It is predominantly women who suffer domestic violence. The perpetrator is usually the current or former partner. Statistical surveys carried out in recent years have shown that around 20 per cent of women between the ages of 16 and 85 have already experienced violence in their relationship or are still experiencing it. Children and young people, too, often suffer: they are either silent witnesses of the abuse or themselves become the target of the violent partner. The Protection against Violence Act (Gewaltschutzgesetz, GewSchG), which came into force on 1 January 2002, is intended to provide special protection for people against all forms of violence in the private domestic environment. The person, or partner, from whom the risk of violence emanates can be ordered to leave the shared home, while the victim of domestic violence is allowed to remain there. People at risk therefore no longer have to leave the shared household in order to seek protection, for example in a women’s refuge.
It is true that acts of violence are as a rule also punishable under core criminal law (as bodily harm, coercion, unlawful deprivation of liberty and so on). Criminal proceedings, however, do not offer preventive protection, but only repressive punishment of the offences. The Protection against Violence Act, by contrast, creates a legal basis for protection orders issued by the family court in cases of intentional and unlawful injury to body, health or liberty, including the threat of such injury.
1. Specific measures
Anyone who has become a victim of violence can, in addition to or instead of initiating criminal proceedings, have recourse to the civil-law protection available under the Protection against Violence Act. This includes, among other things:
- protection orders,
- the allocation of the shared home,
- damages and compensation for pain and suffering,
- a court ruling on custody of the couple’s children
- the suspension or restriction of the right of contact with the children
All of these have to be applied for.
In the case of intentional bodily harm or unlawful deprivation of liberty, or the threat of such acts, an order barring entry to the home can be imposed on the violent partner under § 1 para. 1 and 2 GewSchG. In addition, it can be enforced by way of an urgent court order that the shared home be allocated to the victim for their sole use for a limited period (in certain circumstances also permanently) (§ 2 para. 1 and 2 GewSchG). In certain circumstances, however, the perpetrator may demand payment from the injured person or the person at risk for the use of the home, in so far as this is equitable (§ 2 para. 5 GewSchG).
In the case of other forms of harassment as well, such as persistent stalking (Nachstellung, § 238 StGB), the family court can prohibit the violent person from approaching the person concerned or their home, from continuing to telephone them persistently or from molesting them in any other way (§ 1 para. 2 GewSchG).
The court may also order further measures against the violent person in order to protect the victim. The protective measures available include, among other things, prohibitions on:
- approaching the victim’s home to within a specified radius
- being in places where the victim regularly spends time
- making contact of any kind with the injured person
Representation by a lawyer in order to obtain these protective measures is not mandatory. Particularly in complex cases, which also involve further legal questions, it is nevertheless advisable to instruct a lawyer.
2. Consequences of a breach
If the violent other person breaches the prohibitions and protective measures obtained, they commit a criminal offence (§ 4 GewSchG). In such a case the Act provides for imprisonment of up to two years or a fine. Breaching an obligation arising from a court-approved settlement is also punishable (§ 4 sentence 1 no. 2 GewSchG). The Protection against Violence Act is thus at the same time part of supplementary criminal law (Nebenstrafrecht).