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1 Domestic Violence Legislation and its Implementation AN ANALYSIS FOR ASEAN
COUNTRIES BASED ON INTERNATIONAL STANDARDS AND GOOD PRACTICES
12 EXECUTIVE SUMMARY law also includes in its defi nition of domestic violence unethical
dominance compelling family members to commit any unlawful acts. This allows for tolerance
for violence if certain conducts are not considered as amounting to unethical dominance. 16. The
forms of domestic violence contained in the laws include a range of acts that result in physical,
mental or sexual harm. Some laws, such as the Malaysian Domestic Violence Act, have adopted
broad defi nitions that can be interpreted to take into account any illegal act that results in harm
or injury. Others provide specifi c examples of acts that constitute domestic violence; this is the
case in the Cambodian law. The Philippine law contains a comprehensive defi nition of domestic
violence. In fact it separately defi nes acts that result in physical, sexual or psychological harm,
battery, assault, coercion, harassment or arbitrary deprivation of liberty, stalking, etc. A detailed
defi nition of domestic violence in the domestic law reduces the scope for judicial discretion and
guards against the infl uence of patriarchal biases in judicial decision making. 17. All laws on
domestic violence in ASEAN member countries cover matrimonial relationships. The
Cambodian and Indonesian laws only cover existing matrimonial relationships, while the
Malaysian and the Singaporean laws include former spouses within its ambit. The Philippine law
also covers sexual or dating relationships or a relationship with a person with whom there is a
common child. The widest coverage is provided by the Vietnamese law, which does not include
any clause defi ning survivors or coverage and is gender neutral. It is advisable to include all
forms of domestic relationships within the ambit of the law. 18. In relation to the form of
legislation adopted, ASEAN States have mostly adopted special legislation on the issue of
domestic violence. Exceptions are Singapore, which includes civil reliefs for domestic violence
in a family law, and Lao PDR, which has a broader gender equality law. In terms of criminal and
civil sanctions, in some countries criminal sanctions are included in the special legislation
adopted, such as Indonesia, the Philippines and Thailand. In others the sanctions can be found in
general criminal law, such as for Malaysia. Most of the laws, but not all, provide for the grant of
civil orders for relief and allow simultaneous criminal proceedings in cases of serious acts of
violence. The procedure to be adopted in criminal proceedings is provided for in general criminal
laws. 19. A substantive right toward realizing the right to equal protection of laws is the right to
access to justice. ASEAN member countries have adopted different mechanisms to give effect to
the right recognized under their laws. Main mechanisms are: pre-litigation intervention; access to
assisted alternative dispute mechanisms; and measures to ensure obtaining and compliance with
orders. Essential interventions at the pre-litigation stage are: the provision of protection to
complainants/ survivors of violence on an urgent basis (emergency interventions); the duty to
provide information to the survivors on rights and remedies available under the law; and the
assistance to facilitate complainants access to immediate reliefs and court processes. Provisions
for assisted alternative dispute resolution have been included at the pre-litigation stage or during
court proceedings in ASEAN countries laws. In terms of measures to ensure obtaining and
compliance with orders, most ASEAN countries, such as Indonesia, the Philippines and Vietnam,
have included provisions on the grant of immediate interim or temporary reliefs. All the laws in
the ASEAN region that allow for the provision of protection orders or other injunctive orders
ensure enforcement primarily through treating the breach of such orders as a punishable offence,
attracting immediate arrest either by the police or other competent authorities. X
14 EXECUTIVE SUMMARY 26. Globally there are examples of some good practices with
regard to implementation of domestic violence legislation and practices that together create a
domestic violence response system. The good practices may be divided into six categories: 1)
Inter-agency coordination; 2) Survivor-focused approach; 3) Strengthening the justice system; 4)
Legislating the provision of funding; 5) Monitoring and evaluation of implementation of
legislation or policies; 6) Initiatives focusing on needs of special groups. 27. Good practices in
inter-agency coordination focus on developing a common vision and action plan, enabling better
communication between agencies, and establishing a body to oversee the implementation. The
Duluth Model (Duluth Domestic Abuse Intervention Programme), based on victim safety,
represents a good practice. Its main goal is to bring together criminal and civil justice agencies in
responding to women s needs. Another example is the Australian Capital Territory Family
Violence Intervention Programme, whose main goals are ensuring survivor safety and
accountability and rehabilitation of offenders through coordination between the justice system
and other service providers. The London Domestic Violence Forum should also be considered a
good example due to the effective coordination between the individual components of the justice
delivery system. The Indian Andhra Pradesh Public Model is also worth mentioning. This model
involves various agencies (police, protection offi cers, legal aid services) and service providers,
and introduces the Domestic Incident Report Index, which aids agencies in case-tracking and
enables follow-up even after the actions of protection offi cers. 28. Survivor-focused practices
aim to support and enable women s specifi c needs in a situation of violence. A good example is
the provision relating to federal public housing in the American Violence Against Women Act,
which provides protection specifi cally to survivors of domestic violence. Another example is the
system of 30-day mandatory court review of batterer compliance with intervention programmes,
which is a suitable tool particularly in jurisdictions that provide for mandatory batterer
counselling. The Indian Dilassa Model, which is a model of health service delivery, should also
be mentioned. The Model is based on a preventive approach and aims to integrate violence
against women in intimate relationships within health care services. 29. Strengthening the justice
system is a fundamental goal. A women-friendly justice system can change the attitude of
institutional intervention in domestic violence cases. For example, after the battered women s
movement campaign in the United States for a stronger criminal justice response on the issue of
domestic violence, many states begun to provide for mandatory arrest and prosecution of
domestic violence offenders in their policies. Multi-Agency Risk Assessment Conference Model
of coordinated response (MARAC) should also be mentioned. MARACs are regular conferences
on particular cases of domestic violence, which bring together the agencies involved in the cases
to discuss the actions taken, the problems, measures to be taken to improve safety and access to
justice. Another good practice is the establishment of special domestic violence courts based on
the principle of therapeutic jurisprudence, such as the Dade County Domestic Violence Court
and the Vancouver Domestic Violence Court. Alternative Dispute Resolution models, where the
survivor and offender meet at a safe and neutral setting in the presence of a mediator to discuss
the abusive behaviour, also represent a good practice. 30. The USA Violence Against Women
Act of 1994, subsequently reauthorized in 2000 and 2005, is a good practice in terms of a
legislation providing funding to criminal law enforcement and various assistance programmes to
survivors of domestic violence. Another example is the Women s Safety Agenda, established in
2005 by the Australian government. This policy funds XII
18 EXECUTIVE SUMMARY While this paper has been written from a legal perspective, there
is much to learn for all gender advocates. Lawyers and judicial offi cials can learn about the
international legal framework to which their countries have committed, and about their
obligations. Judges and court offi cials in particular will benefi t from this discourse as they are
part of the state party and are duty-bearers by themselves. Moreover, gender advocates in
governments and civil society, law makers and law drafters can use this analysis of existing
domestic violence legislation, based on international standards, for further improvements. The
papers also provide a tool for gender advocates as shared good practices offer practical solutions
to the challenges we all face in dealing with domestic violence. Communities still grapple with
the notion that domestic violence is a private matter, something which should be resolved within
the confi nes of the homes. The second paper shows that when the home ceases to be a sanctuary,
there are many ways out. These papers make neither prescriptions nor solutions, but present
resource material for stakeholders to draw from and build upon to address the most pervasive of
human rights violations, violence against women. XVI
19
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