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).
Alexandra Molitorisová and Ciarán Burke,
The Istanbul Convention’s Evidentiary Requirements in the Light of Laws on Self-Defence and Mitigating Criminal Responsibility,
28 U. MIA Int’l & Comp. L. Rev.
Available at: https://repository.law.miami.edu/umiclr/vol28/iss2/3