The Istanbul Convention’s Evidentiary Requirements in the light of Laws on Self-Defence and Mitigating Criminal Responsibility

47 Pages Posted: 18 May 2021

See all articles by Alexandra Molitorisova

Alexandra Molitorisova

University of Bayreuth, Faculty of Life Sciences; Masaryk University - Faculty of Law

Ciarán Burke

University of Jena - Friedrich Schiller Universität

Date Written: May 15, 2021

Abstract

The article argues that the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention), a comprehensive international treaty, may necessitate deep changes in its Parties’ domestic legal regimes, including reconceptualising laws on circumstances excluding or mitigating criminal responsibility and related evidentiary issues in domestic violence cases. The article first presents the theoretical underpinnings of a gendered understanding of violence and criminal laws. It then proceeds to present different approaches to law reform that have contemplated gendered laws on circumstances that exclude criminal responsibility, mostly in the context of homicides committed by battered women. Traditional approaches to law reform demonstrate how a gendered reconsideration of a single legal concept requires reconsideration of all legal principles governing the structure of that concept and causes a cascade effect. This, in turn, requires specific evidentiary considerations, including the context in which a crime is perpetrated, namely the dynamics of abusive partner relationships, social framework evidence, and the ‘demystification’ of violence against women. The article suggests that the Istanbul Convention’s emphasis on investigation and evidence and the promotion of a "gendered understanding of violence" may potentially open the question of criminal responsibility of female offenders by elevating gendered rules of evidence to gendered criminal law provisions (in a reverse cascade effect).

Keywords: evidence, Istanbul Convention, domestic violence, self-defence

Suggested Citation

Molitorisová, Alexandra and Burke, Ciarán, The Istanbul Convention’s Evidentiary Requirements in the light of Laws on Self-Defence and Mitigating Criminal Responsibility (May 15, 2021). University of Miami International & Comparative Law Review, Vol. 28, No. 2, 2021 Forthcoming, Available at SSRN: https://ssrn.com/abstract=3846993 or http://dx.doi.org/10.2139/ssrn.3846993

Alexandra Molitorisová (Contact Author)

University of Bayreuth, Faculty of Life Sciences ( email )

Masaryk University - Faculty of Law ( email )

Veveri 70
Brno, 61180
Czech Republic

Ciarán Burke

University of Jena - Friedrich Schiller Universität ( email )

Furstengraben 1
Jena, Thuringa 07743
Germany

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