Proposed Russian Domestic Violence bill prioritises “preserving family” over the life and health of women
The draft Law on Domestic Violence was released on Friday November 30 by the Federation Council and is open for comments until December 15. It gives domestic violence a legal definition and outlines various prevention measures. Many women’s rights organisations feel the draft law will not provide adequate victim protection and is not an effective tool to stop the abusers. At the same time, as the Criminal Code of Russia does not criminalize domestic violence, leaving many abusive acts committed in the domestic setting unpunished, more needs to be done to ensure victims are adequately protected and supported.
40% of violent crimes in Russia occur in families. Nevertheless, two years ago Russia decriminalized simple assault of family members, which included cases of spousal and parental abuse. This act was moved from the Criminal Code to the Administrative Code with a fine imposed for the first battery. Human Rights Watch’s 2018 report into Domestic Violence in Russia found serious gaps in Russia’s laws, limited avenues to redress including limited availability of protection orders, and inadequate police and judicial responses. This all results in women facing threats of or actual serious physical violence with little or no protection. More recently, these gaps were outlined by the European Court of Human Rights in the case of Volodina v. Russia.
Developing the draft legislation
The draft law on domestic violence was developed by women’s rights activists including the Parliamentarian Oksana Pushkina in conjunction with women’s and human rights groups and lawyers. More than 70 groups, including Sisters Center and Human Rights Group “Agora”, made a joint statement calling for the adoption of a comprehensive law based on the principles of safety of individuals. Equality Now supported the campaign with statements addressed to the Duma and the Federation Council on the special attention which needs to be given to the issues and implications of sexual violence in the framework of domestic violence.
Women’s rights activists saw this legislative change as an opportunity to ensure Russian law reflects international human rights standards, however this has not come to fruition. The current draft legislation has been significantly modified after the discussions in the Federation Council and lost some of its key provisions which are important for effective victim protection.
Attempts to introduce greater protection measures for survivors of domestic violence continue to face resistance from the conservative part of the population. The new draft has been criticized by the Russian Orthodox Church, which stated that it “disregards universally recognized legal principles of common sense, justice, and equality,” and warns that its implementation “can and will lead to grave and mass violations of the rights of individuals and families.” The biggest argument of those who oppose the law is that it will destroy the family.
The Law on Domestic Violence needs to be victim centered and the State needs to introduce measures that will ensure prevention of abuse, protection of victims and fight domestic violence as a form of discrimination against women in line with its international human rights obligations. In addition, domestic violence has to be criminalized by the Criminal Code of Russia to ensure that the perpetrators are held to account with deterrent sanctions.
The draft law does not go far enough to guarantee the rights of women
"Preserving family" is the guiding principle of the law (Article 4) together with "protecting the rights and freedoms of citizens". The safety of individuals and the protection of their rights and freedoms should be the guiding principle of the Law, which should not be overridden by the interest of preserving the integrity of the family.
The definition of domestic violence should cover all forms of violence
The types of violence have not been identified and defined in the draft law. All types of violence - physical, sexual, psychological and economic - should be clearly defined.
The proposed Law defines domestic violence as “a deliberate act (action or inaction), causing or containing the threat of causing physical, (or) mental suffering, and (or) property damage”. This definition is problematic as it does not provide clarity on what exactly the Law would be covering. For example, it fails to define what would constitute ‘physical violence’ or the nature of the violence which would cause ‘mental suffering’. In order to ensure the definition is compliant with international human rights law, such as the Istanbul Convention, the definition should cover all acts of physical, sexual, psychological or economic violence. Protection orders and prevention and support systems, as provided in the draft, should apply to all forms of domestic violence.
The law must cover all those at risk of domestic and gender-based violence
The law covers only spouses, former spouses, persons with a common child (or children), close relatives, as well as cohabiting and other household owners/other persons and relatives associated with the property. A great number of people who can experience domestic violence are not included within the ambit of the draft law. This is a critical failing with respect to cohabitees. As the law is not retroactive, it will not cover about 30% of married couples in Russia who have lived together before their marriage, most of whom did not have children before marriage. The definition also does not include women being stalked by men, who are not their current or ex partners and with whom they had previously cohabited.
Domestic Violence Should be Criminalized
Currently the Criminal Code of Russia does not specifically criminalize domestic violence, which leaves many forms of abuse happening in the family unpunished. The forms of violence envisaged in the domestic violence law draft do not amount to criminal acts.
States have a duty to put in place the necessary legislative measures to ensure survivors have access to justice and are protected from any further violence. In addition to specific civil remedies, such as protection orders, a State should also ensure it provides criminal sanctions for all forms of domestic and gender-based violence. Currently, the Russian Criminal Code only criminalizes specific types of bodily harm. Other forms of violence, such as first instance battery (which still constitutes an administrative rather than a criminal offence), psychological violence (such as regular insults, blackmail, humiliation) and stalking, are not criminalized. This is contrary to international human rights standards.
In order to ensure victims are appropriately protected from violence, it is important that a variety of administrative, criminal and protection remedies are made available for all forms of domestic and gender-based violence, regardless of their gravity. This would require Russia to also ensure there is explicit criminalization of domestic violence, as suggested for example in the recent case of Volodina v. Russia - “The Court finds that the Russian legal framework – which does not define domestic violence whether as a separate offence or an aggravating element of other offences and establishes a minimum threshold of gravity of injuries required for launching public prosecution – falls short of the requirements inherent in the State’s positive obligation to establish and apply effectively a system punishing all forms of domestic violence and providing sufficient safeguards for victims” (para. 85).
Domestic violence crime is not a “private” matter and must be subject to public prosecution
Across the world, domestic violence is too often treated as a private matter rather than as an issue of public interest. Commonly in the region, prosecution of domestic violence, and even in some instances sexual violence, relies on a survivor bringing a case, collecting evidence and making sure it is pushed through the criminal justice system. This indicates a lack of recognition that violence against women is a serious matter which concerns the whole of society. The Criminal Code must reflect that domestic violence is indeed a matter of public interest. This would ensure that the authorities have an obligation to intervene in cases of domestic violence, and are obliged to gather evidence, bring the prosecution, and support the prosecution in court (See Volodina v. Russia, para. 82).
Reconciliation denies victims justice and puts them at risk of further abuse
Reconciliation should not be applied either for dropping the criminal investigation, or for depriving the victim of the safeguards provided by the domestic violence law.
In working to prevent domestic violence, public associations and other non-profit organizations are entitled under the draft law to “facilitate the reconciliation of persons subjected to domestic violence with the perpetrator” (Article 16). Although going through a reconciliation procedure is not mandatory, given the prevalence and nature of domestic violence, it should not be an option at all as this measure puts pressure on the victim and also allows perpetrators to continue with the abuse and violence without any accountability.
Protection orders should prioritize the protection of the victim
While the introduction of emergency protection orders (Article 24) is important since they allow immediate protection of the victims, court restraining orders (Article 25) can be imposed on the perpetrator only if there is evidence that the abuser has a place to live. This prioritizes the rights of the perpetrator over the right to safety of the victim and is against international human rights standards. Responsibility for violating the orders are either not clear or not sufficient. Responsibility for violation of a restraining order provides only for administrative liability and there is no criminal responsibility for a repeated violation of the restraining order. Therefore, this measure cannot have any significant deterrent effect.
Victims of domestic violence must be supported
Even though criminal offenses are outside the scope of the draft law, in situations of domestic violence, the protection of victims and providing them with support (social, psychological, etc.) is especially important during the period when victims submit complaints about an offense / crime, as well as during the verification of these statements.The draft law does not provide any social, psychological or other support of the victim at the time of filing the claim or at any time up to the court hearing. If the issue concerns an administrative violation, it may take months before the court hearing and victims are not protected during this dangerous period.
The law should lay out a coordinated and comprehensive response to domestic violence
The coordination of the institutions involved is not clearly outlined in the draft law. There is a need for an holistic, victim-centered approach involving the establishment of comprehensive referral systems and multi-sectoral coordinated approaches that involve cooperation between institutions within and between sectors.
Domestic violence is about power and control
While perpetrator programs as provided in the draft law (Article 23) may have a role to play, more effort should be spent particularly on changing social and cultural patterns that condone violence against women and more attention needs to be paid to a survivor-centered approach and in addressing the survivor’s needs. Domestic violence is not about anger but about power and control. Therefore, behavior change activities and state campaigns to challenge harmful gender norms are more effective in the long run than anger management courses for the perpetrators.
Russia’s draft Domestic Violence Law must be revised to meet international human rights standards
Given the scope of domestic violence in Russia, it is critical that Russian lawmakers, together with civil society, introduce comprehensive measures to prevent domestic violence, protect victims and bring perpetrators to account according to international human rights standards in protecting citizens from domestic violence. Equality Now would be pleased to contribute to these efforts.