Tambet Laasik: State sanctioned violence
Sworn lawyer Tambet Laasik writes about domestic violence judicial practice in Estonia and concludes that the entire system is geared toward making victims accept their status and move on, instead of protecting them. The side of prevention, dealing with threats and protection of victims is virtually nonexistent.
A new campaign called "Meie aja kangelane" (Hero of Our Time, link in Estonian) the aim of which is to support victims of domestic violence and encourage them to turn to the police and to court was launched recently. I would be wholeheartedly in favor if only I was not acutely aware of what turning to the court really entails as a lawyer who represents both victims and attackers on a daily basis.
Civil procedure aimed at cooperation, not protecting the victim
To start, victims are told to keep violence to themselves as it is deemed an obstacle on the road to a compromise. The court emphasizes the need to achieve a compromise in the interests of the child for which it is best to forget the past. The slogan: "cooperation in the interests of the child."
Accusing the other side of violent behavior is immediately deemed uncooperative. Such accusations need to be proved and make it impossible for the court to solve the matter in rapid agreement process. Length of proceedings and number of compromises are used as judges' performance metrics as actual quality control of decisions is too complicated.
Despite the fact interactions disputes prioritize compromises that are imposed on the sides at every turn, judicial practice has not solved the question how a victim can continue cooperating with the other parent in the interests of the child in a situation where they are violent toward them.
Because another staple slogan suggests that "conflict always has two sides", the victim must also work on a solution and is accused of lack of will or ability to cooperate if they cannot.
How can a long-time victim of violence end a conflict in which their current or former partner physically assaults or rapes them? What act should the victim perform to put and end to the conflict? Suicide? We are still among countries with highest rates in terms of the latter in Europe.
To make the victim cooperate with the violent party, conciliation procedure is employed by either child protectors or the court. In it, the victim must regularly meet with their attacker following a court mandate with the aim of accepting and forgiving past violence and moving on "in the interests of the child" because one should "live in the moment and not the past."
The violent party can tell the victim and the conciliator how there is no violence and never has been. Sympathetic conciliators can say that accusations of violence without proof do not help the sides move closer to an agreement, while "it is necessary to cooperate in the interests of children."
Child protection or court mandated conciliation or therapy is often just a new form of violence in which the violent party can once again dominate their victim. While everything is just fine formally as cooperation and dialogue in the name of the children are taking place, one side is being revictimized in the process.
If the victim refuses to cooperate and end the conflict, in other words agree to a compromise, despite being urged to do so by child protectors and the court and the efforts of the conciliator, they are once again the problem.
The victim is told to leave the violent relationship (which is much harder than it seems), while they are pulled right back in ensuing child protection, conciliation and court proceedings and virtually made a hostage of the violent parent.
If the victim takes their child out of the violent relationship instead of leaving them with the violent party, they are sought out with a court order and sued following an interactions claim.
If the victim refuses to hand the child over to the violent party as per the court mandated interactions schedule, they are punished with yet another conciliation procedure, followed by enforcement procedure.
If the victim tries to escape the country with the child and start a new life free of violence, they are brought back, following the Hague Convention on the Civil Aspects of International Child Abduction. The victim cannot escape the violence even by killing themselves as that would leave the child in the care of the violent parent.
The other parent moves in next door and starts sending polite text messages from time to time, asking how the child is doing and when would it be possible to meet. The court is very pleased to see such affection and attention because "communicating with both parents is in the interests of the child."
The violent partner cannot be shaken even during proceedings. At best, it is possible to set limits to how they can invade the victim's life (now with a court mandate), but even that is better than nothing.
At worst, the victim is ordered to undergo various therapies and conciliation proceedings with the other side that can take years. There have even been calls for mandatory pretrial conciliation proceedings.
Luckily, it has been realized in the world at large just how dangerous this idea is, and our international obligations (the Istanbul Convention to be precise) prohibit it. Precisely in the interests of victims being left alone.
Our state does not issue from such principles. Instead, victims are criticized for daring to go to court to solve these abnormal situations, leaning on the much-quoted position that "disputes over children hurt the very children in question," despite the fact the only reason the victim embarks on the arduous and virtually hopeless road is to try and protect themselves and their children. And yet, criticism is aimed at them because they are the one not cooperating and burdening the courts with interactions claims.
Judges do not raise the sides' children and are not responsible for them. They listen to the children who are often just 6-7 years of age, sometimes younger. The children are questioned without it leaving behind any records. Conversations last 10-15 minutes, sometimes a little longer.
These conversations often end in a statement by the judge, according to which the child wants to communicate with both parents and does not consider the violent parent to be a threat. This is understandable as children love both their parents. That daddy sometimes likes to do bad things to mommy (or vice versa) is something the child doesn't know or can normalize, rationalize and eventually forget.
Head of victim support and prevention services at the Social Insurance Board Jako Salla says that children are "ideal victims so to speak as they usually also defend their violent parents." That is exactly what happens during proceedings. It would be naive to think that a child will open up their whole being to a stranger during a short meeting with them; however, that is exactly what proceedings rely on.
The result is that the victim of violence is now fighting not just the violent party, well-meaning child protection officials and the judge – all talking about conciliation and cooperation in the name of the children – but also their own child as they must break down the latter's desire to communicate with the violent parent. This is where the next slogan is employed: "a child needs both parents."
However, success is hardly possible as the fact they are brutalized from time to time does not automatically mean the other parent is a danger to the child in the eyes of the court in custody and interactions disputes.
The fact that the child usually chooses loyalty to the violent parent due to a traumatic connection and that violence against the other parent is an important indicator in forecasting future violence against the child are not common knowledge in proceedings.
Of course, the child needs both parents, when talking about normal parents. In cases where one parent is not, perhaps it is far more important we ensure their mental and physical health and age appropriate development free of violence. Perhaps that is what we should prioritize in court, instead of all-encompassing cooperation and reconciliation?
Cases where the victim decides to go to court culminate in court mandated interactions and fixed times for new meetings with their tormentors when handing over or taking charge of children and during conciliation sessions.
These meetings have now been sanctioned through the silent threat that if the victim fails to observe them, the child whose protection they sought will be taken away from them. The side that resorted to violence is not expected to consider that past or future violence might affect their position in terms of custody or interactions with the child.
Even if it is possible to prove violence, that too paints the victim in a poor light as, according to a widespread misconception, bad things do not happen to good people in a fair world, meaning they are to blame. Most lawyers still believe the victim is to blame for provoking violence through their behavior.
We can ask how we have arrived at such proceedings. Psychologists and psychiatrists grind their teeth, reading rulings or hearing about proceedings. Sympathetic volunteers roll their eyes when told that "violence against the other parent is not violence against the child" or how victims are forced to attend the same sessions or conciliation with their tormentors.
Psychologists know full well that witnessing an attack on a close person causes different mental problems in children, including anxiety disorders and depression and boosts the likelihood of them ending up as victims or resorting to violence in the future, not to mention risk behavior and suicides.
It is also widely known that experiencing and witnessing violence is one of the more important risk factors both in determining the well-being of the child, analyzing behavioral problems and determining custody.
This information does not reach proceedings. Instead of psychologists, custody and interactions proceedings require the presence of local government child protection officials few of whom have studied educational psychology.
This is why proceedings take place based not on psychology and psychiatry or the need to protect victims, but rather aforementioned empty and superficial slogans that shape the entire process.
The likelihood of attackers punished in criminal procedure nonexistent
Violent parties are not punished in civil proceedings as the nature of these proceedings rule it out. That is what criminal proceedings are for, while statistics suggests violent partners are hardly ever punished there either. Even in cases where they are, punishments are lenient.
The numbers are bleak. Only every fifteenth case of violence (53,000 / 3,607) and every third report of criminal offense (9,910 / 3,607) culminates in criminal proceedings.
The Public Prosecutor's Office has analyzed monthly statistics. In January of 2018, 672 cases of domestic violence not associated with proceedings were registered, 166 criminal proceedings were launched and 33 convictions achieved. This means that a conviction was achieved only in every 25th registered case of domestic violence.
This means that just 4 percent of registered violence culminates in a punishment. This result matches an earlier estimate by the Estonian Institute for Open Society Research, according to which only 5-6 percent of registered cases of violence merit punishments. This means that 94-96 percent of domestic violence goes unpunished.
Private prosecution procedure where victims can launch criminal proceedings themselves is unknown to our justice system. This means victims depend fully on the discretion of police officers and prosecutors working the case.
Practical assessments suggest that the most effective ways of fighting domestic violence include ordering violent parties to attend mandatory programs (anger management, empathy training etc.) and seeking restraining orders against them.
Even though section 29, subsection 1 and section 50, subsection 1 of the Istanbul Convention obligate the Republic of Estonia to ensure effective legal protection for victims, no one has yet developed programs aimed at changing violent behavior in Estonia, while no legal act orders their use.
That is why the likelihood of a violent offender being ordered to attend such a program is nonexistent. At best, they attend programs once in prison by which time the damage is already done.
One way to escape violence after the relationship ends is a restraining order against the violent partner. Unfortunately, moving for one is the quickest way to meet your tormentor again.
If you apply for preliminary legal protection (so the restraining order would take effect during proceedings), the court must hear the matter on the next day. For this purpose, a court session is held where both sides are questioned in person.
This means that if the victim moves fast and applies for a restraining order immediately after they are attacked, they must meet their attacker the very next day to tell the story of what was done to them and listen to how they made it all up or misunderstood. Very few victims are capable of this.
If the victim fails to show up, the application gets rejected along with the restraining order. If the victim files for a restraining order later and fails to move for preliminary protection, their application is not satisfied because the danger was not acutely felt.
The other very common reason for not granting restraining orders is that no further attacks have taken place during proceedings.
The fact that most violent partners are not imbeciles who would risk their position in proceedings, but intelligent and functional adults who will return to violence only after proceedings are concluded, is no longer the judge's problem.
Restraining orders all but unachievable
Data from the Ministry of Justice suggests that restraining orders in criminal proceedings were applied for in just 63 out of 3,607 registered cases of violent crime in 2018 (total of 53,000 cases of violence), while there is no information on how many were satisfied.
The applications numbered 25 the previous year and just 14 in 2016. According to the ministry, civil cases saw 61 restraining orders applied for and 14 satisfied, fewer than every fourth.
The statistics is depressing. To put it simply, only one out of 1,000 victims of domestic violence applies for a restraining order, while only one in four thousand is granted one.
To put this into context, if every single of the approximately 4,000 residents of the town of Põltsamaa were beat up every single day, the state would only protect one lucky resident. The rest would be left to their own devices.
It is possible to protect victims, while we're not doing it
Offenders against whom restraining orders have been sought but not granted and those against whom a report of criminal offense has been filed only for it to go nowhere are united in gaining strength and confidence from lack of state intervention.
This means 95 percent of those who resort to violence are given practical support and certainty that they're not doing anything wrong from the state.
Similarly, the lion's share of victims who decide to defend themselves find out that they have bothered the authorities in vain, that their suffering is not worth a reaction and their fears baseless. Others do not even have that courage, which, looking at the above-mentioned figures, cannot be held against them.
If even causing serious bodily injury or rape are not followed by punishment or a restraining order and have no effect on custody and interactions disputes, why should the violent party stop. They have no reason to.
Attackers, now confident in their state sanctioned impunity, again take it out on the victims, with the latter being forced to cooperate and stop "mutual fighting" in our conciliation-oriented proceedings, meeting all of the aforementioned obstacles again.
Instead of protecting the person against physical contact with their attacker, victims are expected to find help via the 116006 crisis hot line, the palunabi.ee (link in Estonian) website and endless social campaigns. While these no doubt offer moral support, it remains unclear how they are expected to keep attackers at bay and away from the victim.
The entire system is geared toward forcing the victim to accept that they are one and move on with their life instead of offering actual protection. Often in a situation where the violence continues. The side of prevention, removal of threats and protection of victims is virtually nonexistent, even though article 52 of the Istanbul Convention obligates Estonia to prioritize the safety of victims and vulnerable persons.
Instead of re-victimizing people in the course of proceedings and high-sounding slogans, we could protect them from violence by developing programs to alter violent behavior, creating a legal basis for their application as tools of prevention and simplifying grounds for and rules of restraining orders, prioritizing the need to ensure safety of victims.
All these are direct obligations pursuant to the Istanbul Convention. Instead, we are engaging in replacement activity and combating consequences, while even that is slow going. No shelter, hot line or social media campaign can take the place of judicial proceedings, alter their result or save the victim from violence.
Unfortunately, all they do is create unrealistic expectations in terms of results and the illusion that violence can be left behind with help from the police and the court.
Instead of offering protection, we are demanding cooperation and conciliation from victims. At the same time, 80 percent of domestic violence cases are never reported, 95 percent of attackers go unpunished, virtually no one among tens of thousands of victims is granted restraining orders, while the violence shows no signs of abating.
We continue to lead Europe in terms of suicides, violent deaths and depression. And while I will leave drawing conclusions to more qualified people, perhaps there is a connection here?
(Article abridged. Parts I and II)
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Editor: Marcus Turovski