Module 4: Access to justice

1. Barriers for victims of domestic violence
2. Investigation
3. Pre-trial
4. Trial
5. Civil lawsuits
6. Mediation


Welcome to Module 4 on “Access to justice”. This module addresses the challenges faced by victims of domestic violence in seeking justice. From the initial barriers to complex legal proceedings, this module explores the critical aspects that are important for victims’ access to justice. Additionally, Module 4 delves into investigations, pre-trial preparations, trial proceedings, civil lawsuits, and the role of mediation as an alternative dispute resolution.

Learning objectives
+ Identify personal, social, cultural, societal, and legal barriers for victims
+ Raise awareness of the responsibilities of legal professionals
+ Improve standards of investigation, evidence gathering, protection and prosecution
+ Facilitate victims’ access to justice

Of note, the learning materials are not tailored to the needs of every country; they include generic cases that will need local adaptation.

Domestic violence does not always end when the victim escapes, tries to terminate the relationship, and/or seeks help. Often, the violence intensifies because the perpetrator feels a loss of control over the victim. In fact, leaving the perpetrator is the most dangerous time for a victim of domestic violence. The victim’s reasons for staying with their perpetrators are complex and, in most cases, based on the reality that the perpetrator will follow through with threats. The victim may not be able to safely escape or protect those they love.1

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The same mechanisms of power and control that contribute to the perpetuation of domestic violence hinder victims from seeking justice. Fear of reprisals from the perpetrator, including threats to drop charges or only accept unfair settlements, can be barriers for victims to seeking justice. Perpetrators may further manipulate victims by accusing them of making false allegations or using emotional blackmail. One in four victims of domestic violence do not report serious incidents mainly due to fear, anger, and shame.2 Find more information on the dynamics of domestic violence in Module 1.

Leslie Morgan Steiner explains in the following video why victims of domestic violence do not leave and corrects common misconceptions about domestic violence:

The following personal, social and cultural, societal, and legal barriers can affect access to justice at all stages3:

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Vulnerable groups and multiple discrimination

Victims of domestic violence come from a wide range of backgrounds and face various barriers to justice. They often have no trust in the justice system, fearing mistreatment or dismissive attitudes, resulting in discrimination, secondary victimisation, or inadequate legal counsel from law enforcement and legal professionals.

Vulnerable groups refer to persons belonging, or perceived to belong, to groups that are in a disadvantaged position or marginalised.4 Find more information on the diverse spectrum of victim groups in Module 1.

Multiple discrimination is any combination of forms of discrimination against persons on the grounds of sex, racial or ethnic origin, religion or belief, disability, age, sexual orientation, gender identity or other characteristics. This discrimination can be suffered by those who have, or who are perceived to have, those characteristics.5 Intersectional discrimination takes place on the basis of several personal grounds or characteristics/identities, which operate and interact with each other at the same time in such a way as to be inseparable.6

The following video illustrates negative social associations with gender:

Sex refers to biological characteristics. Gender refers to societal roles, behaviours, and attributes considered appropriate for men and women in society. Find more information on gender in Module 1.

Racial stereotypes can diminish individuals’ self-image and value, making it even harder for victims of domestic violence to seek help and support. The following video recreates a famous experiment designed in the 1940s in the USA on prejudice, discrimination, and racial segregation:

Attitudes, beliefs, and behavioural patterns play an important role when working with victims of domestic violence. Victim-blaming attitudes, based on stereotypes and unconscious bias, marginalise the victim and make it harder to come forward and report the violence.

Victim-blaming and discriminatory attitudes from legal professionals significantly impact reporting, prosecution, and sentencing in cases of domestic violence. Studies have shown that such attitudes can lead to a lack of empathy towards victims, causing them to be disbelieved or even blamed for the violence they have experienced.7 This can result in delayed reporting and a lack of trust in the justice system. Moreover, victim-blaming attitudes can lead to secondary victimisation, where victims feel re-traumatised by the response they receive when seeking help. In legal proceedings, victim-blaming can also manifest as leniency towards offenders, as they are perceived as less culpable for their actions. Stereotyping further complicates the handling of domestic violence cases, as assumptions about the victim’s behaviour or motives can lead to biased decision-making.

To address these issues and improve the handling of cases of domestic violence, it is crucial for legal professionals to receive comprehensive training on topics such as victim-blaming and stereotyping.

Practical guidelines for legal professional to prevent victim-blaming
  • 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.

Find more information on stereotypes and unconscious bias in Module 8.

Secondary victimisation occurs when the victim suffers further harm not as a direct result of the criminal act but due to the manner in which institutions and other individuals deal with the victim. It may be caused, for example, by repeated exposure of the victim to the perpetrator, repeated interrogation about the same facts, the use of inappropriate language or insensitive comments made by all those who come into contact with victims.8

To prevent secondary victimisation, legal professionals must adopt a sensitive and empathetic approach. How legal professionals conduct interviews during judicial proceedings greatly affects the victim’s willingness to cooperate. Testifying in court can be particularly distressing and intimidating for victims of domestic violence due to the intimate nature of the violence. They may feel a lack of control, shame, fear of the perpetrator, and intimidation by the court, and be unwilling to repeatedly recall traumatic events. If the victim feels safe, heard, and believed, they are more likely to provide necessary information for the case.

Practical guidelines for legal professionals to prevent secondary victimisation
  • 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.

Watch the following video to learn more about gender-based violence, victim-blaming and secondary victimisation:

Investigations in cases of domestic violence require a sensitive and informed approach to address the complex dynamics of power and control that characterise domestic violence. They include an immediate response, conducting interviews, and assessing the overall risk to the victim and their children. Find further details on police intervention in cases of domestic violence in Module 4 for the police.

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Investigations need to be carried out without undue delay and in an effective manner, in accordance with the principles set forth in the Istanbul Convention. This means, for example, establishing the relevant facts, interviewing all available witnesses and conducting forensic examinations based on criminal investigative methods. Any measures taken should not compromise the rights of defence or the standards of a fair trial. Find more information about the Istanbul Convention in Module 6.

An immediate response includes:

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In cases of domestic violence, statements from the victim and witnesses are often the most important pieces of evidence. Victims are usually more willing to make statements immediately after an incident rather than after a few days. The victim’s statement is also important for immediate risk assessment and safety planning. Therefore, whenever possible, efforts should be made to interview the victim immediately after the incident.

How to conduct an interview
  • 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.
Types of questions

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
Interviewing children

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

The pre-trial period represents an increased risk for victims, especially if perpetrators are not in custody or supervised before the trial. Victims may face retaliation and intimidation. Therefore, it is important to assess and manage the safety risks in each case, according to standardised procedures and in co-operation with other agencies.

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During this pre-trial stage, different stakeholders play crucial roles in ensuring the safety and support of the victim. Law enforcement agencies should provide protection and monitor the perpetrator’s movements to prevent any threats or acts of retaliation. Prosecutors should prioritise victim safety when negotiating bail conditions or requesting protective orders. Victim support services and shelters should be available to provide immediate assistance and safe accommodations if needed. Additionally, legal aid organisations can help victims navigate the legal process and advocate for their rights in court. Health professionals should be involved in assessing and documenting the physical and psychological impact of domestic violence on the victim.

Legal options to provide safety for victims may include bail conditions, emergency barring orders, restraining orders, or protection orders. These measures are important not only during the pre-trial phase but should also be reevaluated throughout the trial process in response to changing circumstances:

  • Consider pre-trial detention
  • Removal from residence
  • Maintaining distance from the victim
  • Prohibiting contact with the victim
  • Restricting or suspending child visits

Evidence gathering is primarily the responsibility of law enforcement. However, prosecutors may also need to provide guidance on necessary evidence, procedures to obtain admissible evidence, and assess whether there is sufficient proof to charge the perpetrator.

Spontaneous comments

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 victim’s injuries

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.

Psychological evidence

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.

Medical evidence

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.

Witnesses are not just limited to eye-witnesses. Many others may have valuable information relevant to the case, for example:

  • Neighbours who overheard discussions or fights.
  • Friends who were confided in about the incident.
  • Teachers who were informed about what happened.

The police should actively make inquiries into individuals the victim may have confided in. By broadening the scope beyond the victim’s testimony and considering all potential witnesses, investigations can uncover more evidence to prove what happened. Find further details on outsiders as witnesses of domestic violence in Module 2.

Victims who feel that they are supported and treated in a respectful manner are more likely to continue co-operation with the justice authorities. Preparing the victim for the trial is important in order to avoid the victim’s reluctance to testify.

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Keeping the victim well informed of proceedings, their progress and potential outcome and explaining the role of the victim can help minimise the risk that the victim will decide not to prosecute or to support the prosecution. In some cases, victims may still choose to withdraw their support for the prosecution.

If a victim chooses to withdraw their support, prosecutors should refrain from criticising or blaming the victim. Even if this may pose challenges to the prosecution, prosecution can still proceed, at least with regard to serious offences.

Meetings with victims

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.

The prosecutor must decide on several critical actions: whether to charge the perpetrator, consider alternative dispute resolution or mediation, or drop the charges altogether. In cases of domestic violence, delaying action could lead to further, potentially more severe acts of violence in the near future. Choosing to drop charges might signal to the perpetrator that their behaviour is all right.

When deciding whether to prosecute a case, prosecutors need to assess whether there is sufficient evidence, whether a conviction is likely and if there is a public interest in pursuing the matter.

Sufficient evidence

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.

Likelihood of conviction

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.

Public interest

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.

The culmination of the previous steps is the presentation of the charges. Poorly investigated cases leading to inappropriate charges can hinder adequate sentencing and erode victim’s trust in the justice system.

Prosecutors should ensure that the charges:

  • Reflect the seriousness of the offence
  • Provide adequate sentencing and post-conviction measures
  • Present the case clearly
  • Reflect the impact on the victim
Support from social services

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.

At all stages of investigations and judicial proceedings, protective measures should be put at place to ease the experience of the trial for victims and facilitate their testimony. In this way, judicial proceedings can potentially contribute to the healing and empowerment of the victims, instead of further traumatising them.


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

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.

Both victim and defendant have the right to a trial without undue delay.


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.

Limitation periods

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 play a crucial role in the justice system’s response to domestic violence as they are generally the final authority in both civil and criminal matters. Their decisions have impact on the victim, the perpetrator as well as their children. They can establish courtroom policies and procedures to create a safe environment for victims and improve their access to courts by:

  • Understanding the dynamics of domestic violence, the risks faced by victims and their children, and patterns of violence
  • Treating victims with courtesy, compassion, dignity and sensitivity, even if they are not present
  • Considering victim and child safety at all levels and at all times
  • Taking advantage of all available resources that offer safety and support to victims
  • Taking into account victim’s needs and specific circumstances of each case
  • Taking time to explain the proceedings, in particular the different stages of the process, in a language the victim can understand

Judicial discretion is important in cases of domestic violence due to the complex dynamics of violence, which laws alone cannot address. However, judicial decisions are influenced by judges’ beliefs and perceptions of domestic violence. Misconceptions can undermine the victim’s safety and the perpetrator’s accountability. Judicial stereotyping, where decisions are based on beliefs rather than factual evidence, can severely impact the access to justice for victims.

Judicial neutrality and impartiality are fundamental to a fair trial and access to justice. While complete neutrality is impossible, judges must strive to maintain a distance from their own beliefs and opinions, focusing on the facts and the case file. Examining their own personal beliefs can help judges develop neutrality and impartiality.

The primary goal of sentencing is to stop the violence, protect the victim, hold the perpetrator accountable for their actions and to serve as a general deterrent.

The following requirements for sentencing should be taken into account:

  • Information: Do you have all the information needed to sentence appropriately?
  • Risk-assessment: Have you considered the perpetrator’s dangerousness?
  • Victim’s testimony: Have you heard the victim at the time of sentencing?
  • Other factors: Have you considered factors such as the nature and gravity of the offence, the history of violence, previous efforts at rehabilitation, the defendant’s character and current rehabilitative needs and the interests of the community in protection and punishment?

Offences should be punishable by effective, proportionate, and dissuasive sanctions, taking into account their seriousness. These may include sentences involving deprivation of liberty, potentially leading to extradition. Other measures, such as monitoring or supervising convicted persons and withdrawing parental rights (considering the child’s best interest), may be adopted. Ensuring contact with the abusive parent may not only have a negative impact on the child, but may also pose a serious risk to the safety of the victim, because it often gives the perpetrator a reason to contact or see the victim and may not be in line with a restraining or barring order in place. As part of sentencing, perpetrators could be mandated to attend perpetrator intervention programmes, aiming to address their behaviour and potential for rehabilitation, particularly concerning their rights to contact children. Such programmes may be crucial in determining whether and under what conditions contact with children is safe and appropriate, aligning with protective measures for the victim and children’s well-being.

Aggravating factors

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:

  • Repetition of offences
  • Abuse of authority
  • Offence commited by two or more people acting togehter
  • Offence commited with the use or threat of a weapon
  • Offence preceded or accompanied by extreme levels of violence
  • Perpetrator has previous convictions of a similar nature
  • Offence committed against a person made vulnerable by particular circumstances
  • Offence committed against or in the presence of a child
  • Offence resulted in severe physical or psychological harm for the victim
Mitigating factors

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.

Civil remedies ensure that victims can seek adequate civil law remedy against perpetrators. This includes court-ordered injunctions to stop or prevent certain behaviours or to compel specific actions. National legislation may also provide more specific remedies like barring orders, restraining orders, and non-molestation orders, particularly relevant in cases of domestic violence. These complement the immediate and often short-term protection of emergency protection orders.

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Restraining orders

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

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.

In family court, decisions hinge on credibility, especially in cases of domestic violence. Therefore, it is important to understand the underlying dynamics and to recognise the risks of decisions for victims of domestic violence.

Victims of domestic violence often suffer severe psychological distress, which can unfairly influence custody decisions in favour of the abusive partner, who may appear more stable to care for the children. This situation can arise despite the children witnessing the abusive behaviour. Judges should be aware of these dynamics and the potential for perpetrators to manipulate perceptions of competency.

Additionally, perpetrators frequently claim of parental alienation, alleging that the victim is intentionally alienating the children. These tactics are commonly used in family court proceedings. Judges must be vigilant about perpetrator gaslighting tactics, which continue even within legal settings. Granting perpetrators access and control over the children often means maintaining control over the victim. Therefore, legal processes must prioritise restoring control to victims over their life.

Domestic violence often starts or escalates during separations or divorces. Judges should therefore screen family law cases affected by domestic violence to prevent further harm to the victim. In such situations offering the victim legal aid, prioritising and expediting the case should be considered.

Domestic violence is an important factor when determining custody of the children and visitation rights by the court. If incidents of domestic violence are not considered by the judicial authorities when determining custody of children or visitation rights, the victim and the children can be placed in further risk allowing the perpetrator to gain access to the victim and the children and continue their violent behaviour.

Children in cases of domestic violence often represent the only ongoing connection between the victim and perpetrator. For many victims and their children, complying with visitation orders poses serious safety concerns. In such cases, the court should mandate supervised visits with the perpetrator, typically facilitated by social services or another third party.

Case study: Domestic violence and custody rights

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.

Tasks for reflection

(1) What measures can the court take to ensure the safety of Sophia and Ethan during any potential visitations with Michael?

(2) What types of evidence and testimony should Sophia present in court to support her opposition to Michael’s petition for visitation?

(3) In what ways can the court assess Ethan’s well-being and safety in deciding on visitation rights, especially considering his age and potential psychological impact from witnessing domestic violence?

(4) What legal principles or guidelines should the court follow when determining visitation rights in cases of domestic violence?

(5) How can Sophia’s concerns about ongoing safety for herself and Ethan be addressed and considered by the court during the legal proceedings?

(6) What support services and resources can be offered to Sophia and Ethan to help them cope with the emotional and psychological effects of domestic violence and the ongoing legal process?


(1) The court should prioritise the safety and well-being of Sophia and Ethan. Given Michael’s history of violence, supervised visitation in a controlled environment should be considered to ensure their protection.

(2) Sophia should present the police reports documenting incidents of violence, medical records if any injuries occurred, and any testimonies from witnesses who have observed the violence.

(3) The court could appoint a child psychologist to assess Ethan’s emotional and psychological state, considering his age and the potential trauma from exposure to domestic violence.

(4) Visitation rights should be granted cautiously in cases of domestic violence, with the primary concern being the safety of the child. The court should prioritise protection from harm over parental access in such situations.

(5) Sophia’s concerns about ongoing safety for herself and Ethan should be taken seriously by the court. The judge should provide opportunities for Sophia to express her fears and present evidence supporting her concerns.

(6) Support services such as counselling for trauma, legal advocacy, and access to shelters should be offered to Sophia and Ethan to help them cope with the emotional and psychological effects of domestic violence and navigate the complexities of the legal process.

Compensation rights for victims, in both criminal and civil proceedings, aim to address physical and psychological injuries as well as other emotional impacts like fear, suffering, and stress. Courts must assess these damages with medical evidence in mind.

Primary liability for compensation rests with the perpetrator, but victims may also seek compensation from insurance companies or state-funded schemes. In cases where offenders are unable to pay or are unknown, state obligations may apply under internal laws to ensure victims are compensated.

Victim-offender mediation in criminal law is available in some jurisdictions to allow victim and offender to discuss the crime in a structured and mediated way. The aim is for the offender to take responsibility for their actions and for the victim to reach closure. Supporters of mediation in family matters argue that such methods help preserve important family relationships and reduce the traumatic impact of a family break-up on children.

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However, mediation poses risks, especially in cases of domestic violence:

  • Mediation may lead to the belief that domestic violence is a private matter.
  • The victim’s consent may be coerced due to threats or fear of court testimony.
  • There may be serious risks for the victim’s safety.
  • The perpetrator may use mediation to further intimidate the victim.
  • The victim may agree to unfavourable settlements on critical matters like divorce, custody, and property.

A thorough risk assessment must be carried out before voluntary mediation can be considered.

  1. A Woman’s Place. 2020. Barriers to Leaving. ↩︎
  2. European Union Agency for Fundamental Rights (FRA). 2014. Violence against women: an EU-wide survey. Main results report. ↩︎
  3. A Woman’s Place. 2020. Barriers to Leaving. ↩︎
  4. European Institute for Gender Equality (EIGE). 2016. Vulnerable groups. ↩︎
  5. European Institute for Gender Equality (EIGE). 2016. Multiple discrimination. ↩︎
  6. European Institute for Gender Equality (EIGE). 2016. Intersectional discrimination. ↩︎
  7. Khan, A. S., Bashir, S. & Khan, F. S. 2023. Domestic Violence: The Psychological and Legal Factors That Affect Reporting, Prosecution, and Sentencing. Sir Syed Journal of Education & Social Research (SJESR) 6(1):139-146. ↩︎
  8. European Institute for Gender Equality (EIGE). 2016. Secondary victimisation. ↩︎
  9. Council of Europe (CoE). 2017. Human Rights Education for Legal Professionals (HELP). Violence Against Women and Domestic Violence. Criminal Justice Response I: Investigation and Pre-trial. ↩︎
  10. Council of Europe (CoE). 2017. Human Rights Education for Legal Professionals (HELP). Violence Against Women and Domestic Violence. Criminal Justice Response I: Investigation and Pre-trial. ↩︎
  11. Council of Europe (CoE). 2017. Human Rights Education for Legal Professionals (HELP). Violence Against Women and Domestic Violence. Criminal Justice Response II: Trial and Sentencing. ↩︎
  12. Council of Europe (CoE). 2017. Human Rights Education for Legal Professionals (HELP). Violence Against Women and Domestic Violence. Criminal Justice Response II: Trial and Sentencing. Civil Justice Response. ↩︎
  13. Council of Europe (CoE). 2017. Human Rights Education for Legal Professionals (HELP). Violence Against Women and Domestic Violence. Alternative Dispute Resolution. ↩︎