Module 4: Access to justice

• Actively listen to victims without judgment and validate their experiences. Avoid questioning their actions or behaviours in ways that may inadvertently blame the victim. For example, when a victim describes their experience, focus on understanding their perspective rather than blaming their decisions.
• Use neutral language in legal proceedings that does not perpetuate stereotypes. Instead of asking, “Why didn’t you leave?” ask open-ended questions that explore the complexities of the victim’s situation, such as, “Can you tell me more about the challenges you faced in seeking help?” Learn more about the communication with victims of domestic violence in Module 3.
• Participate in workshops and training sessions on understanding trauma-informed care and the impact of victim-blaming attitudes. These sessions should emphasise the importance of supporting victims and recognising the dynamics of power and control in abusive relationships.
• Recognise cultural differences and respect diverse backgrounds. Provide interpreters when needed and understand that cultural norms may influence how victims perceive and respond to violence. Being culturally sensitive helps in providing appropriate and respectful support to all victims.
• Collaborate with victim support services and advocacy organisations. This collaboration ensures that victims receive comprehensive support throughout the legal process, reducing the likelihood of secondary victimisation. Building strong networks with support services can help victims navigate through the legal system more effectively.

• Ensure that the victim does not have to face the perpetrator during legal proceedings. Use separate waiting areas and consider video testimonies to avoid direct contact.
• Provide a supportive and private setting for interviews and testimonies to help the victim feel safe and comfortable.
• Avoid repeated interrogation about the same facts. Coordinate with other professionals involved to ensure that information is gathered and shared appropriately.
• Prepare thoroughly before interviews to minimise the need for the victim to recount their traumatic experiences multiple times.
• Be mindful of the language used during interactions. Avoid any terminology that could be perceived as blaming or judgmental.
• Use empathetic and supportive language to help the victim feel understood and respected.
• Use plain and simple language to ensure that the victim can easily understand what is being communicated. Find more details on the communication with victims of domestic violence in Module 3.
• After explaining any legal procedures or giving instructions, ask the victim if they have understood and provide an opportunity for them to ask questions.
• Provide the victim with written instructions and guidelines, summarising important information discussed. This helps reinforce understanding and gives the victim a reference they can revisit.
• Confirm understanding by having the victim summarise what was discussed.
• Offer access to victim support services, such as counselling and legal advocacy, throughout the judicial process.
• Allow the victim to have a support person present during interviews and court proceedings.
• Understand the impact of trauma on memory and behaviour. Recognise that inconsistencies in the victim’s account may be a result of trauma, not dishonesty.
• Provide training for all legal professionals on trauma-informed practices and the psychological impact of domestic violence.
• Give the victim control over certain aspects of the process, such as choosing the gender of the interviewer or deciding when breaks are needed during testimony.
• Ensure that the victim is fully informed about the legal process and their rights, and involve them in decision-making whenever possible.
• Maintain professionalism and confidentiality at all times. Avoid making insensitive comments or displaying non-verbal cues that could be interpreted as disbelief or judgment.
• Show patience and understanding, recognising that the victim may be experiencing significant emotional distress.

• Ideally, the victim should be able to choose the gender of the interviewer.
• The victim should be able to be accompanied by someone, such as a support worker, for additional support.
• The interview should take place in a quiet room without any disruptive factors.
• If the language used is not the victim’s native language, an interpreter should be organised. The interviewer should inform the victim about their rights to have a translator and should be asked if they want to have a translator and whether they have preferences for the translator’s gender, dialect, and country of origin.
• The interviewer should act sensitively and empathetically throughout the interview.
• It is important to inform the victim of their rights and duties and to explain that it may be necessary to ask intimate questions and why this is important. The interviewer should explain that asking about details, such as what the victim said, did, or wore, does not mean blaming the victim for their experiences, but rather gathering as much information as possible.
• The interviewer should also help the victim rebut any self-reproach or self-doubt, avoid making value judgments, and refrain from using specialist terminology.
• Sufficient time should be allowed for the interview, with the interviewer listening carefully and using open-ended questions. The interviewer should take thorough notes when speaking to the victim, so they do not have to revisit the victim’s story multiple times.
• The interviewer should be prepared to handle emotional reactions from the victim, such as crying. It may be helpful to ask the victim if they need a break if they become upset during the interview. While investigators are often under time constraints, it is important to be sensitive to the emotional state of the victim and provide support as needed.
• It may require time and many meetings for a victim who is affected by trauma to disclose their history. The interviewer should explain to them that their legal case may depend on as much disclosure as possible. The victim should be offered a safe environment and opportunities to provide a full history.

The following information should be asked when interviewing the victim:

• The specific incident and events leading up to it
• Presence of children
• Presence of weapons
• Decription of previous physical and psychological violence and controlling behaviour
• Description of the perpetrator and the victim’s relationship to them
• Impact of violence on the victim, including physical and psychological injuries, financial impact, and strategies to cope with the violence
• Where you think a person is not telling you everything, try asking them what they are afraid of (sometimes it is not the most obvious thing)
• Ask about witnesses such as neighbours, as their testimony can strengthen the case for prosecution
• Inquire whether the victim is considering separation, as this factor is associated with high risk and can be a trigger for homicides

It is important to recognise that domestic violence has a severe impact on children. When assisting victims with children who have witnessed domestic violence or experienced domestic violence themselves, the children’s rights and their best interest need to be taken into account.

Interviews with children should involve interventions tailored to their age and development stage. These can include:

• Using free narrative and open-ended questions, along with specific or focused but non-leading questions
• Avoiding closed and explicit questions
• Employing empathetic communication, effective listening, and skilful questioning

During the initial response by law enforcement, all significant comments or reactions related to the incident should be noted and documented. These remarks can be used at trial, even if the victim refuses to make a statement, and can serve as corroborating evidence if the victim’s credibility is questioned. It is also important to record spontaneous comments made by other witnesses at the scene.

Photos of the victim’s injuries are documented in the police report. These photos can be used in court as evidence and contribute to a conviction, even if the victim does not testify, and can be used as corroboration, if the accused denies the offence and it is one word against another.

Victims of domestic violence can face repeated, intrusive questioning by the defence, leading to confusion and contradictions due to emotional stress or medical conditions such as depression and post-traumatic stress disorder (PTSD). These psychological conditions can serve as indicators of the intensity and lasting effects of domestic violence.

Expert evidence can clarify how trauma affects memory and delay in disclosure, and explain psychological injuries opposed to physical ones.

Collecting medical and forensic evidence, such as injuries and DNA analysis, is a duty of public authorities and may contribute towards a conviction even without the victim’s testimony. However, obtaining valid consent from the victim is required for medical examinations. Victims of sexual violence should be immediately offered examinations by specialised medical personnel, with explanations of the benefits to obtain informed consent. The immediate collection of medical evidence is crucial because traces can disappear within a short time, often within three days. Find more information on the medical assessment and securing of evidence in Module 4 for the health sector.

The absence of medical or physical evidence should not deter investigation or charges, nor should it undermine the victim’s credibility. Expert testimony on past physical and psychological injuries from prior acts of violence can also be beneficial and may strengthen the victim’s case and their credibility.

Standard procedures for prosecutors should include meetings with victims, with interpreters and support persons if needed. During these meetings, prosecutors can:

• Establish a relationship with the victim and reassure them that their rights and needs will be taken into consideration.
• Discuss possible special measures (e.g., screens, video testimony) for the trial and address any concerns that the victim may have about supporting the prosecution.
• Assess current risks to the victim and how prosecution may affect them.

Cases of domestic violence usually require the prosecutor to take a pro-active approach to evidence gathering. This includes collaborating with law enforcement to gather evidence during the investigative phase.

The likelihood of a conviction is an important consideration but should not outweigh other factors in cases of domestic violence. Prosecutors must diligently investigate and seek alternative sources of evidence when proceeding without the victim’s testimony. This may include corroborating witnesses, independent medical or photographic evidence, and evidence from the scene.

In determining whether to prosecute cases, prosecutors must weigh the public interest. Given the prevalence of domestic violence worldwide and its impact on victims, on the children involved, and society as a whole, there would usually be a strong public interest in prosecuting.

Factors influencing prosecutorial discretion include the seriousness of the offense, the defendant’s culpability (such as mental health issues or pre-meditation, and threats made to the victim), prior criminal history, circumstances surrounding the harm (including any history of violence, use of weapons, and the presence of children in the household), and whether the offender was a minor at the time of the offense.

Social services and victim organisations, including specialised domestic violence counsellors may assist and support victims during investigations and judicial proceedings. Their support is non-legal and focuses on preparing victims emotionally for court, accompanying them during proceedings, and offering practical assistance. Victims supported by such services are more likely to file complaints, testify, and contribute to the outcome of proceedings.

During judicial proceedings, judges play an important role in protecting the victim’s identity and confidentiality. They may prohibit the disclosure of the victim’s identity to third parties and ensure that confidential information is withheld from public records and media. Judges can also facilitate in camera proceedings, where parts or the entirety of the trial, such as the victim’s testimony, are conducted in private. Additionally, judges may allow breaks as needed to accommodate the well-being and needs of all parties involved in the proceedings.

During legal proceedings, various measures can be implemented to support and protect the victim. These can include allowing the victim to use a pseudonym to safeguard their identity, providing options for testifying without being physically present or behind a screen. Special protection measures should be extended to child victims/witnesses to ensure that proceedings align with their best interests. Legal aid and interpreters should be available to assist the victim in navigating the legal process. Additionally, social services, counsellors, and NGOs can offer support to empower the victim throughout the judicial process.

Lawyers should adhere to specific guidelines when questioning victims in legal proceedings. This includes, for example, prohibiting inquiries about sexual history and conduct unless strictly relevant and necessary for the case. It is important to avoid using victim-blaming or insensitive language during questioning and to limit the frequency, manner, and length of the interrogation process. Furthermore, lawyers should minimise the need for victims to repeatedly testify.

When addressing the role of perpetrators in legal proceedings, several protective measures can be implemented for victims. These include considering the use of intermediaries to facilitate witness examinations, measures to prevent the contact between the victim and perpetrator, such as providing separate waiting areas, escorts, and separate entrances and exits, and allowing witnesses to testify in the absence of the perpetrator, for example, with the aid of appropriate technologies like video evidence.

Expert witnesses can provide important information (e.g., on the dynamics of domestic violence, and victim behaviour) to the judge and assist them in evaluating the credibility of the testimony. Accurate information can reduce the risk of the judge forming biased opinions based on myths or misunderstandings, and lead to informed decisions.

Delays in conducting trials for cases of domestic violence may increase the risk of revenge against the victim, especially if the perpetrator is not in pre-trial custody. They can also increase the uncertainty and fear for the victim regarding the trial outcomes. An immediate response is important to protect victims and prevent further offences. However, victims should not feel forced through the trial process so rapidly that they do not feel they are being taken seriously and/or negative feelings are triggered leading to them withdrawing their complaint.

Consideration of limitation periods in cases of domestic violence is important, especially when victims delay reporting offences. Where time limits are close to expiring law enforcement agencies should act with particular expedition. In general, limitation periods should be adequate and proportional to the seriousness of the offence.

Judges should also consider aggravating factors when determining the penalty for an offence, in accordance with relevant national law provisions.

There are a number of situations which give rise to consider higher sentences for cases of domestic violence:

Alongside aggravating factors, special attention should be given to mitigating factors. In many legal systems, a confession is considered a mitigating factor in domestic violence cases. However, courts should carefully weigh the perpetrator’s remorse against the severity of the offence.

Rather than automatically considering expressed remorse as a mitigating factor, courts should consider the history of violence and whether the violence or threatening behaviours are ongoing. If the violence continues, remorse may be seen as a dishonest gesture by the perpetrator and not a valid mitigating factor.

Restraining orders are important legal measures to offer fast legal remedy to prevent further violence and protect victims. These measures, which serve the same purpose, may be known by various names such as restraining order, eviction order, protection order, or injunction.

Protection orders should be:

• Available for immediate protection and without undue financial or administrative burden placed on the victim
• Issued for a specified period or until modified or discharged
• Where necessary, issued on an ex parte basis which has immediate effect
• Available irrespective of, or in addition to, other legal proceedings
• Allowed to be introduced in subsequent legal proceedings

Barring orders can be an effective means to prevent further acts of violence and ensure the victim’s safety in situations of immediate danger. Authorities must consider the serious danger to the victim and the urgency of such orders, which often necessitate a decision without hearing both sides. This is justifiable as these decisions are typically temporary and further remedies can protect the alleged offender’s interests.

The consideration in favour or against a barring order must be determined by the different weighting of the opposing interests: What would happen if the decision against a barring order was wrong? And on the other side: What would happen if the decision in favour of a barring order was wrong?

Civil law injunctions include other measures to protect victims from violence. For example, a judge may prohibit access to weapons or drugs/alcohol, or in cases of forced marriage, require the alleged offender to surrender their passport.

Sophia has been a victim of domestic violence for several years at the hands of her husband, Michael. Michael has a history of violent behaviour, and there have been multiple police reports and a restraining order issued against him. Sophia and Michael have a 5-year-old son, Ethan. Recently, Sophia filed for divorce and full custody of Ethan, citing Michael’s violent behaviour as a major concern.

Michael is petitioning the family court for visitation rights with Ethan. Sophia is deeply worried about the potential risk to both herself and her son if Michael is granted visitation. The court must now decide whether Michael should be allowed to have contact with Ethan and under what conditions.