NationStates

Ending Domestic Abuse
Category: Regulation | Area of Effect: Legal Reform | Proposed by: Barfleur

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The World Assembly,

Applauding prior action taken by this body to combat sexual offenses, crimes against children, and domestic abuse,

Concerned about the potential for victims of domestic abuse to be prosecuted either as accomplices or under theories of failure to protect others, without regard for the particular nature of such abuse which makes failure to protect near-impossible,

Desiring to add teeth to existing orders of protection and to facilitate the issuance of new orders, and

Committed to protecting victims and survivors of domestic abuse from future retaliation by their abusers,

Hereby enacts as follows:

1. Requirements for criminal prosecution.
   A person may not be convicted of an offense of enabling, or failing to protect a child or other vulnerable person from, physical violence, sexual abuse, or neglect, if the defendant:
   
   1. reasonably believed their own life or safety to be in danger as a result of the same person or persons who engaged in the underlying conduct the failure to protect from which constitutes the instant offense;
   2. was under the influence of any mind-altering substance not voluntarily consumed, and was therefore incapable of effectively protecting such child or other vulnerable person;
   3. was not actually present in the same location, and did not have a reasonable opportunity to become present, at a time when the defendant had a reasonable opportunity to protect such child or other vulnerable person; or
   4. was not physically able, due to restraint or confinement, or due to bodily condition, to render meaningful aid to the degree required to purge criminal liability in the absence of this clause.
2. Applicability of section 1.
   Section 1 applies retroactively, without regard to the stage of the criminal proceedings at the time of enactment of this resolution. Any person convicted of an offense of failing to protect a child or other vulnerable person from physical violence, sexual abuse, or neglect, where the conviction is subject to appeal or has become final at the time of enactment of this resolution, may petition the court having jurisdiction of the offense to reopen the case, and the court shall grant such petition on a showing that:
   
   1. the defendant intends to raise any point described in section 1; and
   2. given the facts of the case and the evidence known to the court, such a defense has a colorable claim and a reasonable possibility of success on the merits.
3. Mitigation.
   Where a person is convicted of a violent or sexual offense against a person who, at the relevant time, was a child, lineal or lateral descendant, spouse, civil partner, legal ward, or cohabitant of the defendant, and such conviction relied on any theory of criminal liability involving a person other than the defendant, the court shall permit the defendant, before sentencing, to offer evidence that:
   
   1. the defendant engaged in the criminal conduct as a result of the actual or threatened actions of such other person; and
   2. such actions, if actually carried out, would be expected to be worse or of a more serious character than the offense for which the defendant has been convicted.
4. Protective orders.
   Where a person is convicted in a member nation of a violent or sexual offense against a person who, at the relevant time, was a child, lineal or lateral descendant, spouse, civil partner, legal ward, or cohabitant of the defendant, the court may, in addition to any punishment imposed by virtue of the conviction, issue an order imposing such restrictions on the defendant as it deems necessary to ensure the victim's protection from the defendant or from any person associated with the defendant. The court shall presumptively issue such an order, unless of the belief that doing so would be manifestly unnecessary in light of all the circumstances. Such order shall be for a term sufficient (but not greater than necessary) to prevent further abuse, and the beneficiary of such order shall have a legally-recognized interest in its enforcement. In the event that the underlying conviction is set aside, the order shall be quashed.
   
   
5. Housing and benefits for victims.
   The victim of a violent or sexual offense shall, if a cohabitant of the defendant, be provided with housing separate from and independent of the defendant on request. In any such case, the victim shall not be liable to the defendant or an agent of the defendant for any fee arising from early termination of a lease, or any similar penalty. And no such victim shall lose any government-granted benefit granted to or by virtue of the convicted abuser.

"Once again, I present to the crowd a proposal to deal with the scourge of domestic abuse. Here, we hope to follow up on GA#597 in the areas where more work has been suggested. I appreciate the feedback of the international community."

Kevin Mitchell, third-in-line to the post of Delegate-Ambassador: The Tinhamptonians cannot support Article 2. While no-contact orders have their place in many domestic violence prosecutions, we do not see the point in requiring that they be imposed in all sentences involving domestic violence in the family: for instance, where the abuser has been handed a lengthy prison sentence which leaves them unable to contact whoever they abused by definition, or committed their crime many years ago but has shown an unfailing pattern of respectful, non-violent behaviour since. Otherwise, we look favourably upon this proposal.

“We thank Mr. Mitchell for his advice, which we have happily followed. Now, the court must go in on the understanding that a no-contact order is appropriate, but may choose not to issue one if the circumstances make it manifestly unnecessary, such as a pattern of respectful and genuine behavior.”

"Edited to provide that a victim shall not lose any state-granted benefit (whether housing, cash assistance, or otherwise) to which they are entitled by virtue of a connection with another person, thus ensuring that a convicted domestic abuser may not hold any status over the head of the victim."

Re Article 2: what about the so-called "boyfriend loophole" (OOC: refer to the Bipartisan Safer Communities Act)

Stefan Savych and the Chipolian WA Delegation: "Was this draft written to fix a loophole or to add onto something that was not covered by #597? We just want clarification."

Simone Republic wrote:Re Article 2: what about the so-called "boyfriend loophole" (OOC: refer to the Bipartisan Safer Communities Act)

GA#399 forbids all gun control measures which do not "prevent firearms from being sold to or used by individuals that pose a danger of performing imminent lawless action." Not every person who is convicted of domestic abuse is at all times likely to commit ILA.

Ambassador The People: "Su-Su-Support."

Tinhampton wrote:

Simone Republic wrote:Re Article 2: what about the so-called "boyfriend loophole" (OOC: refer to the Bipartisan Safer Communities Act)

GA#399 forbids all gun control measures which do not "prevent firearms from being sold to or used by individuals that pose a danger of performing imminent lawless action." Not every person who is convicted of domestic abuse is at all times likely to commit ILA.

OOC: This came up during the context of the original GA#597, where I wanted to ban convicted abusers from owning guns (with certain exceptions), and Sep showed that that would contradict GA#399.

Chipoli wrote:Stefan Savych and the Chipolian WA Delegation: "Was this draft written to fix a loophole or to add onto something that was not covered by #597? We just want clarification."

"This draft was written primarily to ensure that the justice system does not harm, whether directly (by means of criminal prosecution) or indirectly (by means of denial of services), individuals who are found to have been subjected to domestic abuse. That is the purpose."

"We have added a new clause 2, which would permit individuals convicted of failure-to-intervene offenses to reopen their cases if there is a reasonable chance that, with the defenses now available in clause 1, their case would have turned out differently. It would be a manifest injustice to hear stories of survivors prosecuted as criminals, recognize that this is wrong, and do nothing to help them once we have resolved to prevent this same thing from occurring in the future."

How is this an international issue?

-Benji

Saint Tomas and the Northern Ice Islands wrote:How is this an international issue?

-Benji

"Two of the main obligations of a government--nay, the leading obligations--are to protect its people, and to ensure justice. Here, this proposal does as follows: clause 1 would ensure that only individuals who have actually chosen to commit a crime will be subject to penal sentences, and that victims are viewed and treated as victims, not as accomplices. Clause 2 would apply this to past cases, on the understanding that victims of prior injustice should have an opportunity to benefit from new legislation intended to remedy their prior mistreatment. Clause 3 would require member nations to impose such limits on violent criminals as is needed to assure the safety of their victims. Clause 4 would protect victims from their abusers' attempts to manipulate the legal system.

"This body has, in the past, seen sexual abuse and domestic violence as issues worthy of international attention, including a resolution authored by this nation's very delegation. I hope we can do the same thing again."

Full support

OOC: So... what about cases where a current abuser is an abuser because they were abused in the past? Are they a victim entitled to protections, simply because they were once abused? Not being sarcastic, just tired, and the Legalese is thick in the draft.

EDIT: Or what about an abused wife who helps her husband abuse their children so that she may escape the abuse being directed at her?

Potted Plants United wrote:OOC: So... what about cases where a current abuser is an abuser because they were abused in the past? Are they a victim entitled to protections, simply because they were once abused? Not being sarcastic, just tired, and the Legalese is thick in the draft.

EDIT: Or what about an abused wife who helps her husband abuse their children so that she may escape the abuse being directed at her?

OOC: With respect to your first point, I expect that member nations would permit such a defendant to raise that point either at the guilt stage as a partial defense (such as provocation) in accordance with its own laws, or at sentencing.

With respect to your second point, I added the new section 3 to address just that.

OOC: It's been a while, so let's say bump.

In principle, I believe I will oppose anything "applied retroactively". I suspect it might also be in breach of GA#78, although that's not how it's exactly worded (because the wording of GA#78 is not watertight) and depends on how Gensec would rule on this.

The rest concern more complex issues that I'd think about later.

Simone Republic wrote:In principle, I believe I will oppose anything "applied retroactively". I suspect it might also be in breach of GA#78, although that's not how it's exactly worded (because the wording of GA#78 is not watertight) and depends on how Gensec would rule on this.

The rest concern more complex issues that I'd think about later.

OOC: This retroactive application would be solely to the benefit of the defendant, which is entirely consistent with the operative clauses of GA#79.

"We wonder if some explanation of this proposal's aims might justify its creation. In many member nations, a parent or guardian of a child can be prosecuted criminally for not doing enough to protect their child from abuse or neglect, even if that person is themself a victim at the same time. This can lead to situations where a parent in an abusive relationship is afraid to intervene when their child is being abused, either because they have just been battered themselves or because they know they will not be able to prevent the abuse and worry that stepping in would make things worse. Even worse, there are documented cases of perpetrators of abuse receiving more lenient sentences than their 'accomplices' who failed to intervene, which turns justice on its head by granting greater leeway to a person who chooses to initiate violence than to a person who imperfectly responds to that violence.

"To remedy this, sections 1 and 2 require nations to allow defendants in such cases to show that they had some legitimate reason to not become involved, from reasonable fear of violence to actual inability. And section 3 creates a defense of duress, where a defendant may argue that they were acting in reasonable fear of even worse harm. A person should not be able to abuse two people and then blame one for the abuse of the other."

OOC: For scholarship on failure-to-protect laws generally, see this. And for a more recent (and less scholarly) report on how such laws contribute to the further victimization of people affected by abuse, see this.

"Section one still doesn't apply to cases where someone failed to intervene due to legal incompetence, restraints, and physical inability."
- Maria-Fernanda Novo, WA Ambassador for the Armed Republic of Juansonia

Juansonia wrote:"Section one still doesn't apply to cases where someone failed to intervene due to legal incompetence, restraints, and physical inability."
- Maria-Fernanda Novo, WA Ambassador for the Armed Republic of Juansonia

"Physical restraint and inability have been included into new clause 1(d), for which we appreciate the Juansonian ambassador's advice. As to legal incompetence, we consider it highly unlikely that a person who lacks legal competence would be criminally charged for the conduct of another. Generally speaking, those lacking competence cannot be hold guardianship to a child or be considered to be in a parental relationship to a child, and thus it would be difficult to argue that they have a duty of care towards a child."

OOC: It's been 3 weeks and now is as good a time as ever, soooooo...

For an argument as to why failure-to-protect laws are a form of revictimization with no redeeming value, see this. For an argument that such laws are in fact counterintuitive and encourage victims of abuse to stay silent and remain in dangerous situations, see this.

Ooc: Without divulging too much about my RL, this is a topic I feel very strongly about, so full support in principle.

Barfleur wrote:was not actually present in the same location, and did not become present at a time when the defendant had a reasonable opportunity to protect such child or other vulnerable person;

My lone piece of feedback is that this should require the prosecuted individual to be unable to arrive at the same location if they were aware of the incident, or had sufficient information to reasonably be aware of it. If this is addressed, I can support this as written.
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Simone Republic wrote:I suspect it might also be in breach of GA#78, although that's not how it's exactly worded (because the wording of GA#78 is not watertight) and depends on how Gensec would rule on this.

Assuming you mean GA #79, rather than Universal Library Coalition, not only does that resolution itself grant retroactive pardons, but other resolutions have been passed which grant retroactive pardons, or require member nations to set up procedures for the same. See for example GA #611, GA #577.

OOC: I appreciate the feedback and have taken it into account. Also, section headers: what does the crowd think? I tend to like them because they break up the monotonous text, but not everyone has the same thoughts.

Barfleur wrote:OOC: I appreciate the feedback and have taken it into account. Also, section headers: what does the crowd think? I tend to like them because they break up the monotonous text, but not everyone has the same thoughts.

(OOC: I like them. They aren’t necessary, but they do serve a stylistic function, and they will make it easier for players quickly glancing at the proposal on the at-vote screen to see what the legislation does.)