The World Assembly,
Applauding prior action taken by this body to combat sexual offenses, crimes against children, and domestic abuse,
Concerned about the potential for victims of domestic abuse to be prosecuted either as accomplices or under theories of failure to protect others, without regard for the particular nature of such abuse which makes failure to protect near-impossible,
Desiring to add teeth to existing orders of protection and to facilitate the issuance of new orders, and
Committed to protecting victims and survivors of domestic abuse from future retaliation by their abusers,
Hereby enacts as follows:
- Requirements for criminal prosecution.
A person may not be convicted of an offense of enabling, or failing to protect a child or other vulnerable person from, physical violence, sexual abuse, or neglect, if the defendant:
- reasonably believed their own life or safety to be in danger as a result of the same person or persons who engaged in the underlying conduct the failure to protect from which constitutes the instant offense;
- was under the influence of any mind-altering substance not voluntarily consumed, and was therefore incapable of effectively protecting such child or other vulnerable person;
- was not actually present in the same location, and did not have a reasonable opportunity to become present, at a time when the defendant had a reasonable opportunity to protect such child or other vulnerable person; or
- was not physically able, due to restraint or confinement, or due to bodily condition, to render meaningful aid to the degree required to purge criminal liability in the absence of this clause.
- Applicability of section 1.
Section 1 applies retroactively, without regard to the stage of the criminal proceedings at the time of enactment of this resolution. Any person convicted of an offense of failing to protect a child or other vulnerable person from physical violence, sexual abuse, or neglect, where the conviction is subject to appeal or has become final at the time of enactment of this resolution, may petition the court having jurisdiction of the offense to reopen the case, and the court shall grant such petition on a showing that:
- the defendant intends to raise any point described in section 1; and
- given the facts of the case and the evidence known to the court, such a defense has a colorable claim and a reasonable possibility of success on the merits.
- Mitigation.
Where a person is convicted of a violent or sexual offense against a person who, at the relevant time, was a child, lineal or lateral descendant, spouse, civil partner, legal ward, or cohabitant of the defendant, and such conviction relied on any theory of criminal liability involving a person other than the defendant, the court shall permit the defendant, before sentencing, to offer evidence that:
- the defendant engaged in the criminal conduct as a result of the actual or threatened actions of such other person; and
- such actions, if actually carried out, would be expected to be worse or of a more serious character than the offense for which the defendant has been convicted.
- Protective orders.
Where a person is convicted in a member nation of a violent or sexual offense against a person who, at the relevant time, was a child, lineal or lateral descendant, spouse, civil partner, legal ward, or cohabitant of the defendant, the court may, in addition to any punishment imposed by virtue of the conviction, issue an order imposing such restrictions on the defendant as it deems necessary to ensure the victim's protection from the defendant or from any person associated with the defendant. The court shall presumptively issue such an order, unless of the belief that doing so would be manifestly unnecessary in light of all the circumstances. Such order shall be for a term sufficient (but not greater than necessary) to prevent further abuse, and the beneficiary of such order shall have a legally-recognized interest in its enforcement. In the event that the underlying conviction is set aside, the order shall be quashed.
- Housing and benefits for victims.
The victim of a violent or sexual offense shall, if a cohabitant of the defendant, be provided with housing separate from and independent of the defendant on request. In any such case, the victim shall not be liable to the defendant or an agent of the defendant for any fee arising from early termination of a lease, or any similar penalty. And no such victim shall lose any government-granted benefit granted to or by virtue of the convicted abuser.
