Domestic Violence- Medical and Legal Aspects Chapter Notes | Forensic Medicine and Toxicology (FMT) - NEET PG PDF Download

Introduction

• Domestic violence is also known as partner violence, relationship violence, and intimate partner abuse.
• Other terms used include spouse abuse, domestic abuse, wife abuse, wife beating, and battering.
• Domestic violence refers to a situation where one partner is forced to change their behaviour because of the abuse or threats from the other partner.
• It is recognized when one intimate partner uses physical violence, coercion, threats, intimidation, isolation, and/or emotional, sexual, and economic abuses to gain power and control over the other.
• This form of violence affects a person with whom the abuser has or had an intimate, romantic, or spousal relationship.
• Domestic violence can impact individuals of all genders and sexual orientations, including those in gay and lesbian relationships.

Understanding Domestic Violence in India

Domestic violence in India is legally defined under the Protection of Women from Domestic Violence Act 2005. This definition encompasses various forms of abuse or threats of abuse, including:

• Physical Abuse: This refers to any physical harm or injury inflicted on an individual.
• Sexual Abuse: Involves any non-consensual sexual acts or coercion.
• Verbal Abuse: This includes using words to harm, intimidate, or belittle someone.
• Emotional Abuse: Involves actions that cause psychological harm or distress.
• Economic Abuse: This refers to controlling a person’s financial resources or causing financial harm.

These forms of abuse can significantly harm the health, safety, life, limb, or well-being of the aggrieved person.

The act also addresses:

• Child Sexual Abuse: Protecting children from sexual exploitation and abuse.
• Dowry Harassment: Harassment related to unlawful demands for dowry.
• Marital Rape: Recognizing and addressing non-consensual sexual acts within marriage.

Importantly, the Protection of Women from Domestic Violence Act 2005 safeguards both women and children who are victims of domestic violence, ensuring their right to protection and safety.

Incident of Domestic Violence

Domestic violence impacts individuals from various backgrounds, including different races, religions, ages, sexual orientations, and economic statuses. While victims can be of any gender, statistics show that domestic violence is more prevalent among women. Victims typically fall into one of three categories:

Categories of Victims

• Vulnerable Individuals: This group includes those who are single, legally divorced, recently widowed, recently separated, have sought protection orders, are under 28 years old, struggle with substance use, or have partners who are excessively jealous or possessive.
• Childhood Trauma Survivors: Individuals who witnessed or experienced physical or sexual abuse during their childhood fall into this category. Their experiences of abuse in childhood increase their vulnerability to domestic violence in adulthood.
• Partners of Childhood Abuse Survivors: People whose partners have witnessed or experienced physical or sexual abuse as children are also at risk. The cycle of abuse can perpetuate itself when one partner has a history of abuse, making the relationship more susceptible to domestic violence.

Understanding the Medical Aspects of Domestic Violence

Domestic violence refers to a pattern of controlling behaviors exhibited by one adult or adolescent with the ability to dominate another. These behaviors can occur individually or in combination, sporadically or continuously, and fall into three main categories:

• Physical violence
• Psychological abuse
• Nonconsensual sexual behavior

Each type of domestic violence will be elaborated upon in the subsequent sections. It is crucial to understand that each incident of domestic violence builds upon previous occurrences, creating a cycle of escalating violence.

Physical Violence

Physical violence encompasses a range of harmful actions, including:

• Pushing
• Shoving
• Slapping
• Punching
• Choking
• Kicking
• Holding
• Binding
• Using weapons

Within the context of domestic settings, two primary forms of physical violence are observed:

• Occasional mutual violence
• Coercive control

Research conducted by the United States Preventive Services Task Force indicates that coercive control is more prevalent in domestic violence scenarios.

Psychological Abuse

Psychological abuse involves a range of harmful behaviors aimed at undermining the victim's mental and emotional well-being. This can include:

• Threats of harm to the victim or others
• Intimidation
• Coercion
• Humiliation
• False accusations
• Ridicule

Psychological abuse can occur during or after a relationship. A significant aspect of psychological abuse is cyberstalking, which utilizes the Internet to threaten and intimidate victims. Cyberstalkers may target individuals through various online platforms, including:

• Chat rooms
• Message boards
• Discussion forums
• Email

Forms of cyberstalking can include:

• Threatening or obscene emails
• Spamming the victim with junk email
• Online harassment
• Improper messages on boards
• Sending electronic viruses
• Tracing online activity
• Electronic identity theft

In 2000, the Violence Against Women Act recognized cyberstalking as a form of federal stalking, thereby incorporating it into federal laws in the United States.

Sexual Abuse

Sexual abuse involves nonconsensual or painful sexual acts, often without adequate protection against pregnancy or sexually transmitted diseases. Sexual abuse can manifest in various forms, including:

• Minimizing the victim's feelings about sex
• Criticizing the victim sexually
• Insisting on unwanted or uncomfortable touching
• Withholding sex and affection
• Forcing sex after physical abuse or when the victim is unwell
• Committing rape
• Displaying jealous anger
• Insisting that the victim dress in a more sexual manner than they prefer

Effects of Domestic Violence on Children and Teens

Domestic violence and child abuse frequently occur together in the same households. Children living in homes with domestic violence experience physical abuse and neglect at a rate 15 times higher than the national average. Research shows that in 60 to 75 percent of families where a woman is abused, children also face abuse. These children are also at an increased risk of sexual abuse.

Impact on Children

• Children in homes affected by domestic violence often become "parentified," taking on adult responsibilities like cooking, cleaning, and caring for younger siblings, which leads to them maturing faster than their peers.
• As a result, they miss out on a normal childhood.
• These children may struggle to trust their fathers due to their abusive behaviour, causing anxiety about returning home.
• They learn to cope with unpredictable situations from a young age, and isolation is common, as typical activities like inviting friends over are not possible due to the chaotic home environment.
• School performance can vary, with some children becoming overachievers, while others may exhibit extreme introversion or extroversion.
• Psychosomatic issues, such as unexplained aches and pains, are common, and their eating and sleeping patterns are often disrupted.
• Witnessing domestic violence can severely damage a child's confidence, leaving them in a state of shock.
• Infants and toddlers exposed to violence may exhibit excessive irritability, immature behaviour, sleep disturbances, emotional distress, fears of being alone, and regression in toileting and language skills, along with potential behaviour problems like aggression.

Challenges for Teens

• Teens living with domestic violence face the difficulty of fitting in with peers while keeping their home life a secret.
• Those in shelters often have to move and start over in a different school, making new friends while feeling ashamed of their situation.
• Family relationships can become strained, sometimes to the breaking point, leading to the possibility that these teens never learn to form trusting, lasting relationships.
• Some may end up in violent relationships as adults, either as victims or perpetrators.

Domestic Violence and Law in India

India is still developing, and while there are cases of domestic violence, many of them go unreported. After marriage, numerous women feel compelled to tolerate their husbands' behavior, regardless of how harmful it may be, and keep these incidents private. In joint families, older members typically attempt to resolve such matters without involving outside authorities. Even family doctors might hesitate to report suspected cases, fearing that it could worsen the victim's situation.

Legal Framework

India is committed to the Convention on the Elimination of All Forms of Discrimination against Women and the Universal Declaration of Human Rights, which ensure that women have equal rights and are not discriminated against. The Constitution of India also guarantees justice for women through provisions like:

• Article 15, which prohibits discrimination based on religion, race, caste, sex, or place of birth.
• Article 15 (3), which allows the legislature to make special provisions for women and children.

Using this constitutional power, the Protection of Women from Domestic Violence Act was enacted in 2005 to protect women from domestic violence.

Overview of the Protection of Women from Domestic Violence Act, 2005

The Protection of Women from Domestic Violence Act, 2005, is a crucial legislation in India aimed at safeguarding women from various forms of abuse within a domestic setting. This Act recognizes the different kinds of abuse that women may face and provides a legal framework for their protection and redressal.

Key Features of the Act
Physical Abuse:

• Physical abuse involves any act or behavior that causes bodily pain, harm, or endangerment to a woman's life, limb, or health.
• This includes actions that harm the health or development of the aggrieved person.
• It also encompasses acts that constitute assault, criminal intimidation, or criminal force.

Sexual Abuse:

• Sexual abuse refers to any behavior of a sexual nature that abuses, humiliates, degrades, or violates the dignity of a woman.

Verbal and Emotional Abuse:

• Verbal and emotional abuse includes any form of insult, ridicule, or humiliation.
• It specifically addresses mocking or ridiculing a woman for not having a child or a male child.
• Additionally, it covers repeated threats to inflict physical pain on someone the aggrieved person cares about.

Economic Abuse:

• Economic abuse involves depriving the aggrieved person of essential financial resources to which she is entitled under law or custom, or which she needs.
• It includes disposing of household assets, selling movable or immovable assets, and restricting access to resources or facilities she has a right to due to the domestic relationship.

Domestic Relationship:

• A domestic relationship, as per the Act, includes live-in relationships and other connections arising from family membership.

Beneficiaries under the Act:

• Women: The Act protects women living with the respondent in a shared household who are related by blood, marriage, or adoption. It also includes women in relationships resembling marriage, including those in fraudulent or bigamous marriages or invalid marriages.
• Children: The Act covers children under the age of 18 years, including adopted, step, or foster children suffering from physical, mental, or economic abuse. Any person can file a complaint on behalf of a child.
• Respondent: The respondent is defined as any adult male who is or has been in a domestic relationship with the aggrieved person and includes relatives of the husband or male partner.

Shared Household

• A shared household is defined as a place where the aggrieved person lives or has lived in a domestic relationship, either alone or with the respondent.
• This household may be owned or rented by either or both parties, or belong to a joint family of which the respondent is a member, regardless of their legal rights in it.

Rights Granted to Women

Right to reside in a shared household: The law guarantees a woman’s right to live in the matrimonial or shared household, even if she does not own it or have legal rights to it. A portion of the home can be designated for her exclusive use. Courts can issue residence orders to uphold her right to stay in the household.

• The Supreme Court has clarified that a wife’s request for alternative housing is only directed at her husband, not her in-laws. Her entitlement to a ‘shared household’ does not apply to her in-laws' privately owned property.

• Right to obtain assistance and protection  

A woman experiencing domestic violence has the right to seek assistance from various authorities and organizations, including:

• Police Officers
• Protection Officers
• Service Providers
• Shelter Homes
• Medical establishments

Additionally, she can file a complaint under Section 498 A of the Indian Penal Code, which addresses matrimonial cruelty.

Right to issuance of orders

When domestic violence is proven, a woman can request various orders from the courts, including:

• Protection Orders: These orders prohibit the accused from committing further acts of domestic violence, entering the victim’s workplace or school, contacting her, or causing harm to her relatives.
• Residence Orders: These orders ensure that the victim is not evicted, her belongings are secured, and she may receive alternative accommodation if necessary. The respondent can be removed from the shared household.
• Monetary Relief: The respondent may be held responsible for expenses and losses resulting from domestic violence, including lost wages, medical expenses, and maintenance for the victim and her children.
• Custody Orders: These orders grant temporary custody of children to the victim or someone acting on her behalf and may regulate visitations by the respondent.
• Compensation Orders: The respondent may be ordered to pay for damages caused to the victim due to acts of domestic violence, including emotional distress.
• Interim and Ex parte Orders: These orders may be issued if necessary after an act of domestic violence or if such an act appears imminent, based on the victim’s affidavit.

Right to obtain relief granted by other suits and legal proceedings

The aggrieved individual is entitled to seek relief from other legal actions initiated in civil, family, or criminal courts.

Liabilities and Restrictions Imposed Upon the Respondent

• The respondent may face restrictions outlined in the Protection and Residence order issued against him.
• He is required to provide monetary relief to the aggrieved person and her children, along with compensation for damages as specified in the compensation order.
• The respondent must comply with the court's arrangements regarding the custody of the aggrieved person's child or children, as detailed in the custody order.
• The Act prohibits any female relative of the husband or male partner from filing a complaint against the wife or female partner. (Please specify the title of the Act for clarity.)

Authorities Responsible and Their Functions

The Act empowers State Governments to designate Protection Officers and Service Providers to assist individuals affected by domestic violence in accessing their rights, which include medical examinations, legal assistance, safe accommodation, and other necessary services.

Protection Officers:

• Protection Officers work under the direction of the court and have specific roles in cases of domestic violence.
• They assist the court by preparing the Domestic Incident Report, which is the petition submitted to the magistrate's office.
• Their responsibilities include providing information about Service Providers to the aggrieved person and ensuring compliance with monetary relief orders.

Service Providers:

• Service Providers are organisations dedicated to women's rights, registered under the Companies Act or the Societies Registration Act.
• They must be registered with the state government to document the Domestic Incident Report and assist with medical examinations.
• These organisations advise the aggrieved person on her legal rights and help her initiate legal actions or take protective measures.
• The law protects them from legal action for actions taken in good faith while exercising their powers under the Act.

Court of First Class Judicial Magistrate or Metropolitan Magistrate:

• This court is tasked with handling cases of domestic violence.
• Either party involved in the case must live, work, or conduct business within the court's jurisdiction, or the cause of action must have occurred within that area.
• The Magistrate has the authority to conduct private hearings if requested by either party.

General Duties of Police Officers, Service Providers, and Magistrate:

• Upon receiving a complaint of domestic violence, these authorities must inform the aggrieved person about:
  • Her right to seek relief or various orders under the Act;
  • The services offered by Service Providers and Protection Officers;
  • Her entitlement to free legal services;
  • Her right to file a complaint under relevant sections of the Indian Penal Code.

Counsellors:

• The Magistrate has the authority to appoint qualified individuals from a Service Provider to offer assistance during the proceedings.

Welfare Experts:

• Welfare experts can be appointed by the Magistrate to assist with his responsibilities.

In-charge of Shelter Homes:

• The person responsible for a shelter home must provide accommodation to the aggrieved person if requested by her, a Protection Officer, or a Service Provider.

In-charge of Medical Facilities:

• The individual in charge of medical facilities must offer medical assistance to the aggrieved person upon request by her, a Protection Officer, or a Service Provider.

Central and State Governments:

• The Central and State Governments are responsible for ensuring widespread awareness of the Act's provisions through various media channels regularly.
• They must raise awareness, provide training for government officials, and coordinate services across all Ministries and Departments.

Procedure for Filing a Complaint and the Court's Responsibilities

Filing a Complaint:

• An aggrieved person or witness can file a complaint with a Police Officer, Protection Officer, Service Provider, or directly with a Magistrate to seek orders under the Act.
• Informants providing information about the offense in good faith will not face civil or criminal liability.

Court's Duty:

• The court must acknowledge the complaint and schedule a hearing within three days of its filing.

Notice and Hearing:

• The Magistrate is responsible for notifying the Protection Officer to serve the Respondent and others within a maximum of 2 days, or as extended by the Magistrate.
• The court is obligated to resolve the case within 60 days of the first hearing, as per local laws.

Establishing Offense:

• The court may establish the offense based on the testimony of the aggrieved person alone.

Protection Order:

• If the complaint is found to be genuine, the court can issue a Protection Order that remains in effect until the aggrieved person requests a discharge.
• The Magistrate has the authority to modify or revoke the order upon receiving an application from the aggrieved person, with a written explanation.

Section 498 A of the Indian Penal Code:

• A complaint can also be filed under Section 498 A, which addresses the offense of matrimonial cruelty and outlines the punishment for the husband or his relatives subjecting a woman to cruelty.

Penalties and Punishments

For Respondent

• Breaching the Protection Order or interim Protection Order is a serious offence for the Respondent.
• It is a non-bailable offence, which means the Respondent cannot get bail easily.
• The punishment can be imprisonment for up to one year, a fine of up to twenty thousand rupees, or both.
• Additionally, the Respondent may face charges under the Indian Penal Code and the Dowry Prohibition Act.

For Protection Officer

• If the Protection Officer does not perform his duties as instructed by the Magistrate without a valid reason, he will be committing an offence under the Act.
• The penalties for the Protection Officer are similar to those for the Respondent.
• However, the Protection Officer cannot be punished without prior approval from the state government.
• The law also protects the Protection Officer for any actions taken in good faith.

Appeal

A person can challenge any order made by the Magistrate by appealing to the Court of Session within 30 days from the date the order is received by either party.

The Protection of Women from Domestic Violence Rules, 2005

The Act empowers the Central Government to establish rules for its implementation. Consequently, the government has formulated the Protection of Women from Domestic Violence Rules 2005, which encompass the following aspects:

Key Areas Covered

• Qualifications and experience necessary for a Protection Officer, along with the terms and conditions of their employment.
• Procedure for applying for a Protection Order to the Magistrate.
• Format for requesting legal aid and services.
• Additional duties of the Protection Officer.
• Regulations for registering Service Providers.
• Procedures for serving notices.
• Guidelines related to counseling and the protocols for Counselors.
• Rules for providing shelter and medical assistance to the aggrieved party.
• Regulations concerning the breach of Protection Orders.

Domestic Violence and Law—Global Scenario

Domestic violence is prevalent, yet it frequently goes unrecognized or overlooked by professionals like doctors, therapists, and law enforcement. Healthcare professionals play a vital role in identifying, treating, and referring victims, which helps break the often-repeated cycle of domestic violence. Doctors can effectively screen and intervene by:

• Taking a history of violence.
• Asking specific questions when abuse is suspected.
• Documenting physical signs linked to domestic violence.
• Assessing the victim’s immediate and future safety.
• Communicating all realistic options to the victim.

Some states in the USA have laws addressing this crime.

Legally, medical personnel must report suspected domestic violence. However, many experts believe it is “absolutely contraindicated” to report such cases without the victim’s consent. They argue that mandatory reporting can increase the survivor’s feeling of powerlessness and may heighten the risk of further harm, including homicide.

Medicolegal Aspects
In the USA, domestic violence victims can obtain a Civil Protection Order (CPO) by law. In most countries, an abused adult can file for this order on their own. An adult may also file on behalf of a child or someone unable to make decisions. Some states allow minors to petition for protection themselves.

Persons Most Likely to Experience Domestic Violence

• Women who are single or have recently separated or divorced.
• Women who have sought an order of protection.
• Women younger than 28 years old.
• Women who abuse alcohol or drugs.
• Women who are pregnant.
• Women with excessively jealous or possessive partners.
• Women who have witnessed or experienced abuse as children.
• Women whose partners have a history of abuse as children.

While some states have laws regarding domestic violence protection, many experts advise against mandatory reporting of suspected cases without the victim's request and consent, as it may increase their sense of helplessness and risk of further harm.

A recent survey found that “45 per cent of clinicians never or seldom asked about domestic violence when examining injured patients.” Consequently, less than 15 per cent of female patients report being asked about abuse by their doctors.

Basic for Granting

In the USA, state laws define the necessary relationships for a CPO to be granted. Recognised targets include:

• Current or former spouses.
• Family members related by blood or marriage.
• Current or former household members.

Courts have identified several acts as abusive enough to justify a CPO, such as:

• Threats.
• Interference with personal liberty.
• Harassment.
• Stalking.
• Emotional abuse.
• Attempts to inflict harm.
• Sexual assault.
• Marital rape.
• Assault and battery.
• Burglary.
• Criminal trespass.
• Kidnapping.
• Damage to property, including pets.

CPOs typically require the respondent to:

• Not molest, assault, harass, or threaten the petitioner or their children.
• Stay 150 yards away from the petitioner’s home, person, workplace, children, place of worship, and daycare.
• Not contact the petitioner or their children in any manner.
• Vacate the residence by a specified date and time, with police assistance to collect personal belongings.

Objective

• Relinquish possession and/or use of the following personal property as of (date and time).
• Turn over to the police any and all weapons that the respondent owns or possesses, along with all licenses the respondent has for possession or purchase of weapons.
• Participate in and successfully complete a counselling programme.
• Relinquish custody of minor children to the petitioner until further court order or the expiration date of the order.
• Have rights of visitation with minor children under specified conditions.
• Pay spousal and child support as designated.
• Pay for specified repairs, medical or health insurance costs, attorney’s fees, and court costs.

Enforcement

• In most states, violating a CPO is a crime, and police can arrest the offender, even if the violation did not occur in the officer's presence.
• The trend is to enhance civil or criminal contempt enforcement with misdemeanor charges and to increase the criminal classification for violating a CPO.
• CPOs can remain in effect even if the parties reunite or if the petitioner invites the abuser back into their home.

Criminal Domestic Violence Prosecutions

• For much of the twentieth century, victims of ongoing domestic violence who killed their partners struggled to prove self-defence, as courts viewed the attack as unnecessary and the victim as the aggressor.
• In the 1970s, psychologist Lenore Walker studied women to explain common psychological and behavioural patterns seen in those who suffered from prolonged abuse.
• Walker theorised that repeated and unavoidable abuse, combined with societal conditioning for women to be submissive, created a state of "psychological paralysis," making it difficult for battered women to seek help.
• She introduced the term battered woman syndrome, which aimed to support claims that the victim believed they had to kill for their own safety, even during less violent times.
• However, invoking this syndrome may not always serve justice for battered women. Experts suggest redefining the "battered woman" as their experiences encompass more than just psychological responses.
• As discussions continue over the role of domestic violence expert testimony, courts have started to accept behavioural science evidence in such cases.

The Role of Law in Domestic Violence Cases:

• The law's role extends beyond CPOs and criminal prosecutions. It includes the need to support and protect children, maintain employment rights, and address potential tort actions.
• Batterers may escalate abuse and even kidnap their children.
• The effects of domestic violence on children can lead to various issues, such as:
  • Medical problems
  • Substance abuse
  • Suicide attempts
  • Eating disorders
  • Nightmares
  • Fear of harm
  • Loneliness
  • Bedwetting
  • Delinquent behaviour, such as fighting, truancy, and running away
  • Teenage pregnancy
  • Cognitive disorders
  • Low self-esteem

Prenuptial Agreements

• Domestic violence may impact prenuptial agreements in three main ways:
  • Battering can provide a defence against enforcing a valid prenuptial agreement.
  • Domestic violence may lead to tort claims that counteract economic distribution limitations in many prenuptial agreements.
  • A prenuptial agreement can state that incidents of domestic violence nullify its terms.

Employment Issues

• Many victims face harassment at work from current or former partners.
• Victims may miss work due to injuries, court dates, or participation in criminal investigations.
• Job performance can suffer due to depression, fear, and other psychological impacts of abuse.
• Employers may face liability if domestic violence occurs in the workplace or if they do not handle the situation appropriately.
• Theories of liability may include:
  • Occupational Safety and Health Administration’s "general duty" clause
  • Respondeat superior
  • Duty to warn
  • Wrongful discharge in violation of public policy or privacy rights
  • Negligent hiring, retention, and security
• Victims are also protected by workers’ compensation, unemployment insurance, and laws that maintain benefits for those cooperating with the legal process.
• The primary challenge for employers is balancing the need to protect employees and ensure safety at work with respecting employee privacy and avoiding discrimination.

Conclusion

• Medical and legal professionals need to improve their ability to identify and address domestic violence.
• Effective identification and intervention require:
  • Being vigilant
  • Having knowledge
  • Being willing to ask the right questions
  • Feeling obligated to help end this serious societal issue
• Understanding legal considerations can enhance cooperation among:
  • Health care workers
  • Legal professionals
  • Community programs
• These efforts aim to combat domestic violence, which is a major public health concern.