Acta Universitatis Lodziensis. Folia Iuridica, 109, 2024
https://doi.org/10.18778/0208-6069.109.01

Joanna Dutka^*

https://orcid.org/0000-0003-1100-3269

Considering the Juridical and Extra-Juridical Aspects of the Domestic Violence Relief System in Poland

Prawne i pozaprawne aspekty systemu przeciwdziałania przemocy domowej w Polsce

1. INTRODUCTION

The reasons for the persistence, scope, and severity of violence inside family and violence in intimate relationships are manifold. In this paper, I am going to explore different aspects of formal relief system, which aims to mitigate this problem.

The formal relief system constitutes more than just the conditions under which individual citizens may attempt to seek solutions for violence in their lives. It is also the locus where the patterns of the cultural interpretation of value – in this instance primarily the understanding of gender relations – are institutionalised (cf. Fraser, Honneth 2023). This is the context in which unfair patterns can be reinforced, but also one where they can be challenged. It is, therefore, unfortunate that globally:

(…) most government agencies misunderstand the nature of domestic violence, with the result that domestic violence becomes repetitive, cyclical, and, due to the lack of appropriate punitive measures, endorsed. This approach of inertia and ignorance on the part of states becomes systemic and intimate violence, which we perceive as private, develops a very public dimension. (Meyersfeld 2016, 19)

How does this pessimistic assessment fit the situation in Poland? The laws existing in Poland are neither optimal nor model; they certainly invite criticism and require further amendment, hopefully in the near future, but they still can be deemed reasonably adequate in the historical moment that we find ourselves in.^[1] However, there are other factors that hamper institutional response to violence.

Before I proceed, first, I clarify some key terms used in this paper. After some consideration, I decided to employ the term ‘domestic violence’ (DV) in order to keep it consistent with the recently updated Domestic Violence Prevention Act of 2005^[2] (DV Act – t.j. Dz.U. z 2023 r., nr 180, poz. 1493, z późn. zm.) in Poland and the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence of 2011 (Istanbul Convention – CETS 210; Dz.U. z 2015 r., poz. 961). The definition of DV includes, but is not limited to, various forms of intimate partner violence. Moreover, I will be using the term ‘abuse’ to denote the social phenomenon of reoccurring violence within a relationship, as well as the term ‘maltreatment’ to denote a crime that roughly corresponds to abuse of certain level of severity, characterised by excess, as defined in the Polish Penalty Code (PC – Dz.U. z 1997 r. , nr 89, poz. 555, Art 207).

Furthermore, I would like to underline that the terms ‘gender-based violence’, ‘violence against women’, and ‘domestic violence’ are overlapping, but not synonymous. Violence against women is a subcategory of gender-based violence, whereas DV is a heavily gender-related phenomenon, women are hardly the only victims.^[3] However, due to the gendered nature of the problem, it is impossible to tackle DV without tackling gender-based violence and discrimination.

The term ‘victim,’ mostly accepted in literature, is, however, not value-neutral. It is a stigmatised and oppressive identity, rejected by many people subjected to violence, who prefer to embrace a more empowering identity of a survivor.^[4] The problem here is that the stigmatisation of victimhood is an inalienable aspect of impediments in systemic response towards violence (Sweet 2019, 212). Consequently, in some contexts, the term ‘victim’ is the only adequate one.

The paper takes broad-scope approach to the problem of formal institutional measures of DV prevention rather than focus on a particular element of the system. The analysis is based on the study of available literature. It presents an outside perspective on the law, namely from the standpoint of the study of gender relations and violence. The interest in the formal institutional response to DV, including the law and legal practice, is founded on the thesis that violence is conditioned on patterns of cultural value interpretation, which can either be reinforced or subverted through institutional practices. Therefore, effective countermeasure strategies to violence require a reflexive transformation of said practices, which entails, among other things, a comprehensive understanding of both DV itself and that of the systemic formal institutional response to DV. This prompts the questions about the ways in which the system works sufficiently and in which it falls short.

Within the paper, I will present in corresponding sections the following issues: the general shape of the DV prevention and relief system in Poland (section 2), the examination of prevailing barriers for accessing formal assistance (section 3), common prosecution and trial practices (section 4), a discussion about the aims of violence relief and prevention (section 5), and the conclusion (section 6).

2. THE DV RELIEF SYSTEM IN POLAND IN BROAD OVERVIEW

The Polish DV relief system can be characterised as a two-track model. On the one hand, there is a criminal-justice track with its main legal basis in the Penal Code of 1997 (PC), especially Article 207 that criminalises the offences of the maltreatment of family members or other dependant persons. The Majority of domestic-violence-related convictions fall under this Article (Grzyb 2020, 171). However, depending on the allegations, several other Articles of the PC can be employed to penalise domestic violence perpetrators, such as Art. 197 or Art. 191, which define, respectively, rape and punishable threats (Majerek, Lubińska-Bogacka 2023, 224). In practice, Art. 207 is the principal legal instrument for addressing DV in Poland, which does not entail that the crime typified by Art. 207 is synonymous with DV. In fact, the Polish PC does not include a definition of such crime as ‘domestic violence’.^[5] It is important to note that Art. 207 pertains to all relationships where one party depends on another and is not limited to the domestic context; it includes, for instance, crimes in the institutions where some type of essential care is provided to the recipients, such as hospitals and nursing homes. On the other hand, not all DV cases qualify for the crime of maltreatment.

The other track is the so-called Blue Card [Pol. Niebieska Karta] procedure with its legal foundation in the Act on Counteracting Domestic Violence of 29 July 2005 (“DV Act”). Additionally, a number of different legal acts and regulations beside the PC and the DV acts delimit formal institutional response to DV, including the Civil Code (1964 – t.j. Dz.U. z 2021 r., poz. 1805), the Family Code (1964 – t.j. Dz.U. z 2020 r. poz. 1359), and legislation regulating the work of state agencies, such as social services and the police, which come in frequent contact with families affected by violence.^[6] The focus of the DV Act as well as the Blue Card procedure is violence prevention rather than penalisation. Consequently, the Blue Card Procedure provides possibility for a non-criminal investigation into relationships as well and assistance for families that are in an increased danger of the escalation of an internal conflict or crisis into violence.^[7]

This entire interconnected system is extensive. If the representatives of all those diverse branches – widely defined as social services, the police, the system of criminal and civil justice, education, and health care – are included and counted together, the number of people involved in the violence prevention system in Poland can be estimated at over a million people (Wrona 2016, 108).

Multiple state agencies and non-government organisations alike provide a range of various forms of assistance to individuals and families afflicted with DV, including assistance with legal matters, explaining the applicable legislation, writing or filling in legal documents, providing advice during litigation, etc., which can be obtained in Crisis Intervention Centres, [Pol. ośrodki interwencji kryzysowej] since 2004 and Municipal Information Consultation Centres [Pol. gminne ośrodki informacyjno-konsultacyjne] or Splacialised Family Violence Relief Centres [Pol. specjalistyczne ośrodki wsparcia dla ofiar przemocy w rodzinie] since 2005 (Majerek, Lubińska-Bogacka 2023). NGOs, such as the Women’s Rights Centre [Pol. Centrum Praw Kobiet], can perform similar functions in legal consultation and other areas of violence relief, reducing the risk of revictimisation (Nowacka 2020, 83).

The DV Act guarantees that victims have access to free-of-charge medical, psychological, and legal consultations as well as career and family guidance, crisis intervention and assistance, protection from further harms, restraining orders, shelter in specialised facilities, documented medical examinations of DV-related injuries, and assistance in acquiring long-term housing (DV Act Art. 3; Bajor-Stachańczyk 2023, 123). Unfortunately, those law-mandated provisions are not realised sufficiently. In particular, the number of specialised shelters is woefully inadequate; on average 2–3 such shelters exist in each voivodeship (Ombudsman’s Office 2020, IV C).

For the perpetrators, the DV Act introduces remedial-educational programmes (DV Act Art. 4; cf. Bajor-Stachańczyk 2023, 123). Such programmes implemented in Poland are based on the Daluth model (Uherek-Biernat, Zalewska-Łunkiewicz 2017, 44), which combines cognitive-behavioural treatment with feminist principles (Hamilton et al. 2013; cf. Pence, Paymar 1993). The fraction of perpetrators who attended remedial programmes is very small in comparison to the number of initiated Blue Card procedures (Uherek-Biernat, Zalewska-Łunkiewicz 2017, 44). The courts issue orders of compulsory participation in remedial programmes for perpetrators in only few percents of cases, while some districts [Pol. powiaty] do not run such programmes, do not prepare to develop them, and do not have personnel with relevant expertise (Jureczka 2022, 62). Courts’ unwillingness to issue remedial education and local governments’ failure to develop such programmes likely reinforce one another; from the perspective of local governments, there is “no point” to allocate resources to create remedial-educational programmes if the courts do not issue relevant orders, while the courts may be hesitant to issue orders when the options to fulfil them are so limited.

The Blue Card procedure reflects the postulates of integrated and comprehensive approach to violence. The procedure is run on the level of municipalities by an interdisciplinary team [Pol. zespół interdyscyplinarny] or a working group [Pol. grupa robocza] appointed by the interdisciplinary team (DV Act Art. 9a; 169; Bajor-Stachańczyk 2023, 124). Those bodies comprise representatives of social welfare, the police, municipality committees for solving alcohol problems, representatives of educational and health care institutions, and non-governmental organisations, but, depending on the case, working groups can also include prosecutors, probation and parole offices, and representatives of other relevant institutions (Majerek, Lubińska-Bogacka 2023, 229; Wrona 2016, 83).

There is a considerable gap in operation between the Blue Card system and the court justice system (Grzyb 2020, 165). It is, however, not the only relevant lacuna in the system – it is worth noting that DV cases may involve more than one court proceedings at the same time: on the one hand, civil proceeding over divorce/parental rights/division of estate, and on the other hand – proceedings in criminal court. The proceedings conducted by different courts and in accordance with different procedural rules cause considerable difficulties for the judges to holistically understand diverse aspects of a situation (Kalisz 2023, 91).

Needless to say, a successful solution in the Blue Card procedure requires tremendous efforts to coordinate between representative of institutions that on a daily basis operate on very different and not always compatible sets of procedures and practices, and who, therefore, are prepared to address different needs and expectations. Cooperation is not always smooth. The disparities between different institutions in the modes of responding to suspected DV were much more difficult to overcome than anticipated (Wrona 2016, 82).

Serval more obstacles with the smooth operating of Blue Card system are worth pointing out, including inflexible procedures, which place needlessly overblown bureaucratic requirements on the responders and help-seekers, as well as insufficiently defined legal status of interdisciplinary teams and working groups – which leaves those entities without means to act effectively or compel the suspected perpetrators to comply with the procedure. Moreover, there is the issue of funding, as it is unclear where the money for operating of working groups should come from (Wrona 2016, 110–112, cf. Ombudsman Office 2020, IIC art. 32).

Additionally, in recent times, changes in the ways in which social services centres operate have resulted in changes to arrangements of working groups and, in turn, impacted the quality of assistance for families afflicted with violence (Pułczyńska-Kurek 2023, 201). The staff shortages during the COVID-19 pandemic exacerbated problems in the institutional DV relief when at the time; the stress related to the pandemic and the necessity of social isolation caused the levels of violence to rise (Pułczyńska-Kurek 2023, 210–211). The regulations, introduced to mitigate the spread of the virus, did not recognise or address the needs of people subjected to domestic abuse (Skrabacz 2022, 25).

One of the pivotal aspects of providing help to the families afflicted with violence is separating the perpetrator from the victim (Wiktorska 2021, 80). The protective restraining orders prohibiting the perpetrator from contact with the victim are one of the more effective methods to prevent further DV victimisation that a court may employ (Helios, Jedlecka 2017, 10; Gierszewski 2019, 183; Melaniuk 2020). There are several venues in the Polish law that can be utilised to accomplish this goal, most of which lie in the discretion of prosecutors or the courts (Wiktorska 2021, 83). The protection orders in criminal proceeding can already be initiated at the pre-trial stage, at the prosecutor’s discretion as an ex officio decision, or at the request of a police officer (Wolwiak 2023, 362).^[8] However, courts underutilise the existing provisions (Jaworska-Wieloch, Sitarz 2019, 313–314; Wrona 2016, 80). That means not only the failure to protect the victim, but also decreasing the likelihood of completing the court cases (Fugate et al. 2005, 291). The quite robust measures for addressing DV provided by the law are not employed to sufficient extent, or, in fact, are barely employed at all (Halicka et al. 2018).

The analysis of violence prevention in Poland reveals that bridging the gap between the Blue Card system and the court justice system should be a priority, as the effective help for IPV depends on various parts of the violence relief system operating in a coordinated manner. Moreover, it stands to reason that cooperation between different branches of the system depends on how their representatives are educated and trained, including not only knowledge about the problem of violence, the relevant laws, and the make-up of the relief system, but also the fostering of the so-called soft competences and the shaping of non-discriminatory attitudes.

3. RECOGNISING BARRIERS

As many as ¾ of the people subjected to violence do not seek assistance from any institution, nor do they believe that such help could be effective (Majerek, Lubińska-Bogacka 2023, 224). There are several reasons for such situation. Undoubtedly, the internalised beliefs about violence, gender, and relationships play a part in discouraging potential help-seeker, as they do fear of the abuser or for the abuser; various problems in logistics of help-seeking, e.g. finding someone to take care for the children during a potential court hearing (Dobash, Dobash 1992; Goodman et al. 2009, 309–310); problems with ‘material’ infrastructure, e.g. the lack of options for commuting, digital divide, language barriers, including sign language, Internet resources unavailable in versions for the visually-impaired, or specialised DV agencies housed in buildings inaccessible for the disabled (Ombudsman’s Office 2020 IV, C; cf. DeKeseredy 2019, 318; Fugate et al. 2005, 299).

The psychological consequences^[9] of the abuse and its impact on individual capacities to seek out assistance are not insignificant (Goodman et al 2009; Kalisz 2023, 97). Moreover, even under the best conditions, disclosing one’s deeply personal and intimate issues to complete strangers is emotionally taxing. In theory, unfavourable reactions among help-seekers could be mitigated if they received appropriate support in the preparation for the meeting with the Blue Card working group or with the court. Unfortunately, there are not enough qualified professionals who could provide such service (Wrona 2016, 89). Another problem involves confidentiality concerns and pressure to keep quiet, especially in closely-knit communities, such as in rural areas and in the families of members of the police force (DeKeseredy 2019, 317–318; Johnson et al. 2005, 4; Huntley et al. 2019, 9; Zavala et al. 2015).

To a limited extent, the Polish law provides legal assistance free of charge to those who cannot afford it themselves. However, citizens are unaware of this form of support and, as a result, do not reach for it (Ombudsman’s Office 2020, IV B).

Oftentimes DV victims are subjected to a long waiting period between the initial contact with the police and the hearing in court. Furthermore, court officials often fail to provide adequate information and guidance, while DV victims report little support from their attorneys (Gillis et al. 2016, 1159). On the other hand, the courts in criminal, civil or administrative proceedings often set deadlines on 7 or 14 days for receiving the consultations. Meanwhile, in many places in Poland, it is impossible to obtain a legal consultation in such a short time. For instance, in Warsaw, the waiting time is typically around one month, and there are times during the year when this time is extended to two months (Wrona 2016, 97).

A person seeking to escape DV must face the housing problem and the associated costs. In theory, there are several legal venues for securing the place of residence available for the victim, barring the access to the perpetrator. In practice, it is usually the victim who must seek a safe place to live elsewhere (Helios, Jedlecka 2017; Gierszewski 2019, 183), even if they are the sole owners or the co-owners of the property. This entails that the instruments meant to coerce the perpetrator to leave, thus securing a place of residence for the victim, are still not very effective (Wiktorska 2021, 80). However, even when the perpetrator is successfully barred from the property, the resulting situation may still leave the victim very vulnerable and without the means of economic support. Moreover, if the perpetrator was the sole legal owner of the property, it may be sold, potentially leaving the victim homeless (Jaworska-Wieloch, Sitarz 2019, 305; Wiktorska 2021, 84).

A group that may encounter specific barriers in accessing DV relief includes members of sexual and gender minorities. This subject has not been very well recognised in the Polish scholarship yet. However, considering the research conducted in Europe and North America, it is not reasonable to expect that the lack of the legal recognition of same-gender unions or the unclear legal standing of such unions means that there are oversights in the law regarding the protection of queer people from DV (Calton et al. 2015, 591). Legal vulnerability is a considerable barrier to help-seeking among queer victims; in particular, insecure rights to custody or property may prevent them from seeking help (Hardesty et al. 2009, 40). Queer DV victims face particular problems securing the custody of their children, given that, historically, courts have marginalised parents in same-gender relationships with regard to child custody rights (Hardesty et al. 2009, 30; Scheer et al. 2020, 150).

Lastly, male victims of DV in heterosexual relationships are also the group of special concern when it comes to help-seeking. Specialised services for them are largely non-existent, while the general victim services may react with the lack of understanding of the problem (Hine et al. 2022). Additionally, abused men may encounter more ridicule in their communities and experience more shame than their female counterparts do (Helios, Jedlecka 2016, 72; Scarduzio et al. 2017, 2).

4. ADDRESSING VIOLENCE IN COURT PRACTICE

The maltreatment cases, which is the most common crime associated with DV that reaches the courtrooms in Poland, are among the most gruelling, lengthy court proceedings, as they frequently combine multiple legal aspects and even more extra-legal ones in addition to the fact that arriving at the material truth of the case is usually especially complicated in those types of cases (Kalisz 2023, 92). In the Polish court system, the main focus is on proving the guilt and sentencing the perpetrator, while the needs of the victims remain largely unrecognised and their well-being and safety not seen as relevant (Wrona 2016, 82). Unfortunately, in many ways, the mode of persecution and court proceedings protects the perpetrator (O’Neal et al. 2015, 1458; Helios, Jedlecka 2016, 125–126).

The district courts typically preside over cases of maltreatment. Grzegorz Wrona had extensively analysed a sample of sentences from those courts, concluding that the courts make the rule and present interpretations of the crime of maltreatment primarily based on the rulings of the Supreme court of Poland and, to some extent, based on commentaries to the PC (Wrona 2016, 213). Meanwhile, the courts do not reference the CEDAW, the Istanbul Convention, rulings of the European Court of Human Rights (ECtHR), or even the definition of violence from the DV Act (Wrona 2016, 211). Despite homogenous – or somewhat impoverished – sources of interpretation, Wrona notes that the final rulings are not very consistent (Wrona 2016, 214).

The crime of maltreatment is prosecuted out of office, although the criminal proceedings are very often discontinued when the victim refuses to testify, even though they are legally entitled to do so when the accused is a family member (PC Art. 115 § 11). This practice goes against prosecutors’ official responsibilities and the principle of humanitarian proceeding (Halicka et al. 2018; Wiktorska 2021, 83), even though there are other means for gathering evidence and other instruments to provide protection from further offences, legally securing victims’ best interest (Wrona 2016, 230).

As the consequence of victims’ shifting attitudes and priorities during the proceedings, prosecutors develop the image of a DV victim as uncooperative and untrustworthy, which, in turn, makes them unwilling to contribute appropriate information and satisfactory support (Gillis et el. 2006, 1153; Wrona 2016, 93). Those shifts come as a victim’s response to realities of their situation – the reasons for withdrawal may include threats and pressures from the perpetrator or (temporal) improvement in the perpetrators’ behaviour (the usual goal of those DV victims who enter the legal system), or even financial precarity. The attempt of withdrawal does not indicate that the prosecutors’ involvement is no longer needed (Wrona 2016, 93). Prosecutors aware of victimisation mechanisms could hold additional interviews with the victims when such circumstances arise (Halicka et al. 2018, 225).

Many DV victims fail to get a fair and favourable outcome in court, because they do not fit the idea of what a battered woman should be like. Women subjected to DV are pressured into performing victimhood and survivorhood in a particular way that often ignores the socioeconomic realities of gender and interpersonal relationships as well as the victims’ wishes. Those expectations are often contradictory. For instance, women who resolve to end violent relationships are more likely to receive legal assistance than their counterparts who appear unsure (cf. Fugate et al. 2005, 303).

At the same time, showing agency, initiative, or confidence, as well as signs of high socioeconomic standing in looks and behaviour can all be taken against the victim, but so can behaviours and attributes that judge, jury, or prosecutors see as unfeminine and/or unworthy of respect, e.g. forceful resistance to violence, substance abuse, or socioeconomic vulnerability (Wemrell et al. 2019, 10). Some courts rule that the victim’s aggression eliminates the possibility of convicting the perpetrator for maltreatment without examining the reasons for such behaviour (Wrona 2016, 214).

On the other hand, women who do fit the victim stereotype are assigned unfavourable qualities such as stupidity or passivity, or are even perceived as deserving the abuse. As a result, they are often discouraged from further pursuing their cases (cf. Gillis et el. 2006, 1153). DV victims are put into the double bind – if they are passive, they do not need or deserve help, but if they are agentic, it is deemed as a proof against their claims (Wrona 2016).

Another factor is the image of the “ideal” DV perpetrator. Such an ideal perpetrator is usually seen as the Other, someone who deviates from the norm in terms of class, ethnicity, or mental health (Wemrell et al. 2019, 10), or especially, as a substance abuser, which is a result of the legal tradition defining the crime od maltreatment as related to alcohol addiction (Wrona 2016). Moreover, the ideal perpetrator is also a man or at least masculine.^[10]

Most maltreatment cases in Poland conclude with a settlement on various stages of the proceeding (Kalisz 2023, 89). More than 80% of the sentences in maltreatment cases were suspended. Especially the cases where the victim refuses to testify or when the perpetrator changes their behaviour and reconciles very often end with the acquittal or discontinuation of the proceeding, even if the court established that the crime took place (Wrona 2016, 93).

The court practice in Poland shows that the majority of criminal cases involving DV had been submitted for mediation (Sitarz et al. 2018, 359), with maltreatment cases being the most common context for mediations in criminal proceedings in Poland (Kalisz 2023, 89). Although meditation is presented as a kind of procedure that can empower the victim, there are concerns as to whether it is possible to mitigate unfair power imbalances created by abuse, which can negatively influence the outcome for the victim, even if the mediator is appropriately qualified (Johnson, Kelly 2008, 492). Consequently, battered women’s advocates discourage mediation in DV-related cases, including custody and divorce civil proceedings, while the Istanbul Convention dictates that alternative dispute resolution processes cannot be mandatory in cases involving DV (2011, Art. 48). In this context, such a high percentage of mediation in DV cases in Poland appears odd.

The proceedings of divorce cases involving DV often reveal deep biases ingrained in the justice system. Legal professionals in such instances tend to blame women for destroying the marriage based on an implicit assumption that if a woman fails to meet her husband’s expectations regarding housework or sexual activities, she is to be blamed for the marriage falling apart, even when her husband’s expectations are unreasonable (Helios, Jedlecka 2016, 120).

Another problem is the custody over the children. Women are seen as nurturing and the natural providers of care for the children, so they are favoured in custody cases. However, granting the abusive former partner rights to visit their children can give them the opportunities to further exert abuse over the victim and her children (Gillis et el. 216, 1160–1161). On the other hand, based on the same stereotypes of maternal care, abusive women are also more likely to receive custody rights over their male partners. As a result of gender stereotypes prevalent in the justice system, abused men have difficulties in securing their children’s custody or shared custody in court (Hine et al. 2022, NP5608).

The perception of gender and traditional family roles influences the outcomes of the legal process for queer women as well (Wasarhaley et al. 2017, 639). The heteronormative understanding of the dynamics within the family, including the dynamics of DV, contributes to the erasure of female victims of abuse perpetrated by women, while the testimonies of queer women appear unfamiliar and illegible to court personal (cf. Girshick 2002, 1505).

By neglecting to apply existing laws, downplaying violence, employing narrow definitions of the crime that is detached from the social reality of abuse, employing an interpretation which is insensitive to gender asymmetry, or suspending legal investigations or acquittals, the courts can, perhaps even unintentionally, redefine violence, making it appear less serious or as not violence at all (Wrona 2016, 12–28, 155; Wemrell et al. 2019, 11).

Court proceedings do not happen in vacuum. During the proceedings, the law is understood and interpreted by legal professionals through the prism of available cultural patterns. For instance, a stereotypical approach to a woman’s role in the family informs the interpretation of formally-codified laws (Helios, Jedlecka 2017, 48). Those patterns affect not only the final verdict but court practices as a whole. The enduring tendencies have influence going far beyond the lives of those people who are directly involved in the individual cases. The court practices decide the dominant interpretation of the law, thus effectively shaping the law even in the legal systems where judges have no formal power to create the law.

However, the influence of courts as institutions does not end there. The courts can reinforce or subvert the hegemonic patterns of cultural value interpretation and communication. Therefore, it is important to consider that many of such patterns unfairly disfavour members of certain groups, such as women, children, the elderly, the disabled, and immigrants (cf. Fraser, Honneth 2003). As a result, courts can contribute to the maintenance of unfair social relations; in other words, courts as institutions are responsible for entrenching those patterns in society, but also have the power or transform those relations. That power lays not only in the final verdict or in the sentence, but also in the interaction between legal professionals and plaintiffs, defendants and witness, as well in the justifications for the decisions that the court presents.

Unless the court practices require appropriate countermeasures for unconscious prejudices, even the most progressive and well-thought-out laws will not be able to amend the ongoing cycle of discrimination (Young 1990, 151). In other words, the existence of adequate laws meant to help DV victims and prevent further victimisation is not a sufficient condition for effective violence prevention. Institutions of the justice system must, in practice, consciously address unconscious biases and gender stereotypes to avoid the reproduction of the same patterns they are meant to amend by implementing the existing laws. This makes the study of those mechanisms and the relation between the law and cultures and society embedded in and indispensable for the fair outcomes of court processes. Unless such measures are taken, the very patterns that normalise and effectively sanction DV prevail and are reproduced through institutional practice. Therefore, the education of legal professionals who are to be employed in DV cases should include the study of those extra-legal factors.

5. DISCUSSION – WHAT IS THE LAW SUPPOSED TO PROTECT AND HOW TO ENSURE IT DOES?

The definition of domestic violence in the DV Act of 2005 is not the same as the crime of maltreatment defined by the PC Art. 207. I believe that this difference is fully justified by different aims of the DV Act and the PC. The DV Act provides legal basis for addressing a harmful social phenomenon, preventing or at least mitigating it, as well as providing relief to persons afflicted outside lengthy and burdensome litigations (Grzyb 2020, 165; Wrona 2016). Typically, DV victims do not wish to punish the perpetrator, but merely make them change their behaviour, while the fear of the perpetrator facing legal consequences can be deterrent in contacting potential assistance (Gillis et el. 2006, 1158).

It is unfortunate that the 2023 update of the DV Act that introduced previously absent condition of dependency into the definition of violence, aligning it more closely with the crime of maltreatment (PC Art. 207), thus reducing its scope, potentially hindering individuals and families in receiving assistance (cf. Wiktorska 2021, 85). Additionally, the change may exacerbate the already long-standing confusion in the Blue Card procedure, where courts’ rulings against maltreatment are commonly treated as evidence of the absence of DV (Wrona 2016).

Both the DV Act and the PC Art. 207 adopt gender-neutral language.^[11] However, DV is a gendered phenomenon, making gender a relevant aspect in designing strategies of DV prevention. Paradoxically, while the DV Act explicitly mandates raising awareness about DV (Art. 9 § 1), it does not recognise the gendered nature of the phenomenon. However, the acts of international law ratified in Poland underline the gendered nature of DV. Ideally, those acts, such as the Istanbul Convention or the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW – Dz.U. z 1982 r., nr 10 poz. 71, 75–76) can be employed by relevant institutions, especially by the courts ruling on cases involving DV, although it is rarely the case (Wrona 2016, 211).

Furthermore, Art. 207 belongs to Chapter XXVI of the PC, titled “Crimes against family and guardianship,” although the crime is defined in such a way that covers abuse between parties not remaining in familial relationships; the protection of family is the main interest here. Judging by the language employed in the original text of the DV Act from 2005 – the Act of Protection and Prevention of Violence within Family – it was also meant to protect family.

In this context, it is worth to remember the fact that the Constitution of the Republic of Poland of 1997 (Dz.U. z 1997 r., nr 78, poz. 483) guarantees special protections to family (Art. 18). Moreover, earlier drafts, more inclusive and egalitarian in this aspect, also emphasised the role that the state and/or the law in Poland should fulfil in family protection (Wyrzykowski 2012, 215–216).

The term ‘domestic violence’ is not necessarily broader than the term ‘family violence’ – those terms are overlapping. Substituting one term with the other by itself would not broaden the scope of cases to which the law applies. Broadening the scope would either require including both terms or defining one of them within the text of the law in such a way that encompasses the other, which is what the DV Act does. However, the original text of the law from 2005 had been equally inclusive by stressing that the Act should apply to people sharing domestic arrangement regardless of whether they have family ties (Art. 2). In short, the postulate for increased inclusiveness cannot be treated as a justification for the change.

This change can optimistically be interpreted as placing greater priority on the rights and well-being of individuals in accordance with international law. For instance, the Istanbul Convention also employs the term ‘domestic violence’. Unfortunately, considering the political climate in which the DV Act had been updated, this interpretation is rather dubious. The Istanbul Convention in particular had become the subject of the so-called “culture war” (Gwiazda, Minkova 2024), while the ruling party at that time were aiming to exit the convention or at least minimise its influence in Poland.^[12]

Both types of relationships – i.e. sharing a living space and sharing familial bonds – come with very particular vulnerabilities. Optimally, the state should respond with creating laws that account for those vulnerabilities in order to best protect citizens’ rights, well-being, and interests. Recognising the particularities of contexts that individuals find themselves in and affording them special provisions on that basis is indispensable in protecting individual rights (Płatek 2013).

However, there is a difference between protecting just the individual rights in a certain type of arrangements, be it familial bonds or shared living space, and protecting family. The Polish Constitution, the PC, and the DV Act – at least in the original form – all recognise family protection as a distinct legal interest of the Polish state. For that reason, I believe that the change to term ‘domestic violence’ in the language of DV acts is missing the mark.

‘Family protection’ is an issue that more conservative voices often laid claim to, therefore constituting a subject that feminists tend to be wary of. There are good reasons for this concern: on the one hand, the voices that typically raise the subject of ‘family protection’ favour a certain inflexible and often oppressive model of family. On the other hand, the dominant understanding of ‘family protection’ is that it mainly entails maintaining the endurance of particular family over longer periods of time – ensuring that the family stays together – even to the detriment of the well-being of individual family members and the quality of relationships between them.

Despite that, I do not believe that family protection within the law is an issue that feminist should disavow. Family as an institution is fundamental in shaping gender relations and in shaping future generations’ understanding of norms regulating living together. As DV stems from unfair gender relations, the concern for family integrity – beyond the rights and well-being of individual family members – is inalienable from long-term DV prevention strategies. However, the understanding of family integrity and protection has to be compatible with the individual rights framework (Płatek 2013). This entails, on the one hand, flexible understanding of what family is, for instance by recognising queer families and by re-examining the status of non-human family members.^[13] On the other hand, the meaning of ‘protection’ in relation to family should be examined. All too often, the underlying idea is that the family staying together is either the same or at least necessary for preserving the integrity and stability of the family, which often goes hand in hand with the commitment to prioritise maintain social norms even above individual freedom and well-being (Płatek 2018; Helios, Jedlecka 2016, 125). However, if the threat to family integrity is abuse perpetrated by one or more family members, the longer time that the family stays together does not only mean prolonged suffering for the family members subjected to abuse, but also further destabilisation and violation of family integrity. Instead, the quality of family relationships should be protected. Family is wort protecting, because the family members support one another’s well-being and growth. If familial relations do not fulfil this function, and especially when some family members exploit family bonds to harm others, the same protection is not warranted. The family-staying-together issue should not be prioritised by institutions providing DV relief. The law and the practice of legal professions should empower DV victims to cut ties with the perpetrators without directly or indirectly coercing them to do so.

6. CONCLUSIONS

The DV relief system in Poland works in a limited capacity. The legal foundations regulating the functioning of the system – although definitely in need of further adjustments to better suit the needs of individual and families afflicted with violence – are quite robust and reasonably adequate. However, the way the system operates in practice is far from smooth.

In part, it is simply because the existing services and infrastructure are overwhelmed by the extent of the problem. Especially acute is the shortage of qualified personnel across different branches of the system. As a result, the forms of assistance guaranteed by the law are unavailable to the citizens seeking them. It is impossible to overcome this problem without allocating financial resources to the system, i.e. clarifying the sources of funding in the legal documents.

However, not all issues within the system can be solved simply by securing the funding. Various branches of the system are poorly integrated together and, in particular, there is a chasm between the court system and services that provide various forms of social support to victims. Meanwhile, successful solution to violence depends on cooperation between different agencies.

Another problem lies in how legal professionals approach their jobs. When the focus is penalisation rather than aiding the victims, the cases with low or unclear chances of conviction are rejected or discontinued, while the courts underutilise the instruments of victim protection in their discretion. Additionally, there is little reason to invest time in cooperation with social services if victims’ needs and well-being are deprioritised.

The pivotal aspect of DV prevention, namely anti-discrimination measures, is virtually neglected in the court practice. At the same time, the approach to family role is deeply embedded in gender bias. A more flexible way of thinking about family and its different possible forms and functions should be fostered among legal professionals. Moreover, family protection, understood as the protection of the quality of relationships, cannot be realised without the protection of individual rights and the well-being of individual family members. In order to promote the growth of nonviolent relationships, it is necessary to empower people to leave violent ones.

^* Joanna Dutka Adam Mickiewicz University in Poznań, jd16973@amu.edu.pl

© by the author, licensee University of Lodz – Lodz University Press, Lodz, Poland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution license CC-BY-NC-ND 4.0 (https://creativecommons.org/licenses/by-nc-nd/4.0/)
Received: 27.07.2024. Verified: 29.07.2024. Revised: 2.10.2024. Accepted: 27.10.2024.