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AUSTRIA
1. What is this toolkit?
Having given an overview of the EU Victims Directive and its implementation in the five partner countries, Make it happen! highlights the specific situation of women who have become victims of intimate partner violence and how these circumstances influence criminal prosecution.
Afterwards, some results of the Austrian research are presented and problematized with regard to victim protection. Quotations of victims and judges illustrate the findings.
The annex contains a checklist which is supposed to support the risk assessment done by public prosecutors and judges.
2. For whom is this toolkit?
Make it happen! is a toolkit for the different practitioners of the criminal justice system:
judges, public prosecutors, court assistants, law enforcement agencies, and police, among others.
3. The situation of victims of intimate partner violence – backgrounds and consequences for criminal justice
Family/ intimate partner violence is distinct from violence by strangers. Below, we will address resulting specifics and their consequences for police work and criminal justice.
y In most cases, intimate partner violence is not limited to one single event – which distinguishes it from violence committed by an unknown party. As long as the endangerer cannot successfully be prevented from contact with the victim, there is a risk of renewed violence, of intimidation and retribution, which negatively affects the victim’s sense of security.
Consequences for criminal prosecution: It is necessary to assess the risk of further aggression, and, if necessary, to take preventive action (e.g. barring order), as well as to check compliance repeatedly.
y History of violence in the relationship: In nearly 80 per cent of analysed cases, there are clues of repeated previous assaults. Women affected by violence rarely report the first act of violence; only when assaults escalate and become more frequent, they turn to the police.
Consequences for criminal prosecution: It is important to raise awareness of the possibility that victims have experienced violence over a longer period of time.
Indicators are e.g. (aborted) attempts at separation, trivialising incidents and excusing the perpetrator’s behaviour. A possible traumatisation from (repeated) violence may impact the victim’s attitude towards criminal prosecution (e.g.
willingness to report and to testify), which has to be taken into account.
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y Physical violence goes with other forms of violence. In three quarters of analysed cases, there were dangerous threats and psychological violence as well as physical assaults. Physical violence is only one aspect of exercising power and control, besides humiliation, verbal abuse, threats, economic and sexual violence. The consequences for the victim are traumatisation and a feeling of powerlessness and entrapment as well as insecurity and fear.
Consequences for criminal prosecution: In assessing offences, therefore, the complexity of violent relationships, and thus also forms of violence that are not open to criminal charges, should be taken into account, in terms of victim protection as well as of clarification of norms.
y ‘Privacy’ of violent acts. The term domestic violence already indicates that it primarily does not take place in the public space but within the residence. The lack of possible witnesses protects the perpetrator. Neighbours and family members who witness violence often hesitate to intervene.
Consequences for criminal prosecution: Compared to many other crimes, intimate partner violence remains “undetected” particularly often. It is necessary to raise awareness of indications of intimate partner violence.
y Lack of witnesses: Because of the private nature of the crime scene, there are rarely witnesses, which not only hampers the detection of a crime, but also the gathering of evidence and thus prosecution. If there are witnesses, they are often closely related to the victim and the endangerer (e.g. children, other family members), what engenders conflicts of loyalty.
Consequences for criminal prosecution: When witnesses are unavailable or unwilling to testify, immediately conserving further physical, medical and forensic evidence is decisive for criminal prosecution.
y Children are always affected by intimate partner violence. Even when they did not suffer immediate (physical) violence, witnessing violence and a chronically tense atmosphere may lead to mental and health problems and possibly traumatisation.
Consequences for criminal prosecution: As intimate partner violence is not limited to the immediate victim, measures of victim protection also have to be taken for indirect victims of violence.
y Ambivalent victim behaviour towards endangerer. Because of the close relationship between them, the victim’s attitude towards the violent partner is not as clear as in other cases of violence committed by strangers. Emotional attachment, hope for change, fear and/or manipulation may be reasons for this ambivalence.
Consequences for criminal prosecution: Police and judiciary should be aware of the causes of the victim’s lack of support for the criminal proceedings. This may be attributable to intimidation and threats, but the victim may also primarily have other goals, for instance maintaining the relationship. This causes ambivalence.
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y Complexity of legal provisions. In the case of domestic/ intimate partner violence, criminal and civil law (e.g. interim injunction, custody, alimony) and police measures (e.g. barring order) may be applicable. In addition, few victims have legal experience. For legal laypersons, who are also in a stressful situation following an escalation of violence, the legal jungle is nearly impenetrable.
Consequences for criminal prosecution: Victims need professional support to understand relevant legal provisions and the legal proceedings. As few victims have legal representation, police, the judiciary and specialized institutions of victim protection are an indispensable source of information, orientation and support.
y Need for support during criminal proceedings. Intimate partner violence often leaves victims vulnerable. This results in various needs for support: Victims may not want to meet perpetrators at court, refuse to testify in his presence, or want the company of a trusted person at the police and at court. Victims want to understand the proceedings, to be heard and understood.
Consequences for criminal prosecution: Psychosocial court support is an important offer to support victims, in order to keep them informed, to increase their sense of security and to ensure that they will be understood. Questioning the victim witness at court should be made possible without the perpetrator being present if the victim wishes it.
4. Make it happen! Victim protection and victim needs
We will now present the main results of the research project – first regarding police and prosecution in preliminary proceedings, and then for the court – and address needs of victim protection and awareness for victim needs following the main provisions of the Victim Protection Directive 2012/29/EU. Our information is based on the analysis of diaries of the Vienna prosecution as well as on interviews and discussions within the framework of the project advisory board with experts from the police, judiciary and victim protection institutions, as well as on interviews with victims of violence.