In the past, despite the gravity of domestic violence and child abuse, they had been ignored as 'private' problems. For this reason, the state refrained from intervening such problems. However, the seriousness of domestic violence and child abuse crimes come to the fore recently and grab attention of the society, we witness more broad and active discussions on the need for active and proactive involvement of state agencies to enhance 'domestic safety'. Those who conduct violence acts against his or her family members or others are offenders and criminals from the criminal justice perspective. In the past, most domestic violence cases had been dealt with only after violence acts occurred within the frame of criminal justice. Nonetheless, with raised awareness across the society that proactive and preventive measures by state agencies are required so that lives as well as physical safety of victims, witnesses, children and anyone else living in the home should be secured discussion on direct and indirect intervention by law enforcement agencies, for example, entering a private premises without warrant or possibility of instant separation victims from the offender by means of arrest, has accelerated.
To protect victims of domestic violence and child abuse, not only latter measures under the criminal justice but also earlier intervention under the police act or administrative sanctions should be considered at the same time. However, this is a fact that there are differences in ultimate purposes of earlier and latter measures; in detail, the earlier intervention is a proactive measures taking against risk of crime occurrence while the latter actions is for criminal investigation, it is needed that the priori and the posteriori measures should be executed based on different principles of laws. Under this premise, the paper analyzed main obstacles and limitations of police intervention for domestic violence and enhancing the safety of victims under the existing law. Then it presented suggestions about revising the existing criminal law and police act so as to improve intervention for domestic violence or child abuse instances by taking into account of principle of the police balance and promote effectives and efficiency of victim protection.
To this end, this paper examined main limitations of police intervention for domestic violence incidents under existing laws from perspectives of criminal law as well as the constitution and administrative law. It compared findings of research with similar cases of other major countries the UK, Germany, France, the U.S, and Japan, and then explored legislations and legal system of them. In addition, FGI empirical research and a survey targeting at the general public were carried out to learn whether suggestions about existing limitations of police intervention would be well accepted by people.
To begin with, powers of police in responding to domestic violence or child abuse incidents could be summarized as dispatch to the scene, emergency measures, urgent Ad Hoc measures, and Ad Hoc measures. dispatch to the scene is provided in Article 9-4 of Special Act for the Punishment of Domestic Violence and Article 11 of the Act on Special Cases Concerning Punishment of Child Abuse Crime while emergency measures, urgent Ad Hoc measures and Ad Hoc measures are stipulated in Article 5, 8, 8-3 and 29 of the act for domestic violence and Article 12, 14, and 19 of the act on child abuse crime.
Despite those provisions on crimes of domestic violence or child abuse, there are two reasons why the police faces limitations of early intervention in practice and experience low efficiency of intervention measures. First, compulsory measures for performance of police officers duty have limitations. To prevent any further violent acts by the aggressor to victims of domestic violence or child abuse, it is required to separate them. Under provisions of urgent Ad hoc measures, the police is able to separate the offender from victims, however, problems lie on the fact that fines on negligence is imposed on the offender who violated the urgent Ad Hoc measures, however, the punishment is in short of achieving the ultimate goal of direct and proactive prevention of subsequent violence.
Second, interpretation of acts, rules and regulations on police activities and its roles overly focus on acts of law enforcement. In provisions on acts of law enforcement under the current law, acts under the police law and those under the criminal justice law are mixed. However, large numbers of those provisions are, in principle or in practice, are interpreted as defining police acts on law enforcement and applied to those kind acts based on interpretation on related provisions. The reason of interpreting and applying legal provisions in such way is that usually, the police responses after reporting a crime and legal sanctions or punishment on offenders are eventually connected to criminal penalties or safety measures.
The problem with predominantly interpreting police powers as law enforcement is that it is practically hard for the police to prevent or early respond to domestic violence or child abuse. In addition, taking into account the fact that there is no clear or uniform standards for dispatched police officers to the scene could apply when they make a decision on whether they should enter into a private premises, the current legal provision interpretation excessively focusing roles of the police on law enforcement might make dispatched officers indecisive at the time when they need to response actively to domestic violence or child abuse incidents. Take an example that dispatched police officers are tried to enter into a private house or premises even though the victim involved makes explicitly objection to involvement of the police. In this case, acts by the dispatched officers to the scene are risk of being interpreted as a breach of the peace, but it is highly likely that such interpretation results in reducing possibility of early intervention.
Regarding such limitations to responding to domestic violence or child abuse by the police under the existing law, the paper examined measues and responses by police offciers in other major countries.
In the U.K, where domestic violence or child abuse occurs, the police are able to enter into the private premises and then take strict measures such as issue of protection order (Domestic Violence Protection Notice, DVPN) implementation of protection order or enforcement actions against the offender. The law allows the police to issue DVPN, which may be issued by an authorised Police Superintendent which sets out prohibitions that, in effect, bar a suspected perpetrator from returning to a victim’s home and/or contacting the victim. If a perpetrator is violated any required conditions on the protection order, police forces can arrest the perpetrator right away. It could say that such powers of police forces enhance efficiency of police responses to domestic violence or child abuse.
In Germany, the Police Act stipulates responses by the police to domestic violence and child abuse one by one. Characteristics of German police law is any action taken by the police is not criminal measures but administrative ones. In other words, the law does not expect involvement of the prosecution but gives more power to he police to deal with domestic violence or child abuse following simple administrative measures. For this reason, police forces, in accordance with each state police law, are able to make an administrative order to the aggressor, for example, eviction or move-out order.
In France, it is required to address domestic violence and child abuse through the general provisions of the Criminal Procedure Act rather than the Special Act. Police officers who are dispatched to the scene are allowed to enter into and search the private premises and the house not only during the day and but also night based on their own subjective judgment, and they police could take temporary isolation measures. In case where emergency interim measures are necessary, police officers on the scene may implement protection of detention on their own determination before interim measures are taken. In means that the police have the power to separate victims from suspects or offenders of domestic violence or child abuse.
In Japan, the word spousal violence, instead of domestic violence, is used, thereby reducing the confusion that may arise from overlapping concept or definitions of domestic violence and child abuse, which may appear in our legislation. As for spousal violence, the court issues a protection order by victims' application. The court order includes eviction order, restraining order, ban on using telecommunications and so on. prohibition of quarantine, quarantine, telecommunications, etc.) by the victim's application. In the case of child abuse, the staff of the child counseling center, under the jurisdiction of the prefectural governor, is required to handles restriction measures such as issuance of a notification, request for attendance, investigation of entrance, investigation and visitation as well as issuance of restraining order.
In the U.S, pro-arrest or mandatory arrest policy is widely accepted and implemented and allow warrantless arrest of suspects or offender of domestic violence or child abuse. More than half of states provides mandatory arrest in state laws so as to enhance efficiency of responses by police as law enforcement agent to domestic violence and child abuse. Furthermore, in Wisconsin, police officers are immune from any civil liabilities or criminal responsibilities which might caused by actions the police officers took during responding to domestic violence or child abuse.
Compared to Korean legislation or laws, foreign legal system and laws grant much more leeway to police officers who are dispatched and respond to domestic violence or child abuse crimes for the purpose of guaranteeing the safety of victims of those crimes with mandatory measures. In addition, the legal systems and laws in those countries above mentioned do not distinguish between emergency measures and interim measures, which is advantageous to effectively prevent dangerous or violent act of the perpetrator by allowing implementation of police power and detention under the responsibility of the police officer. On the other hand, Korean legislation distinguishes between urgent Ad hoc measures and Ad Hoc measures. Because of those distinguished provisions, the police, first, confirm whether the suspect or the offender violates the urgent Ad hoc measures and then apply to the prosecutor for Ad hoc measures, finally the court makes a decision on the application. Usually the procedures take up to 48 houses during the time period, the victim(s) of domestic violence or child abuse are exposed to risk of subsequent violence. For this reason, it seems that the legislation of other countries present ways to deal with problems of subsequent violence.
Through survey and FGI, opinions of experts, field police officers, and citizens on limitations of current laws and legal system about domestic violence and child abuse were collected and analyzed. In a survey, 44.1% of the expert respondents answered that allowance to entering into the private premises without warrant is needed to improve the existing laws and legal systems for the purpose of enhancing the effectiveness of the police's initial response. In addition, 64% of the respondents thought that police should take precedence over counseling agencies or child protection agencies in involving those two types of crimes.
However, 85.5% of police officers at the front line replied that not the police but the expert groups should intervene in those crimes prior to the police. Their response was quite different from those of experts it may explain with psychological burden on the police. Police officers may perceive direct intervention in domestic violence or child abuse cases as work burden, and at the same time, they do not want to take any responsibility for unexpected consequences of intervention.
Contrary to reponses of the police officers, 90.5% of the ordinary respondents to the survey thought that the state intervention needed to be strengthened further. In particular, 74.3% of the respondents answered that even though police officers who are dispatched to the scene had difficulty in confirming objective evidence, and even if the victims did not want intervention by police, the police should enter into the private premises such as house and check whether any incident of domestic violence or child abuse really occurred or not. In addition, if there was report of domestic violence or child abuse in the past, and a possibility of domestic violence and child abuse crimes, the police should enter into the private premises and check the situation (83.9%).
Bases on the survey result, it could assume that the general public take positive as well as generous stance on police intervention to prevent domestic violence or child abuse crimes. However, analyzing the FGI results for police officers, police officers felt that it was not easy to determine whether they should intervene directly by entering into the scene without warrant, and it was often difficult to get cooperation from the actual residents. In the case of emergency measures to separate the victim and perpetrator, each police station respond to domestic violence or child abuse cases in different ways, and it was confirmed that the emergency Ad Hoc measures were operated only in an emergency. Furthermore, the respondents answered that regarding urgent Ad hoc measures, the time spent in the process of passing through the examinations by prosecutors and the judge's decision was ineffective in protecting the victim(s).
With findings of literature research on the existing laws, comparative research on foreign legislation and legal system, and survey on experts, the police and the general public, results of FGI, suggestions for early intervention by the police in domestic violence or child abuses cases as well as improving the current las are as follows.
First of all, the role of the police shall be define explicitly as the main agent of early intervention. Under Special Act for the Punishment of Domestic Violence, no other law enforcement agency is specified to respond to domestic violence incident except the police. Meanwhile, for child abuse cases, the act on child abuse crimes separates intervening entities as law enforcement agency and child protection agency. It provides that "a judicial police officer or an employee of a specialized child protection agency who moves to the scene of a crime of child abuse or discovers the scene of a child abuse crime shall take emergency measures without delay for the protection of a child victim." Urgent Ad Hoc measures shall be taken upon request of a child victim, his/her legal representative, attorney-at-law or the head of a specialized child protection agency.
Contrary to domestic violence crimes, intervening entities are separated under the law. The main reason of institution separation could be explained by differences in characteristics of those two types of crimes. Specifically, in cases of domestic violence by a spouse, the victim is an adult with the right of self-determination and there may be less room for the state to be intervene. Therefore, other entities other than the police would be excluded. On the other hand, in the case of children, large number of under-aged victims are controlled by the perpetrator in the physical and mental aspects. For this reason, besides intervention of law enforcement agency, cooperation of other specialized institutions is required to respond child abuse crime.
When each entity's intervention works properly as planned, separation of entities could affect positively in victim protection. Otherwise, legal provisions would provide each entity with excuses for failing carrying out their duties properly or make them shift their responsibility to each other, which may result in widening the blind spot of victim protection because their failure of functioning property may not be interpreted as negligence of duties under the current law.
Second, what shall be improved is the system of entrance into the private premises by the police. Despite the fact that existing law provides police officers dispatched to the scene with legal grounds for entering into the private premises like house without warrant, 36.7% of police officers responded that the police could enter into house without warrant, if necessary. The answer showed that the current law does not used as means to justify police's warrantless entrance into house for victim protection at the scene.
To deal with those issues, it is necessary to amend the current provisions on the on-site entrance in order to clearly define the entrance by the police as function of administrative police (Verwaltungspolizei), which means that the police could enter into private premises without warrant. If the current provision on the entrance to house is revised as an administrative police function, the intervention of a police officer in domestic violence incidents can be construed as mandatory response rather than acts at the police officers' discretion, and the burden of the police officers on possible civil liability or criminal responsibility after the intervention will be reduced. However, in this case, it is needed to enumerate all requirements for the exercise of the power of police intervention as specifically as possible in the Act.
Third, the urgent Ad Hoc measures also are needed to be revised to enhance efficiency. The current law only provides administrative fines are imposed on offenders who violate conditions of the urgent measures and fines are not effective to deter the crime. Furthermore, in some cases, the victim not the offender may pay the fines, so the amount of fine could cause the victim secondary economic damages.
The significance of urgent Ad Hoc measures is the police could separate the victim and the offender at their discretion so as to prevent recurrence of domestic violence or child abuse crime. To achieve efficiency of those measures as planned, the police should implement their power such as arrest of suspect or offender to those who violate urgent measures. In practice, police forces in Germany and France, could put the aggressor in custody up to 48 houses from the time when the domestic violence was initially reported or after handling the complaint. In the U.K, the police forces are able to arrest the offender who violated conditions of Domestic Violence Protection Notice (DVPN) right after or within 24 houses of the notice was informed even before the court makes Domestic Violence Protection Order (DVPO). In the United States, many states stipulate mandatory arrest from the outset, and it usually imposes a 72-hour restraining order on the arrested offender or aggressor of domestic violence. The mandatory arrest provision serves as an effective way to separate the offender from the victim. However, there is no sanction that accompanies these physical tactics in Korean legal system, so comparative legal review and improvement are required to improve the related laws and legal systems.
In order to ensure the effectiveness of urgent Ad Hoc measures, that is to say, separation of the victim and the offender or prevention of subsequent violence acts by the offender against the victim, the current law which distinguishes urgent Ad hoc measures and Ad Hoc ones should be revised to overcome inherent shortcomings. Laws of the UK, Germany, France, and the United States do not distinguish between legislation on emergency measures and legislation on ad hoc measures.
Korean law distinguishes urgent Ad Hoc measures and Ad Hoc ones in order to prevent risks of abuse of power by the police. During the time period of going through all procedures from application by the police, confirmation by the prosecutors to the court decision, the victim and the offender are not separate under the law. Against this back drop, it is very worried that victims may exposed to secondary violence by the offender during the time period. In some cases where the prosecutor dismisses the application by the police, there is no protective measures for the victim left, which has been pointed out as limitations of the current system.
Therefore, it is necessary to unify urgent Ad hoc measures and Ad hoc measures which are distinguished in the current legal system. Or other ways of improving the current system is to allow the police directly apply to the court for Ad Hoc measures or the police serve administrative police function and could determine separation of victim and the offender under their power under the current dual Ad hoc measures system.
Suggestions to improve the current system include warrantless entrance into the private premises or physical confinement of the offender by the police. Considering characteristics of domestic violence and child abuse crimes, warrantless entrance into house or other private premises or physical detention is required. These suggestions on improvements are only justified by the principle of police proportionality. In other words, the principle of police proportionality should be maintained in a strict manner in order to prevent the rule of warrant from being bypassed or ignored.
Therefore, discussion and suggestion on improving the current system shall includes control measures. One example of control measure is to legislate a law which requires police officers dispatched to scene of domestic violence or child abuse to record what happen at the scene from the time they arrive at the scene and all process with advanced Information Communication technologies.