THEORETICAL ASPECTS IN THE FORMATION OF
PEDAGOGICAL SCIENCES
International scientific-online conference
18
LEGAL MODELS FOR COMBATING DOMESTIC VIOLENCE
Bobokulov Hamid Makhmadustovich
Independent researcher at Tashkent State University of Law
E-mail: BKM@gmail.com
https://doi.org/10.5281/zenodo.14988209
Abstract:
This study analyzes the concepts of various legal models for
combating domestic violence and their practical significance. The author studies
the criminal justice model, civil law model, public health model, and restorative
justice model, describing their role and effectiveness in eliminating domestic
violence. Each model is based on different theoretical approaches and practical
methods, and due attention is paid to specific aspects of domestic violence. This
study shows how each model affects the legal process and the possibilities of
achieving effective results by complementing each other.
Keywords:
criminal justice model, civil justice model, public health model,
restorative justice model.
By the end of the last century, the fight against domestic violence had
entered a new phase, influenced by various political and social events. To date,
various legal models have been formed in legal practice and literature around
the world to combat domestic violence. These models are based on various
theoretical and doctrinal views and represent a system ranging from the content
of domestic violence to the mechanism for combating it. The content and
structure of these models cover the phenomenon of domestic violence in
different contexts and criteria and do not present a single picture, but rather
complement each other and help achieve overall effectiveness. We will consider
these models below.
The Criminal Justice Model
focuses on combating domestic violence
through criminal legal mechanisms, distinguishing it as a separate criminal
offense, as well as creating separate mechanisms for prosecution, investigation
and punishment in the fight against it. The scientific and theoretical literature on
this model, including the scientific research of the scientist Buzawa, was devoted
to the criminal-legal attitude and response, that is, to recognizing the social
danger of domestic violence, distinguishing it from other forms of violence by its
important features, identifying it through special socio-legal measures and
punishing it more effectively[1].
The main feature of this model is that, according to it, it is necessary to
investigate this act and bring the accusation to court, regardless of the victim's
wishes (Prosecution Policies). This completely removes domestic violence from
the sphere of privacy and family life and turns it into a socially dangerous
THEORETICAL ASPECTS IN THE FORMATION OF
PEDAGOGICAL SCIENCES
International scientific-online conference
19
phenomenon. That is, if a domestic violence incident is detected in a healthcare
process or in another form, prompt information should be transmitted to law
enforcement agencies, the relevant special div or official (prosecutor) should
carry out and support the state prosecution in this regard, initiate an
investigation and bring it to justice. Another political and legal mechanism that
makes this model attractive is the Mandatory Arrest Policies.[2] This political
and legal mechanism envisages the mandatory arrest of the perpetrator in cases
of clear and obvious domestic violence, thereby preventing the continuation of
violence and illegal actions aimed at persuading the victim. In addition, the
establishment of separate courts specifically for criminal and administrative
cases related to domestic violence is also proposed within the framework of this
model, which aims to overcome the traffic in the courts and the
misunderstandings that the victim may face, the difficulties with evidence and
proof, and other traditional and women-discriminatory phenomena.
The Civil Law Model
, in addition to criminal law mechanisms, provides for
the recovery of damages, the issuance of protection orders, the prompt and non-
violent resolution of family legal issues (housing, children, etc.), and the fight
against violence through civil law[3]. It should be emphasized that this model
includes not only the mechanisms of civil law in our national legal doctrine, but
also the institution of violence prevention, such as a protection order. The main
reason why all of this is called civil law in legal literature and foreign (mainly
US) practice is that the orders are issued precisely on the basis of marital
relations and other family ties, and they are not directly criminal or
administrative measures. In addition, other important elements in this model
include important events, actions, and facts such as divorce due to domestic
violence, division of property, and discrimination against women in deciding
who children should live with, taking into account their influential (relatively
powerless, susceptible) social position.
The Public Health Model
, on the other hand, is a health-focused approach
that emphasizes the harm (mental and physical) to women and children from
domestic violence, and emphasizes this from a health perspective. One of the
most influential scientific studies in this regard is the work of scientist Whitaker,
who believes that the most important tasks in combating domestic violence are
to conduct regular health examinations, monitor and treat health damage, keep
separate records, and examine injuries in cases of domestic violence.[4] This
scientific direction, starting with early screening and health monitoring of minor
injuries, is important not only for preserving the health of victims, but also for
THEORETICAL ASPECTS IN THE FORMATION OF
PEDAGOGICAL SCIENCES
International scientific-online conference
20
identifying crimes and imposing fair and proportionate punishment on them,
since the difficulty of combating domestic violence through traditional legal
mechanisms lies not in promoting health, but in promoting traditional cultural
concepts (for example, the belief that the supremacy of men in the family should
be ensured in any form). Similarly, O'Doherty's ideas about the role of screening
in combating domestic violence emphasize that legal mechanisms should pass
through the line of health protection and control [5]. This is a very important
fact, since the structure of the crime of domestic violence is directly related to
physical injury, and the object of the structure of domestic violence in national
law is also health. Therefore, it is also correct that the current legal mechanism
for combating domestic violence is connected precisely through public health
and control.
The next legal model is
the Restorative Justice Model
, in which the main
goal is to punish the perpetrator and restore the rights of the victim in cases of
domestic violence. For example, Braithwaite[6], one of the influential scholars of
the theory of restorative justice, emphasizes that if rights are not restored, the
effectiveness of the punitive, that is, punitive system will decrease, and therefore
restorative justice is superior in all respects. Also, the most important conditions
for restorative justice in domestic violence are the relative equality of the
parties, the real possibility for the victim to demand restoration of rights, and
the absence of pressure from the perpetrator and his relatives, especially the
victim's relatives and law enforcement agencies. In national law, judicial practice
also clearly shows the widespread use of the most basic form of restorative
justice in cases of domestic violence - the institution of reconciliation. Although
domestic violence criminal cases are initiated mainly after administrative
liability (except for the more serious ones), it seems that violence is not
committed for the first time and in this case, reconciliation mechanisms should
be studied very carefully. In addition, many human rights activists, as well as
studies[7], emphasize that they are concerned about the use of the institution of
reconciliation in domestic violence criminal cases, especially in the second and
more serious parts. Although these concerns seem justified, the lack of
alternative measures such as restorative reconciliation also makes us think that
relying solely on punitive legal mechanisms cannot be effective. The discussion
of this model is important from the point of view of understanding the legal
mechanism of domestic violence crime, its context and goals. Because without
this, it is difficult to have a proper approach to correcting the behavior of the
THEORETICAL ASPECTS IN THE FORMATION OF
PEDAGOGICAL SCIENCES
International scientific-online conference
21
abuser, influencing the violence (including punitive goals such as punishment
and showing the consequences to others) in the fight against domestic violence.
References:
1.
Buzawa, Eve S., and Carl G. Buzawa. Domestic Violence: The Criminal
Justice Response. SAGE Publications, 2017.
2.
Sherman, Lawrence W., and Richard A. Berk. "The Specific Deterrent
Effects of Arrest for Domestic Assault." American Sociological Review, vol. 49,
no. 2, 2015, pp. 261-272.
3.
Logan, T. K., et al. "The Impact of Protective Orders on Victim and Partner
Outcomes." Journal of Interpersonal Violence, vol. 24, no. 4, 2009, pp. 675-692.
4.
Whitaker, Daniel J., et al. "A Critical Review of Interventions for the
Primary Prevention of Perpetration of Partner Violence." Aggression and Violent
Behavior, vol. 11, no. 2, 2006, pp. 151-166.
5.
O’Doherty, Lorna J., et al. "Screening Women for Intimate Partner Violence
in Healthcare Settings." Cochrane Database of Systematic Reviews, 2015.
6.
Braithwaite, John. 2002. Restorative justice & responsive regulation.
Oxford University Press.
7.
Alieva, Kamola, Rashidova, Dilbar, Choheli, Marina, Rakhimova, Minavar.
2022. Gender zo’ravonlik bo’yicha taqiqot natijalari: milliy tajriba va xorijiy
amaliyot. Scientific library. https://moiti.uz/oz/services/library/150
