative rules or regulations, and not for the beating of a living person.

– What is the punishment for family violence may be optimal?
– In the administrative code is also present penalty of a fine, but there is another form of punishment that, in my opinion, is the best in cases of this kind. It is the administrative arrest. This is the best thing you can do to prevent family violence.

First, when our poverty is an alternative to the so-called “restraining order”. We have nowhere to put the aggressor, we have no shelters (temporary social housing), lack of shelters for victims. And in cases where the aggressor also is the owner of this apartment, it is impossible to resettle anywhere.

But the arrest on 3, 5 or 15 days separates the victim and the aggressor. Victims have time to escape, the rapist have time to think. The detention center is not desocialized as a long prison sentence, but there is quite a mess, and maybe the rapist will not want to go back a second time.

Yet for several reasons I believed and continue to believe that the decriminalization of article 116 is correct. Administrative proceedings faster, easier and not so costly for the applicant. This is not to take the statement back. That since decriminalization, the number of cases under article 116 of the criminal code has increased – this is a good sign, not bad. It’s not a sign that began to beat more, it is a sign that victims were more likely to apply. Consequently, they stopped to consider what happens to them, normal. And this is exactly what we should aspire and which can help the public discussion: it is important that domestic violence was considered socially unacceptable.

– What exactly should be in this law?
– First of all, this “restraining order”. It can be imposed by a magistrate on application by the victim. And secondly, the system of temporary social housing or shelters. For this reason there are different opinions: whether to relocate the aggressor because he is a threat, or, conversely, to provide housing for the victim – then it is necessary to think and consider different options.

This is the main problem of domestic violence: it is difficult to divorce the two sides. They just can’t be separated, because they live together. When people are physically nowhere to go from each other, it is necessary to temporarily relocate the victim. But I do support the idea that at 15, 20 and 30 days to relocate the aggressor. And he many times will think before to go back to that.

Domestic violence is terrible the fact that it tends to progress. At first fought, then fought word for word, and it could end in murder. We already have articles for personal injuries mild, moderate, severe severity, there is an article “torment” – that is, in General, quite a large palette in the Criminal code, which allows you to punish a fait accompli violence.

But our task is somehow to engage in the prevention of family violence. The law can appear such measures as forced psychological treatment, some courses on anger management, there are all kinds of educational and medical interventions that are applied in developed countries.

What should not be? Should not be a sense of impunity, that this is some internal family matter that is nobody’s business.

And, of course, do not want to repressive tool for the fabrication of criminal cases, to penalize the stains or use it in family and property conflicts.

Who will participate in the development of the new law?
How likely it is that the bill will be considered and further approved?

Neither Council on human rights under the President, not of the Ombudsman for human rights has no right of legislative initiative. In accordance with the Constitution it is the President, government, deputies of the state Duma, members of Federation Council, higher courts and the regional legislative assemblies.

Now in the Duma database no the proposed draft law on domestic violence no. But there are a few organizations that work to prevent domestic violence, and now since yesterday a working group under the HRC. We are ready to take those developments that already have public organizations activists.

Our main task – that the bill was introduced, and that we were able to bring it at least to the first reading. Even if it will not be accepted the first time, we at least put in the field of public attention that is already done. But the result of our work should be a new Federal law.

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