The Domestic Violence Phenomenon and the Need of Legislative Changes

| Aneta Genova,

On June 17, 2009 the Council of Ministers of the Republic of Bulgaria reviewed the draft decision on the approval of the Bill Amending and Supplementing the Protection against Domestic Violence Act, submitted by the minister of justice.

These changes were debated for a long time. Non-governmental organizations involved in the protection of victims of domestic violence insisted that they be adopted. The bill was submitted to the Council of Ministers in March but was not approved and hence was not submitted to the National Assembly. The bill reviewed on June 17 is only a part in a series of actions aimed at making our legislation compliant with the modern understanding of the severity of the “domestic violence” issue.

The Protection against Domestic Violence Act was adopted in 2005. Its implementation quickly revealed its gaps and deficiencies. The small amendments in 2006 did not result in any significant changes. The amendment of the Penal Code this year is quoted to have achieved a significant progress. The failure to comply with an order for protection against domestic violence was incriminated. This amendment of the Penal Code eliminated the ambiguity in evaluating a failure to comply with a protection order.

With the amendment of the Penal Code, more specifically of the stipulations of art. 296, para 1, the order for protection against domestic violence was added to the list of acts for which the failure to comply, the attempt to hinder or prevent enforcement result in criminal liability. Before the amendment, the failure to enforce a court decision was subject to criminal persecution. The change put an end to the scholastic debate on the essence of the order and gave the victims unambiguous guarantees for judicial protection.

However, art. 161, para 1 of the Penal Code remains unchanged. It stipulates that in cases of battery, “caused to ascendant, descendant, husband, brother or sister”, i.e. in cases that generally fall under “domestic violence”, „criminal proceedings are initiated on complaint by the victim“„Battery“ is a heavy crime resulting in severe damages to the health. These include: damages to the hearing or the vision, fractures of the limbs, the torso or the neck, damages to the genitals (excluding loss of reproductive ability); broken jaw or teeth, disfigurement of the face or other bodily parts; injuries that penetrate the cranial, chest and abdominal cavities. “Complaint by the victim” means that, in cases of domestic violence, the state doesn’t interfere in the investigation and the persecution of the perpetrator of such a severe offense against the person. The existence of this norm in our legal system is incompatible with the protection of the rights of the victims of domestic violence.

The existence of this text doesn’t make minister Tacheva’s proposal useless; however, it demonstrates a need for subsequent, decisive steps to combat this phenomenon.

The bill does indeed contain some important solutions to problems faced by the practitioners in the field of protection of victims of domestic violence. Some of them include:

- The scope of the term “domestic violence” is expanded. In its previous version the text allowed for speculation with regard to the economic and the emotional violence. Although both could be included in the general term, they were not differentiated and recognized as individual, independent forms of domestic violence. 
- It is recognized in an unambiguous manner that violence in the presence of a child is also domestic violence. Currently, such a conclusion is made by the collection of explicit evidence and witness testimonies. The new text of art. 2, para 2 of the Protection against Domestic Violence Act will make speculation impossible.
- The scope of the protection is expanded. Violence exercised by more distant kin or kinship by marriage is also regarded as domestic violence. This allows protection to be granted to persons who were previously not eligible.
- The duration of the protection is extended. Should the bill be adopted, protection will be granted for a period of 3 to 18 months. In comparison, currently protection is granted for a period of 1 month to 1 year.
- A special budget is allocated for the financing of programs for prevention of, and protection against, domestic violence; for assistance to victims of domestic violence; for training of NGO staff or persons working for them; for correctional measures for individuals exercising domestic violence. An ordinance defining the rules and procedures of how the funds will be used, is also expected.

The need for the proposed changes has existed for some time and has been long ago proven in practice. There are many examples to this end. We’ve seen cases, such as that of an elder woman with a severe physical disability who was being severely abused – physically, emotionally and economically – by her nephews. Due to the gap in the Protection against Domestic Violence Act, however, it was impossible to initiate proceedings against the perpetrators. I’ve had to ask for many different expert opinions, in order to prove in court that the children in a relationship are victims even if they have only witnessed violence. A conclusion that courts interpreted ambiguously. These and many other practical examples make the amendment of the law pressing, important and life-saving for the victims. The resistance by which the change is met, however, is puzzling. So are the slow pace and the illogical timing of the submission of the bill to the Council of Ministers. On one hand, the pre-election euphoria is probably diminishing the resistance.

On the other hand, as Nedelina Aneva points out in an article published by The Sega newspaper, the newly elected National Assembly traditionally revises and turns back bills submitted in this way. How does minister Tacheva’s bill relate to this fact? We don’t know. Is the timing selected for the submission of the bill an expression of political desperation, or an attempt of avoiding the resistance of those cabinet members and members of parliament who don’t regard domestic violence as a problem? I can’t help to notice that through the legislation our state continues to demonstrate a lack of interest bordering on support to violence, and that the pace of law development is insufficiently fast to meet modern society’s needs. This is the situation today. If a woman is beaten so that she’s broken a jaw, a leg or a hand, or if she is disfigured and this is domestic violence, she may, of course, seek protection under the Protection against Domestic Violence Act. However, the state will do nothing to hold the perpetrator liable, should he be among the victim’s closest kin or husband. The state would also not interfere if the victim is threatened and therefore asks that the proceedings be terminated. Even if she musters the strength to file a complaint, she won’t get any support by the state if her husband threatens her and locks her up on the day of the court hearing (the lawsuit is dismissed if she doesn’t appear in court). In this respect, our legal system demonstrates an outdated understanding of the essence of violence in the family and continues to be unnecessarily tolerant and hesitant with regard to its manifestations.

As far as I know, no one has ever calculated the cost of such a tolerant attitude to violence. Let’s think of the consequences for the victims, their children and, in some cases, the generations to come: risk of emotional disorders, depressions, somatic diseases, fractures; days in which the victims were unfit to work; human potential lost; energy invested in recuperation in the happy cases with favorable outcome; the risks to children who have lived in violence – deviant behavior, becoming victims of human trafficking, drug abuse… If we get to really think about this, we’ll realize that our society is paying a huge price that cannot be justified by prejudice and political plays.