From: ABA Center for Human Rights
To: Dr. Ibtisam Aziz Ali, Director General of Iraqi Women Empowerment Directorate, Council of Ministers, Government of Iraq
Date: January 22, 2018
Re: Suggestions and Comments on Iraq’s Protection from Domestic Violence Bill
The American Bar Association (ABA) Center for Human Rights, in consultation with the ABA Commission on Domestic & Sexual Violence, conducted a comprehensive review of Iraq’s Protection Against Domestic Violence bill. As a result of this review, the Center respectfully submits the following suggestions and comments for your consideration. These suggestions are based on international best practices and informed by realities on the ground in Iraq.
Key Recommendations:
Domestic violence is an epidemic. Worldwide, one out of nearly every three women will be the victim of domestic or sexual violence in her lifetime. Millions of children are exposed to domestic violence every year and that exposure has a negative impact on their development. Moreover, studies indicate that forty to sixty percent of men who abuse women also abuse children. The Government of Iraq has an obligation to provide services to survivors of gender-based violence and to investigate and prosecute perpetrators of gender-based violence.
1. Provision of services, including shelter
Due in part to the conduct of organized armed groups in Iraq, there is a significant need for shelters for families fleeing violence. According to testimony by Iraqi officials to the UN Committee on Economic, Social and Cultural Rights, non-governmental organizations are playing a key role in meeting this need. These organizations often have the connections and the trust of local communities. Without their assistance, many victims are likely to face further violence. The Ministry should provide funding to such organizations and conduct appropriate oversight. The following language should replace the text of Article 8:
The Ministry of Labor and Social Affairs shall provide for the provision of services, including shelter, to victims of domestic violence. Any non-governmental organization seeking to run a shelter for victims of domestic violence must notify the Ministry. Such notification shall certify to the following:
- The purpose of the domestic violence shelter will be to provide confidential services to victims of domestic violence;
- This shelter will take all reasonable measures to prevent any crime from occurring on its premises.
The Ministry shall maintain the following role in conjunction with non-governmental organizations who register to run a shelter for victims of domestic violence. The government or its representative shall/may:
- Provide funding to shelters
- Request and compel production of aggregate data from shelters, none of which may include any personally-identifiable information about the residents or staff of the shelter, but which may include:
- The number of beds available at the shelter;
- The number of residents of the shelter within the previous calendar year
- Demographic information, including age and gender of; residents of the shelter within the previous calendar year;
- The number of nights each resident stayed at the shelter for the previous calendar year;
- The types of services provided at the shelter for the previous calendar year, and the number of clients that received each type of services;
- The number of staff and their educational and work qualifications for their respective positions;
Any non-governmental organization who notifies the minitry of the intent to operate a shelter shall:
- Maintain the privacy and confidentiality of its residents by:
- Maintaining a secure and protected location;
- Taking all reasonable measures to keep files with personally identifiable information in a secure manner; and
- Not informing any person outside the staff of the shelter whether any individual is currently or has in the past received services from that shelter.
- Maintain the privacy and confidentiality of its staff;
- Provide services to its residents, which may include:
- Supportive services;
- Therapeutic services;
- Assistance finding temporary or permanent housing;
- Legal services;
- Medical services;
- Religious-based counseling; and
- Any other services that would be beneficial to its residents;
The definition of shelters in Article(1) (Fifth) should be changed to, “Shelters: Places that provide housing and other services to victims of domestic violence or other forms of gender-based violence, as authorized by the provisions of this law.”
2. Protecting families seeking services
When victims seek help, they are particularly vulnerable to violence and re-traumatization. All services for victims should be voluntary. Reconciliation between victims and perpetrators should not be compelled nor a condition of seeking legal remedies. To ensure that those seeking services are not further victimized, Articles (3)(Second), Article 7 (Seventh), and Article 19, should be removed and replaced with: “Ensure the full and impartial investigation of all allegations of criminal misconduct.”
Article 6 should include a training provision, such as “The Department shall ensure that the police are trained on the provision of services to survivors of trauma, including the requirement of obtaining informed consent prior to disclosing any personally identifiable information about victims of domestic violence or persons providing services to victims. Such training shall ensure that neither victims nor those providing services to victims face retaliation or interference in their operations.”
Victims should be able to access services without going to court. Article 16 should therefore be revised to strike “to request relocation to a shelter or”. In Article (10) the name of the Department should be changed and the specialized judge MUST (not leave it optional for the judge) take ALL necessary legal actions according to the law when a case is referred to him by the Department of Domestic and Gender-based Violence. The article can be written as follows,
“When a violent incident or breach of a protection order is reported, the person responsible for investigating cases at the Department of Protection from Domestic Violence should immediately refer the case to a specialized judge who must take the necessary legal actions according to the law.”
The penalties proscribed in Article (20) should be increased to be proportionate with the crime. The views of the victim should be considered by the court, especially where fines could hurt the victims. Imprisonment should be considered in addition to fines.
3. Ensuring Public Participation
The government should seek broad public participation in discussions concerning efforts to reduce domestic violence. To ensure that decision makers have all relevant information, Article 4 should include the following: “Fourth: The Committee shall post the agenda of its meetings on a public website no less than 7 days in advance of the meeting as well as records of any votes taken and results of such votes within 7 day.” The public should be given an opportunity to comment on any decisions made by the Committee, Ministry and Departments charged by the law with providing assistance to survivors of domestic violence.
Article 4(First)(C) should offer NGO representatives the right to vote. Civil society needs to play a bigger role. The language can be as follows, “Two non-government organizations representatives who are involved in providing services to victims of domestic violence. Those will be selected by the Committee as members with rights to vote.”
To ensure that the public is able to participate in a meaningful way, Article (5)(Fourth) needs to provide more details on the content of the report:, “Oversee preparations of domestic violence reports in the Republic of Iraq, including a summary of the work of the Committee and the aggregate number of complaints filed, arrests made, charging documents issued and convictions sustained. At no time will the Committee disclose personally identifiable information about victims of domestic violence.”
4. Other Recommendations:
The word “rehabilitation” is used throughout, but it should be replaced with services.
In Article (1) First, “Intellectual assault” should be replaced with “emotional abuse” which is often included in the definition of domestic violence. The term “intellectual assault” is unclear, especially that psychological assault has already been listed in point(Third) of this article.
In Article (1)(E) the word “inclusion” is not clear; therefore, it should be further illustrated.
It is important to add the two below definitions under Article (1):
-Gender-based violence is any physical, sexual, psychological, economic or emotional assault or threat against an individual motivated by their gender.
-Personally Identifiable Information: Information that could potentially identify an individual either directly by name, or indirectly by describing circumstances or familiar relations that would make it possible for knowledgeable persons to identify that individual.
Protection order under A(1)(Sixth) should be not be limited to a particular time-frame or gender. The following language is suggested for its definition, “Protection Order: Order issued in accordance with this law to provide protection for victims of domestic or gender based violence and to offer services for him or her within 24 hours.”
In Article (3)(First), “rehabilitation” should be changed to “services” and list the type of services, “medical, emotional, physical and security services.”
In Article (Fourth) the Directorate Ministry of State for Women Affairs should be replaced with Directorate of Women Empowerment since the last was replaced by the Directorate. The committee to be formed should be called High Committee for Protection from domestic and religious based violence,
Article (5)(Third) civil society need to be added to have a role in the coordination process.
Article (4)(Fourth), Republic of Iraq need to include Kurdistan.
In Article (6)(First) The name of the Department of Protection from Domestic Violence should be changed to Department of Domestic and Gender-based Violence to include victims of domestic violence, victims of ISIS violence, and victims of gender based violence. The years of work experience for the civil servant should also be listed. The language of the article can be as follows,
“A department shall be established called Department of Protection from Domestic and Gender-based Violence” which will be part of the Ministry of the Interior directed by a civil servant with title of Director General. He/She must hold a university degree in social or humanitarian science and have at least five years’ experience in the field of family protection. He/she shall be selected from among the staff of the Ministry, according to the law.”
In Article (7) the Department of Family Protection should be changed to Department of Protection from Domestic Violence and Gender-based Violence.
In order to have the right protection guarantees and be able to provide the necessary services for victims, Article (8) should be listed as follows:
In Article (9)(First)(c) the name of the Department should be changed.
Article (14) the Supreme court should form more than one court to investigate domestic and gender based violence. Article (14) can be written as follows, “The Supreme Judicial Council forms courts in each province to investigate domestic violence and gender based religious crimes.”
Article (17)(Fifth), should be changed to, “ Perpetrator should not be permitted to communicate with the victim whether at home, at work place, or at a shelter.”
Article (18)(First & Second),Protection order should not have a specific time frame. It should continue as long as the threat exist.
In Article (18)(Third) only the victim or his legal representative should be offered the right to cancel her/his protection order.
In Article (19)(1) the name of the department should be changed as previously clarified.
In Article (19)(Second) the victim may choose to forgo legal remedies but the State’s duty to investigate and prosecute criminal misconduct remains notwithstanding settlement.
In Article (24) the Ministry of State for Women Affairs should be replaced with Ministry of Labor and Social Affairs and Directorate of Women Empowerment.
In the reasons this Law was enacted, change to, “To protect individuals, families and communities from the effects of domestic, gender based violence, reduce crimes committed against them, deter perpetrators and provide all the necessary services for victims.”