After the Istanbul Convention: Measures against Domestic and Gender-Based Violence in a Comparative Legal Perspective
The phenomenon of domestic and gender-based violence against women is widespread and affects all social classes and all countries. In 2014, for example, 33% of women in the EU between the ages of 18 and 74 had been victims of physical or sexual assault at some point in their lives. In addition to physical and sexual violence, women also experience psychological, verbal, and economic violence. The project thus addresses a common problem that has long been the subject of public debate and one whose elimination is the goal of numerous international initiatives.
The objective of the research project is to study and evaluate the legal issues associated with violence against women. The focus is on providing victims with the best protection possible, but the scope of the rights of perpetrators will be considered as well. The project takes an interdisciplinary approach, examining not only criminal law but also measures of civil and public law. With respect to substantive criminal law, in addition to a broad range of general and specific offences and aggravating factors, other issues such as the requirement of a criminal complaint filed by the victim, the statute of limitations, and the possibility of probation or parole will be considered.
Regarding the law of criminal procedure, a primary issue is preventing the secondary victimization of victims. This may be achieved, in particular, by avoiding personal contact between the offender and the victim. Involving and supporting the victim in the criminal proceedings is also important, however, as is ensuring sufficient communication and speeding up the proceedings. Another important issue is the protection of victims during the preliminary investigation. Special coercive measures such as removal from the family home and restraining orders as well as the loosening of requirements for arrest and pre-trial detention contribute to the realization of this goal.
Enabling victims to obtain civil compensation more easily is made possible by means of rules that simplify the awarding of civil compensation within the framework of criminal proceedings as well as by rules that condition the issuing of “rewarding” mechanisms – such as the dismissal of proceedings or the possibility of probation – on the payment of compensation or other kinds of reparations. In addition, protective orders such as removal from the family home or no-contact orders are often anchored in civil law.
Support of a social and economic nature is also an important factor that contributes to the protection of victims of domestic violence. Legal aid, financial support for shelters for battered women and support hotlines, the ability to take leave from work in accordance with labor law, and the possibility of ordering the perpetrator to make payments to the victim are all examples of this kind of assistance. The granting of a residence permit can help migrant women.
Finally, the role of prevention must also be considered. In addition to general and political initiatives to raise awareness, advanced training, cooperation between the various institutions, reintegration of offenders, and data collection, (administrative) protective measures independent of criminal proceedings are essential. They include immediate emergency measures carried out by the police, such as removing the offender from the home or issuing a warning.
As far as method is concerned, the project adopts a comparative approach. The legal system in Italy is of particular interest in this context. The Italian penal code of 1930, which dates to the Fascist period, contained numerous sexist provisions whose piecemeal reform did not begin until the late 20th century. Since the turn of the millennium, the Italian legislature has focused specifically on the problem of gender-based and domestic violence – due in part to international requirements – and it has been active, enacting four major and a number of smaller legislative packages. These will be used as a benchmark against which the German legal system can be evaluated. In a subsequent step, the plan is to include additional legal systems that exhibit special features or interesting approaches.
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