Draft Law For The Protection Of Women Against Domestic Violence

On Apr 11, 2012

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Summary

Since sexual discrimination is still embedded in culture, law and social relations;

Since education is still reproducing discriminatory thought;

Since unenlightened and discriminatory thinking have been able to penetrate our society and culture up to the deepest roots;

Since the achievement of equality between members of society necessitates the participation of all actors in the fate of its structure;

This draft law targets the mobilization of societal participation against the phenomenon of domestic violence, break its infernal cycle and save victims crushed by this cycle.

Although the past years have witnessed initiatives by organizations, associations and individuals who attempted to deal with the reality of social relations associated with the family and withstand violence borne by women, those attempts have not reached further than shedding light on the legal, cultural, social, economic and health aspects of this phenomenon.

However, all those efforts and studies unraveled the deep-rootedness of the phenomenon, and the extent to which women suffer. Inevitably, they had to culminate with a pivotal question: how can women be protected from domestic violence?

What are the measures that should be enacted so that women victims of violence can find the necessary protection urgently? How can supporting organizations and centers receiving women victims of violence be enabled to perform their role in providing the required support to victims?

How can an amendment be introduced to the law in order to respond to considering domestic violence a general societal concern rather than the existing legislative philosophy which considers this violence a private matter.

In the absence of legal provisions incriminating domestic violence, society gave room to this type of violence under the pretext of preserving the family and protecting it from disintegration and collapse. It has been tolerated even though it entails a violation of the simplest and most basic criteria of human rights.

In the name of maintaining the household, household relations based on human oppression and paternal authority have been condoned, as if women were only to pay the price. In the name of the internal family “business” and the household independent existence, the legal and legislative structure of society paid no heed to various crimes of violence occurring within the family, to the extent of bestowing legitimacy on such practices.

Despite the fact that we relentlessly believe that law by itself is insufficient to modify human behavior, and that other factors should be combined in concerted effort to put such behavior on the right track, all the attempts to confront domestic violence and changing the social trend toward this phenomenon cannot bear fruits unless they were accompanied with a restructuring of the law and its philosophy in this regard. Hence, if the law by nature is nothing but an expression of the prevailing socio-cultural environment, it can meanwhile play a decisive role in introducing changes to this structure: shifting the standpoint toward violent action committed inside the household into an incriminated act would gradually lead to despite and renunciation of the act at the social level instead of tolerating and fostering the act within the socio-cultural system.

Tolerating, justifying, and condoning domestic violence has not stopped at the level of legal denial of incriminating the act, but was also coupled with the standpoint of state institutions and an unsympathetic, indifferent and unsupportive –if not hostile- society toward women victims of violence. Police stations often take a biased attitude against women if they ever attempted to file a complaint regarding the incident of violence. Doctors in hospitals commonly tend to mitigate the effects resulting from violence because – by virtue of their culture and pre-bias- they do not wish to take any measure that would destroy the household!!

Since 1993 to date, our society has witnessed several campaigns against violence, which targeted to support and protect women victims of violence. Such campaigns have developed to such and extent that it became necessary to shift to a more positive step in this regard to strike a change in the existing formula regulating the relationship between women and society and to provide a more fair legal base that is more commensurate with the fundamental principles and criteria of human rights, and also more compatible with the equal rights and duties provided for in the Egyptian Constitution to all citizens within society irrespective of gender. In such a way, women can recuperate their self confidence as full citizens fulfilling their duties and acquiring their full inalienable rights.

What does this law target?

This law aims at limiting the phenomenon of violence against women within the household so that the family can be a safe environment ensuring a dignified life and growth to its members. This target can be achieved through the following:

Considering violence against women within the household a crime punishable by law, with all the effects resulting from this consideration
Providing optimum legal protection to women victims of domestic violence in all its forms, whether physical, psychological or sexual.
Enacting the necessary measures to develop the role played by relevant state institutions in cases of domestic violence.
Putting forth preventive measures in line with comprehensive services, including immediate services to victims of violence an abuse, support programs to fulfill the special needs of victims including advisory, therapeutic, educational, or awareness-raising to victims and assailants as well.
Organizing also assistance programs ensuring the contribution in raising awareness within society of the hazards and damages of violence against women.
Assigning advisors and experts to assist law enforcing officers and judges in dealing with victims adequately and in helping them rehabilitate and train assailants to avoid the recurrence of such behavior
Opening the door for supporting social institutions and enable them to play their positive role in supporting women victims of violence.

Enacting a law which incriminates violence against women within the household in such a way that it would provide for preventive measures, then penalties would introduce reforms and developments within the required social change and would offer effective and suitable solutions and remedies protecting victims, entrenches justice, achieves serenity to individuals, households and society, and in the meantime gives the person responsible for the violent act a better opportunity to rectify his behavior. It would also contribute in rebuilding family relations on solid grounds, and would provide a preventive and remedial framework for the problematic of violence against women and also an effective deterrent to perpetrators.

The draft law has been formulated in four chapters in addition to the enactment clauses

Chapter One

Includes general provisions, and definitions relevant to the law.

Chapter Two

Deals with provisions related to reporting and the due procedures that should be followed in this respect.

The right to report the crime of domestic violence is not restricted to women victims or those affected only, but the draft law acknowledges this right to anyone who knows or has any information about the offence, whether related through kinship, or partnership or neighborhood in the habitat with the victim, and also to centers offering medical and psychological assistance, support organizations for victims of domestic violence.

The draft law aims at the following targets:

Reaching the end it was enacted to fulfill, namely, to limit crimes of domestic violence
Observing the special nature of crimes of domestic violence, when the victim is often unable to report them for reasons related to involuntary confinement within the household, or incapable to evade the supervision of the aggressor, or due to the difficulty of leaving the conjugal household.
Providing an opportunity to institutions and organizations supporting women victims of violence within society to positively interfere and assist the victims in obtaining the protection ensured by the draft law.

In line with this trend, the draft law makes it imperative on the committee concerned, upon receiving a report of a crime of domestic violence from any other party than the victim to move to the scene of the crime to hear the statements of the victim and immediately respond to the request for protection.

Furthermore, the draft law specifies data that should be included in the report of the crime of domestic violence, the procedures that the committee should enact to ensure the provision of the necessary protection to the victim and her children, either by ousting the assailant from the conjugal household or the shared house, or by moving the victim to one of the lodging centers dedicated to this purpose. In any and all cases, the committee should explain to the victim, in a language that she can understand, the legal measures available which she can undertake to seek protection.

Chapter Three:

Is dedicated to the precautionary or preventive measures that should be enacted to protect women affected by domestic violence and also the services that should be provided to women victims of violence, and the required rehabilitation services for assailants (heads of families). Such services include habilitation of the spouses before marriage, and of perpetrators of domestic violence after marriage, as well as training staff of family offices and law-enforcement officers.

Chapter Four:

Focuses on the penalty of the crime of domestic violence.

The penalty observed, in the cases where the Penal Code is not applicable, that the verdict refers the person accused of a crime of domestic violence to a rehabilitation center where he would be subjected to habilitation and training programs for one week to two weeks. In case the same act is repeated, the accused shall be punished with community service. The Court of Law shall decide the time frame, place, and type of the service, in accordance with the level and degree of the crime and the qualifications of the perpetrator. The judgment shall be mandatory and it shall be executed in accordance with provisions of the Code of Criminal Procedures.

The penalty provided for in the Penal Code shall be aggravated in crimes related to domestic violence in refractory cases where the assailant repeats the act for the third time, breaches the protection order, commits serious offence and injury, or if the victim is disabled, elderly, or a minor.

The draft law aimed to give an opportunity to the person having committed the crime to evade detention in case the criminal intention was not available or goodwill and good intentions were proven beyond doubt. However, if he commits the crime for a second time, this proves his persistence to practice domestic violence in a manner that justifies to the judiciary to punish him with the second degree of penalties provided for in this law or in the Penal Code.

DRAFT LAW FOR THE PROTECTION OF WOMEN AGAINST DOMESTIC VIOLENCE

Having reviewed the Constitution of the Arab Republic of Egypt,

The Egyptian Penal Code,

The Code of Criminal Procedure,

The Personal Status Code,

The Law of the Family Court,

International conventions and instruments Egypt had signed,

And the State Council opinion,

The People’s Assembly approved the following law and it was hereby enacted:

Enactment Clauses

Article 1

Provisions of this law shall be applicable to crimes of domestic violence according to the general definition of Article (6) hereinafter and the detailed definitions listed in the executive regulations of this law.

Article 2

Provisions of this law shall be applicable where no provision exists in the Code of Criminal Procedure.

Article 3

All the competent authorities shall implement provisions of this law each in its own domain.

Article 4

All provisions in law contravening provisions of the present law shall be repealed

Article 5

This law shall be published in the official gazette and shall enter into force one month from the date of publication.

Chapter One:

Article 6 Definitions

Definition of the Crime of Violence Against Women within the Household

Crimes of domestic violence against women include any sexually based violent act resulting or can potentially result in harm, injury, physical, psychological or sexual suffering of women, including threats to commit such an act, or coercion, or involuntary deprivation of freedom by a member of the household using his power or custody, or relationship with the victim.

The administrative authority: the Ministry of Social Solidarity
Department of protection of women against violence: a special department set up by virtue of a ministerial decree within the Ministry of Social Solidarity
Competent committee: “Committee receiving reports” is a committee set up after agreement with the Ministry of Social Solidarity and the Interior Ministry to receive reports of violence against women within the household. Half of this committee’s membership at least shall be from women
Competent prosecution: family prosecution
Competent Court: the Family Court
Family offices: offices established by virtue of a decree from the Minister of Social Solidarity in partnership with relevant civil society institutions. Their task would be to organize pre-marriage courses, review problems of violence within the household, provide psychological, social and legal guidance to members of the household, and also set up special units for psychological rehabilitation of victims and assailants.
Household: refers to the family household, or the residence of the assailant accused of the crime of violence
Safe house: houses hosting women victims of violence, established as per a decree of the Ministry of Social Solidarity. Training of staff working in these houses will be in partnership with relevant civil society institutions concerned with violence against women.

Chapter Two:

Reporting Mechanisms and Dealing with Reports

Article 7

The victim or any other witnesses of the crime of domestic violence especially members of the household or partners sharing the habitat or any other person having been notified of the crime, particularly providers of medical services, centers offering assistance to victims of domestic violence, whether governmental or non-governmental, shall be entitled to report to the competent committee receiving reports within the relevant geographic scope.

Article 8

The competent committee or any of its members, should immediately respond to reports of crimes of domestic violence, move to the crime location, particularly if the person reporting the incident is not the victim, to enable her to make her statements. In all cases, the following measures should be enacted:

The victim should be notified with her rights guaranteed by the law
Parties and witnesses should be heard, and children should make their statements freely and safely
The report should be registered in detail
A proces- verbal of domestic violence should be reported and processed according to the law
Necessary procedures should be taken to transfer the victim to the nearest hospital or health center for treatment when necessary
Necessary measures should be enacted to remove the accused from the house if it was proved that his presence represents a threat to the victim until the protection order is issued
Necessary procedures should be taken to protect the victim and the children by moving them to a safe place or to any of the houses, especially if the crime occurred at night or after official working hours or on official holidays, until the provisional protection order is issued, in case the assailant could not be removed from the house.
Protection should be provided to the person reporting domestic violence, including non-disclosure of his name, or identity, unless otherwise required by judiciary procedures.

Article 9

The victim of any crime of violence against women shall be entitled to file a request to issue a precautionary order of protection from the Family Prosecution. The committee receiving reports should file a request for protection order. The decision shall be issued within 24 hours after the request is presented.

Article 10

The protection order shall include the procedure of procedures preventing the assailant from causing further damage to the victim or any other person(s) he is sustaining or caring for. Such procedures include:

Oblige the defendant to leave the house without the Court deciding on the eligibility of either of the two parties to the habitat or the movable property.
Prohibit the defendant from contacting the victim either at home, in the place of work or the safe house
The defendant should declare that he shall not interfere with the victim or the reporter.
No damages shall be incurred upon the personal belongings of the affected person. She or any person acting on her behalf shall be entitled to have access to the family house accompanied by an assigned officer, and obtain her personal possessions, as per a receipt form signed by the recipient.
The prosecution may refer the accused in a crime of violence to any family consultancy office, provided both parties agree to this procedures and that such would not contravene precautionary protection measures.

Article 11

If the family prosecution decides that the criminal proceedings are to no avail regarding an inquiry the prosecution is reviewing, it shall be imperative to explain the specific reasons for such in the verdict. The victim shall be entitled to appeal the decision before the Family Court in the thirty days that follow the issuance of the decision.

Chapter Three

Precautionary Measures

Article 12

The administrative authority shall provide the following services:

Competent authorities shall add a number of stipulations representing a protection of the fundamental rights of women in the marriage contract. The spouse shall be entitled to waiver this right or add any other conditions upon signing the contract, such as her right to divorce herself whenever, wherever and however she wishes, her right to travel and move, her right to education, work, her right that her partner should not marry another without a written approval from her to this effect.

The administrative authority shall, in cooperation with civil society organizations, the National Council for Women, and the National Council for Motherhood and Childhood, establish family offices in every geographic zone qualified to address cases of violence, including social workers, doctors (GP’s) psychiatrists and lawyers. Their medical and legal reports shall be acknowledged as issued by advisory offices in the following:

Both spouses should have training courses in these centers for one week, including:

How to treat the wife and children within the bounds of family relations
How to deal with family problems
Marriage should not be completed unless both spouses obtain a certificate of attendance of this course
In case of marriage, both spouses can resort to this committee as an advisory authority to settle disputes or for advice regarding conjugal disputes
Victimized women can resort to these offices when they experience domestic violence to seek medical, psychological or legal advice. They are also entitled to request a medical report of their physical or psychological injury.

Article 13

The administrative authority shall provide the following services:

Establish a sufficient number of safe houses to host women victims of violence, at a suitable level and observing the geographic distribution
Lodge children up to fifteen years of age with their mothers in houses or provide a safe place for them within the same area if they reach full legal age
Provide urgent services to victims, including medical and psychological care, transportation, shelter, treatment, food, and legal advice.
Provide information on agencies offering services and the means to obtain such services for a longer period whenever needed.
Different agencies and authorities are committed to confidentiality rules regarding all communication, mails, and procedures related to domestic violence against the victim and her family.
The administrative authority and family offices affiliated with the Family Courts shall prepare an annual report including but not limited to the following:

The number of reports received- the number of proces-verbal of victims from both sexes (adults and children) – the number of reports being investigated- the average time necessary for the competent authority to respond to reports- the type of measures enacted by the police to address the report, including the number of persons being arrested, the number of files being referred to courts – geographic distribution of domestic violence – the age of victims and assailants- the reasons for violence in each crime – the type and forms of violence.

Article 14

The administrative authority shall establish special units for guiding services within family offices, assigned particularly with the following tasks:

guidance and training services and assistance in finding employment opportunities for women victims of violence to acquire an income that enables them to rely on themselves
rehabilitation of victims and defendants in crimes of domestic violence and assisting them in bearing their social responsibilities
thematic social service programs suitable for victims of domestic violence.

Article 15

The Interior Ministry shall cooperate with the administrative authority by setting up a special office within each police station for crimes of domestic violence, including two commissioners, one of them from the women police force, a psychologist, a social worker and a secretary.

Article 16

The Ministry of Social Solidarity and the Ministry of Justice in partnership with civil society organizations shall prepare suitable training programs for workers and specialists on human rights and rules relevant to crimes of domestic violence, including in particular:

Rights in the Egyptian law and international conventions
The nature, manifestations, and reasons of domestic violence and its repercussion on children
Legal rights of victims of domestic violence and available means of seeking justice
Services and utilities available to victims
Duties and responsibilities of competent committees, according to the laws, regarding response to reports, procedures, providing protection and assistance to victims of domestic violence.
Methods of dealing with and treatment of incidents of domestic violence so as to enhance the safety and integrity of members of the family.
The philosophy of punitive policy in the domain of domestic violence, particularly (orders of community service as a novel substitute penalty and giving advice to defendants).

Chapter Four

Penalties

Article 17

the defendant shall be punished, irrespective of his situation within the household:

in cases where the Penal Code is not applicable, nor the Code of Criminal Procedure, and after seeking the opinion of family offices, the verdict shall be to refer the accused of a crime of domestic violence to a rehabilitation center and subject him to habilitation and training programs for a period not exceeding one month and not less than one week.
If the defendant repeats the same act, he shall be punished by a community service order in accordance with his qualifications and specialization to work in any of the orphanages, elderly care houses, or a house for persons with special needs. The Court of Law shall decide the period of the service. The judgment shall be mandatory and execution thereof shall be subject to provisions of the Code of Criminal Procedures
In case the defendant repeats the crime of domestic violence for a third time, he shall be punished according to articles of the Penal Code. The penalty shall be aggravated in case the victim is a minor, handicapped or elderly. If the penalty is a fine, the value shall be transferred in full to the victim of violence
In all cases provided for in the previous clauses, the sentence should include the separation of the defendant from the victim during the period of execution of the penalty, or the provision of protection for her in any of the means prescribed in the present law and the executive regulations thereto, whenever she so requests.

Article 18

If the victim did not file a request for a provisional order of protection, or this order was not issued in her favor, she may request it from the Court in an expeditious way during the review of the proceedings.

Article 19

If the victim waives the civil lawsuit in the crime of domestic violence, the court may order the suspension of the execution of the penalty while ordering the enactment of measures ensuring protection for the victim.

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