- Legislation should include policies that favor the prosecution of sexual assault cases.
- Legislation should require the development of protocols for prosecutors that allow the prosecution of an aggressor in the absence of the surviving person.
- Legislation should require that prosecutors receive training in the use of physical evidence, expert witnesses, and other judicial strategies aimed at strengthening the prosecution’s arguments in cases where it is not possible to rely on the testimony of a victim.
- Before forcing a survivor to testify, prosecutors should be required by law to carefully consider all factors that may cause them to hesitate or decide not to testify, including religious or cultural factors.
- Legislation should require prosecutors to receive training on the nature and impact of acts of harassment, stalking, and sexual assault; on factors that may influence a survivor’s ability or willingness to participate in prosecution; and on effective judicial strategies and approaches that enhance victim safety. Lack of training for prosecutors can lead to a low rate of complaints and prosecutions. See: Africa for women’s rights Ratify and respect! List of claims (in English), 2010.
- Legislation should require that, in all sexual assault cases, prosecutors consider victim impact statements.
- The legislation should require prosecutors to provide surviving persons with information on all aspects of the prosecution of a case, including details of the date and time of hearings.
- Legislation should require prosecutors to inform survivors about available support and protection mechanisms and opportunities to obtain restitution and compensation.
- When deciding not to prosecute or to file a sexual assault case, prosecutors should be required by law to explain to survivors the reasons for their decision. See the Rights of Survivors section.
- When declining to take or pursue legal action, prosecutors should be required by law to provide survivors with information about civil remedies, such as protection orders. Thus, in the legislation of Minnesota (United States) (in English), 2009, it is indicated in relation to the notification to the victims:
[…] (c) Whenever, pursuant to the provisions of this paragraph, a prosecutor makes a notification to a victim of stalking, domestic assault, or criminal sexual conduct, the prosecutor shall also inform the victim of the manner and advantages of requesting a protection […] order or a restraining order […] and the possibility of requesting them without incurring any type of expense. (§611A.0315, subd. 1.c)
- Prosecutors should be required in law to ensure that they do not delay the end of trials.
(See: UN Handbook, 3.8.2 and 3.8.3, Toolkit to End Violence Against Women and Protocols for Prosecutors, StopVAW, The Advocates for Human Rights)
Duties of prosecutors
- Legislation should clearly state that the responsibility of prosecuting domestic violence and dowry-related violence and deaths rests with the public prosecutor, regardless of the level of injury or evidence or degree of relationship between the aggressor and the victim. See: Model Strategies and Practical Measures for the elimination of violence against women in the field of crime prevention and criminal justice(A/RES/52/86), of 1997, article 7. b, which affirms that the main responsibility for filing a criminal action falls on the public prosecutor and not on the complainant/survivor of domestic violence. Lawmakers must ensure that crimes involving domestic violence or dowry-related violence are not considered less serious than other crimes. See Georgian law, Chapter V, Article 6. For example, in Austrian law, ex officio prosecution is exercised for all levels of injury in cases of violence. See UN Manual, 3.8.2.
CASE STUDY: Although the Indian Penal Code allows – subject to certain circumstances – to presume a link between death and a dowry demand (art. 304B), a mere suspicion proves nothing. Furthermore, a poor investigation may prevent such suspicion from arising. In the case Ashok Kumar Rath v. State(1993-2 Offenses 940 – Orissa), the deficient investigation carried out by the public prosecutor’s office meant that no evidence was found on the possible relationship between the death of a woman burned and the demand for a dowry, despite the fact that the death had place less than two years after their marriage. Due to flaws in the investigation (no neighbors were questioned, for example, about the alleged crime), it was impossible to prove that dowry demands made before the woman’s death amounted to acts of cruelty. In the case, Madhubehn v. State of Gujurat(1993), a complaint filed by the victim’s sister against the prosecution for a similar flawed investigation led to the court ordering the Central Bureau of Investigation to take over the investigation. See VK Dewan, Law Relating to Offenses against Women, 2nd ed., Orient Law House, 2000, p. 147.
- By holding perpetrators of violence to account, the public prosecutor sends the message to the community that domestic violence and dowry-related violence will not be tolerated.
- Legislation should require the public prosecutor to ensure that the investigative police body collects all available evidence, including witness statements and crime scene and injury photographs. By relying primarily on evidence collected by the police and not on victim testimony, the prosecution could reduce the risk of retaliation by the abuser and increase the chances of successful prosecution.
- Legislation should prescribe that the public prosecutor investigate the level of risk to victims in each case of domestic violence and dowry-related violence. Other agencies in the criminal justice system, including the police and judges, must also assess the level of risk to victims. See infra the heading Lethality or risk assessments in Criminal Law Provisions and the headings Duties of police officers and Duties of the judiciary.
(See: The Role of Prosecutors, StopVAW, The Advocates for Human Rights; Prosecutor Reform Initiatives, StopVAW, The Advocates for Human Rights; and Attorney General Policy for the prosecution of cases of domestic violence (in English), United Kingdom, March 2009)
- Legislation should require the public prosecutor to keep complainants/survivors informed of upcoming legal proceedings and their rights therein, including any judicial support systems in place to protect them. In article 9.b of the Model Strategies and Practical Measures for the elimination of violence against women in the field of crime prevention and criminal justice (A/RES/52/86), it is stipulated that ” notice to women who have been victims of violence of the eventual release of the detained or imprisoned, in all those cases in which the interest of the victim’s safety outweighs respect for the privacy of the person found guilty”.
Promising practice: Spanish law creates, by virtue of its article 70, the position of “Prosecutor against Violence against Women”, who must supervise, coordinate and present reports on the actions carried out and the procedures followed in the courts of violence against women. woman. The law also requires that prosecutors notify the complainant/survivor of the release of the perpetrator of violence and that prosecutors who dismiss cases of violence against women inform the complainant/survivor of the reasons why the case was dismissed.