[Passed] [ga]: Ending Domestic Abuse

[Lenlyvit]

General Assembly Resolution

Ending Domestic Abuse

A resolution to enact uniform standards that protect workers, consumers, and the general public.

Category: Regulation

Area of Effect: Legal Reform

Proposed by: Barfleur

The World Assembly,

Applauding prior action taken by this body to combat sexual offenses, crimes against children, and domestic abuse,

Concerned about the potential for victims of domestic abuse to be prosecuted either as accomplices or under theories of failure to protect others, without regard for the particular nature of such abuse which makes failure to protect near-impossible,

Desiring to add teeth to existing orders of protection and to facilitate the issuance of new orders, and

Committed to protecting victims and survivors of domestic abuse from future retaliation by their abusers,

Hereby enacts as follows:

1. Requirements for criminal prosecution.

A person may not be convicted of an offense of enabling, or failing to protect a child or other vulnerable person from, physical violence, sexual abuse, or neglect, if the defendant:

a. reasonably believed their own life or safety to be in danger as a result of the same person or persons who engaged in the underlying conduct the failure to protect from which constitutes the instant offense;

b. was under the influence of any mind-altering substance not voluntarily consumed, and was therefore incapable of effectively protecting such child or other vulnerable person;

c. was not actually present in the same location, and did not have a reasonable opportunity to become present, at a time when the defendant had a reasonable opportunity to protect such child or other vulnerable person; or

d. was not physically able, due to restraint or confinement, or due to bodily condition, to render meaningful aid to the degree required to purge criminal liability in the absence of this clause.

2. Applicability of section 1.

Section 1 applies retroactively, without regard to the stage of the criminal proceedings at the time of enactment of this resolution. Any person convicted of an offense of failing to protect a child or other vulnerable person from physical violence, sexual abuse, or neglect, where the conviction is subject to appeal or has become final at the time of enactment of this resolution, may petition the court having jurisdiction of the offense to reopen the case, and the court shall grant such petition on a showing that:

a. the defendant intends to raise any point described in section 1; and

b. given the facts of the case and the evidence known to the court, such a defense has a colorable claim and a reasonable possibility of success on the merits.

3. Mitigation.

Where a person is convicted of a violent or sexual offense against a person who, at the relevant time, was a child, lineal or lateral descendant, spouse, civil partner, legal ward, or cohabitant of the defendant, and such conviction relied on any theory of criminal liability involving a person other than the defendant, the court shall permit the defendant, before sentencing, to offer evidence that:

a. the defendant engaged in the criminal conduct as a result of the actual or threatened actions of such other person; and

b. such actions, if actually carried out, would be expected to be worse or of a more serious character than the offense for which the defendant has been convicted.

4. Protective orders.

Where a person is convicted in a member nation of a violent or sexual offense against a person who, at the relevant time, was a child, lineal or lateral descendant, spouse, civil partner, legal ward, or cohabitant of the defendant, the court may, in addition to any punishment imposed by virtue of the conviction, issue an order imposing such restrictions on the defendant as it deems necessary to ensure the victim's protection from the defendant or from any person associated with the defendant. The court shall presumptively issue such an order, unless of the belief that doing so would be manifestly unnecessary in light of all the circumstances. Such order shall be for a term sufficient (but not greater than necessary) to prevent further abuse, and the beneficiary of such order shall have a legally-recognized interest in its enforcement. In the event that the underlying conviction is set aside, the order shall be quashed.

5. Housing and benefits for victims.

The victim of a violent or sexual offense shall, if a cohabitant of the defendant, be provided with housing separate from and independent of the defendant on request. In any such case, the victim shall not be liable to the defendant or an agent of the defendant for any fee arising from early termination of a lease, or any similar penalty. And no such victim shall lose any government-granted benefit granted to or by virtue of the convicted abuser.



This is the discussion thread. To cast your vote, go HERE

[Pantso]

Can anyone who reads legalese better than I summarize section 3? I wasn't able to parse it.

[Lenlyvit]

Jun 12, 2023 21:10:13 GMT -5 Pantso said:

Can anyone who reads legalese better than I summarize section 3? I wasn't able to parse it.

That one confuses me as well.

[Vivolkha]

I generally lean For. I do, however, have reservations with clause 5, as it does not include provisions for poorer member states which might not be able to afford the clause's mandates. The extremely vague "no such victim shall lose any government-granted benefit granted to or by virtue of the convicted abuser" could be problematic in the future.

Jun 12, 2023 21:10:13 GMT -5 Pantso said:

Can anyone who reads legalese better than I summarize section 3? I wasn't able to parse it.

In hopefully-more-understandable-English, it reads:
"When a person (aka the defendant) is convicted of domestic abuse, and the conviction relied on the criminal actions (presumably of domestic abuse) of a third person, the court shall permit the defendant to offer evidence that their domestic abuse was carried under threat of that third person (e.g. under coertion), and that not carrying out such domestic abuse would've resulted in more harm".

Two examples that come to mind where this clause would apply:
- Denial of help to a domestic abuse victim because the abuser is threatening you with death (if such denial is criminalized)
- A sibling attacking another under orders of their abusive parent, because disobeying the order has a credible risk of the parent murdering them both

EDIT: "Hoe should the Islands vote?" Lenlyvit you might want to fix that

[Pantso]

Substituting "domestic abuse" for "a violent or sexual offense against a person who, at the relevant time, was a child, lineal or lateral descendant, spouse, civil partner, legal ward, or cohabitant of the defendant", we get

Where a person is convicted of domestic abuse, and such conviction relied on any theory of criminal liability involving a person other than the defendant, the court shall permit the defendant, before sentencing, to offer evidence that:

a. the defendant engaged in the criminal conduct as a result of the actual or threatened actions of such other person; and

b. such actions, if actually carried out, would be expected to be worse or of a more serious character than the offense for which the defendant has been convicted.

I think "and such conviction relied on any theory of criminal liability involving a person other than the defendant" means there's a third party involved who is also liable. So if a person is convicted of domestic abuse, but the conviction depends on the presence of a third party, the defendant may try to get the sentence reduced by showing that the third party was going to do *worse* than what the defendant was convicted of doing. I'm having difficulty imagining a scenario where this would apply but it seems like a reasonable approach *if* such a scenario would come up.

The Republic of Pantso will change its vote from Delegate's Prerogative to For until someone can shine more light on the matter.

[Pantso]

Jun 13, 2023 5:24:51 GMT -5 Vivolkha said:

I generally lean For. I do, however, have reservations with clause 5, as it does not include provisions for poorer member states which might not be able to afford the clause's mandates. The extremely vague "no such victim shall lose any government-granted benefit granted to or by virtue of the convicted abuser" could be problematic in the future.

Jun 12, 2023 21:10:13 GMT -5 Pantso said:

Can anyone who reads legalese better than I summarize section 3? I wasn't able to parse it.

In hopefully-more-understandable-English, it reads:
"When a person (aka the defendant) is convicted of domestic abuse, and the conviction relied on the criminal actions (presumably of domestic abuse) of a third person, the court shall permit the defendant to offer evidence that their domestic abuse was carried under threat of that third person (e.g. under coertion), and that not carrying out such domestic abuse would've resulted in more harm".

Two examples that come to mind where this clause would apply:
- Denial of help to a domestic abuse victim because the abuser is threatening you with death (if such denial is criminalized)
- A sibling attacking another under orders of their abusive parent, because disobeying the order has a credible risk of the parent murdering them both

EDIT: "Hoe should the Islands vote?" Lenlyvit you might want to fix that

Thanks!

[Lenlyvit]

Jun 13, 2023 5:24:51 GMT -5 Vivolkha said:

I generally lean For. I do, however, have reservations with clause 5, as it does not include provisions for poorer member states which might not be able to afford the clause's mandates. The extremely vague "no such victim shall lose any government-granted benefit granted to or by virtue of the convicted abuser" could be problematic in the future.

Jun 12, 2023 21:10:13 GMT -5 Pantso said:

Can anyone who reads legalese better than I summarize section 3? I wasn't able to parse it.

In hopefully-more-understandable-English, it reads:
"When a person (aka the defendant) is convicted of domestic abuse, and the conviction relied on the criminal actions (presumably of domestic abuse) of a third person, the court shall permit the defendant to offer evidence that their domestic abuse was carried under threat of that third person (e.g. under coertion), and that not carrying out such domestic abuse would've resulted in more harm".

Two examples that come to mind where this clause would apply:
- Denial of help to a domestic abuse victim because the abuser is threatening you with death (if such denial is criminalized)
- A sibling attacking another under orders of their abusive parent, because disobeying the order has a credible risk of the parent murdering them both

EDIT: "Hoe should the Islands vote?" Lenlyvit you might want to fix that

I can't edit the poll without getting rid of it now that some people have voted. If you're fine with that, and voting again, I can fix the poll. That's what I get for hurrying on it.

[Jabberwocky]

Maybe not perfect, but a step in the right direction. #3 just gives the perpetrator a chance to defend himself.

[Vivolkha]

Jun 13, 2023 8:24:45 GMT -5 Lenlyvit said:

Jun 13, 2023 5:24:51 GMT -5 Vivolkha said:

I generally lean For. I do, however, have reservations with clause 5, as it does not include provisions for poorer member states which might not be able to afford the clause's mandates. The extremely vague "no such victim shall lose any government-granted benefit granted to or by virtue of the convicted abuser" could be problematic in the future.
In hopefully-more-understandable-English, it reads:
"When a person (aka the defendant) is convicted of domestic abuse, and the conviction relied on the criminal actions (presumably of domestic abuse) of a third person, the court shall permit the defendant to offer evidence that their domestic abuse was carried under threat of that third person (e.g. under coertion), and that not carrying out such domestic abuse would've resulted in more harm".

Two examples that come to mind where this clause would apply:
- Denial of help to a domestic abuse victim because the abuser is threatening you with death (if such denial is criminalized)
- A sibling attacking another under orders of their abusive parent, because disobeying the order has a credible risk of the parent murdering them both

EDIT: "Hoe should the Islands vote?" Lenlyvit you might want to fix that

I can't edit the poll without getting rid of it now that some people have voted. If you're fine with that, and voting again, I can fix the poll. That's what I get for hurrying on it.

Ah, whatever. We'll take it as a funny misspelling

Jun 13, 2023 10:33:21 GMT -5 Jabberwocky said:

Maybe not perfect, but a step in the right direction. #3 just gives the perpetrator a chance to defend himself.

Eh. For one, it is not stated that presenting such proof exonerates the perpetrator. For another, conclusingly proving that the perpetrator acted under pressure of another abuser and that not doing so would've resulted in a worse outcome is difficult. The resolution forces the court to give the perpetrator an opportunity to present such evidence (which already only applies to very specific scenarios) but the court still has the authority to reject the evidence if it's not compelling enough.

[Pantso]

Eh. For one, it is not stated that presenting such proof exonerates the perpetrator. For another, conclusingly proving that the perpetrator acted under pressure of another abuser and that not doing so would've resulted in a worse outcome is difficult. The resolution forces the court to give the perpetrator an opportunity to present such evidence (which already only applies to very specific scenarios) but the court still has the authority to reject the evidence if it's not compelling enough.

And if I read it correctly, that opportunity only affects sentencing, not the guilty or not guilty verdict.

[Vivolkha]

Jun 13, 2023 16:48:06 GMT -5 Pantso said:

Eh. For one, it is not stated that presenting such proof exonerates the perpetrator. For another, conclusingly proving that the perpetrator acted under pressure of another abuser and that not doing so would've resulted in a worse outcome is difficult. The resolution forces the court to give the perpetrator an opportunity to present such evidence (which already only applies to very specific scenarios) but the court still has the authority to reject the evidence if it's not compelling enough.

And if I read it correctly, that opportunity only affects sentencing, not the guilty or not guilty verdict.

Yeah, that's precisely my first point

[Zebastani]

This seems quite an interesting way of setting out a General assembly proposal, however it seems like a good way to start although I have my beliefs that this might be repealed and rewritten, especially the sector 3 part