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Lessons from decriminalizing Article 116 in Russia and its impact on accessing justice in cases of domestic violence
Written by Kamryn McDonaldThis blog was edited from the original article by Raisa Philip.
What happened when Russia decided to decriminalize Article 116?
In the absence of specific laws addressing domestic violence (DV), Article 116 of the Russian criminal code is one of the primary sections used by survivors of domestic violence to pursue legal action against abusers. Article 116, also known as “poboi” or “beating,” specifically pertains to battery, beatings, or other violent actions that inflict physical pain. The Russian parliament’s decision to amend Article 116 in February 2017 seized the attention of the media in both Europe and the United States. English-language media offered frequent (often sensationalized) coverage that often misinterpreted the actions of the Russian Federation, categorizing it as a blanket ‘decriminalization’ effort when the reality is much more complex.
This case study examines the flaws in conceptualizing Russia's reforms to Article 116 as 'decriminalization'. The Russian case exemplifies how human rights language can be co-opted to support systematic abandonment of those suffering from DV by claiming to “humanize” Russian criminal law or protect the rights of children. This case study applies an anti-carceral human rights framework to analyze Russian legal reforms as part of a broader misogynist cultural movement. I argue that the reform and its impact require a nuanced reading that supports us in responsibly advocating for mechanisms that bring justice to survivors of domestic violence.
Understanding how the legal code in Russia works:
To understand the intentions and implications of the form of decriminalization of DV that took place in Russia, the mechanisms of the Russian legal system must first be understood. The Russian legal system is a code-based civil legal system where victims of DV may interact with the legal system through one of the three separate legal codes, which define the offense and associated punishment: the administrative code, the criminal code, and the family code. The legal code under which an offense or charge is pursued depends on a variety of factors, such as the severity of the incident, its regularity, and the maximum punishment allowed by the code. The administrative legal code in Russia typically governs “minor” offenses such as tax violations and public disturbances. The Russian Criminal Code governs more “severe” crimes, which usually carry longer carceral sentences, higher fines, and more severe punishments. Lastly, family code typically governs issues of divorce, guardianship, and alimony. Instances of abuse are generally heard through either the criminal or administrative courts, depending on the severity of the injury and how police document and report the incident.
Challenges in structural response against domestic violence in Russia:
Russian law responds to domestic violence in a piecemeal manner; there is no explicit law addressing DV, but various articles in the legal code that survivors can technically use to bring charges against their abusers. Articles 115 and 116 of the Russian Criminal Code are the most legally relevant to DV as they represent the articles most frequently used to prosecute DV. What is important to note is that the injury determines which article the charge is brought under and which court hears the crime. Most cases of DV in Russia are charged under Article 116 as they deal with physical injuries which have caused “physical pain” but not resulted in a “damage of health” or the “loss of capacity to work” (these consequences are prosecuted under Article 115). This means that assaults resulting in bruises, scratches, welts, or other “minor” injuries are prosecuted under Article 116. Assaults resulting in injuries such as broken bones or hospitalization are brought forth under Article 115.
Article 116 is one of the most frequently used legal provisions in Russia, with cases numbering between 50,000 and 80,000 every year. Article 116 has been amended over time to define its applicability to various situations, such as identifying hate crimes as an aggravating factor, etc. (see Appendix 1). Survivors bringing charges under Article 116 are often forced to initiate a private investigation and a resource-intensive prosecutorial process (a court can initiate an investigation, but it is uncommon). Under this system, Russian law places all of the burden of evidence collection and the costs of prosecution on the individual bringing the charges to the court. These have high acquittal rates in comparison to those defended by a public prosecutor; 20% vs. 0.4%, respectively. Cases brought forth under the private prosecution model are frequently terminated outside of court through reconciliation; i.e., judges often “terminate the criminal case at the written request of the victim and on the condition that the offender has compensated the damage”. Such reconciliations functionally result in an admission of guilt with no official criminal record for the defendant. This is important in the context of the reformed Article 116, as it now requires repeated offenses to file a criminal complaint under Article 116.
DV in Russia is widely underreported. Human Rights Watch reports that “only around 10 percent of survivors of domestic violence in Russia report incidents of violence to the police”. In these cases, the police often “refused to register or investigate their complaints of domestic violence and sexual assault”. The survivors reported that police often pushed them to resolve their cases internally, or argued that “the women are guilty or complicit in their own abuse”. A legal review of women’s rights in self-defense cases against their abusers in Russia found that police officers, prosecutors, investigators, and judges have a “negative stereotypical attitude towards cases of domestic violence,” resulting in the legal system taking inadequate steps to prevent violence or to address discrimination.
The increasingly punitive and carceral responses to DV have resulted in the criminalization of survivors. A Russian-language report on domestic violence found that “91% of 1,500 women sentenced for exceeding the limits of self-defense between 2011-2018 had been defending themselves”. The report notes that “more than half (52%) of 1,700 women who were convicted for assault that resulted in death were found to have acted in self-defense”. The challenges that DV survivors face when reporting abuse to police are often compounded by a larger lack of supportive services, making it difficult for survivors to access aid and support in Russia.
There are few avenues of support in both private and State-managed crisis response for domestic violence. Despite the resources available for families in crisis, there are relatively few women’s crisis centers in Russia. In 2020, there were only 14 “women’s crisis centers” which also operated as DV shelters. According to standards set by the Council of Europe, Russia should provide at least 14,000 shelter spaces to meet the requirements of one shelter space per 7,500 inhabitants. In addition to failing to meet the minimum support standards laid out by the Council of Europe, NGOs, shelters, and state-operated organizations face significant funding constraints and a general lack of resources. These funding constraints result in overcrowding and high entry thresholds, leading to many survivors being away. Further, recent efforts by activists and NGOs to collect data about GBV have met extensive hurdles. As part of Russia’s far-right agenda, Russia frequently classifies NGOs and activist groups as foreign agents, limiting their access to data and restricting their ability to provide support for survivors of DV, further constraining available resources in Russia.
Decriminalization of Domestic Violence in Russia:
In 2015, a wide slate of criminal reforms was introduced by the Russian Supreme Court; an explanatory note to the court argued that the changes “intended for the bill to become part of the broad effort to humanize and liberalize Russian criminal law”. As a whole, the reforms shifted the status of many offenses, reclassifying them from criminal offenses to administrative ones. Article 116 was included in the original slate of reforms as one of these reclassified offenses. Using similar language used by feminist decriminalization advocates globally, the bill claimed that the “decriminalization of these offenses would result in around 200,000 persons being removed from the scope of the criminal justice system every year”. However, despite the stated rationale, area studies scholars have argued that these reforms were primarily introduced to ease administrative pressure on the Russian legal system.
In the case of Article 116, the path to reform was not smooth: It advanced in three specific stages:
- 2015 Proposed Reforms. The first and original reform was introduced by the Supreme Court of the Russian Federation in 2015. This reform decriminalized non-aggravated battery, or battery covered by Article 116.1. Aggravated battery, or battery covered by Article 116.2 remained a criminal offense.
- July 2016 Amendments. After the first reading of the proposal in the Duma, it was decided that the amendments would exempt “battery of close persons” and “aggravated battery” from decriminalization, meaning, these offenses would remain criminalized. In July 2016, the amendments were passed. The amendments also included language that stipulated that people who had previously faced an administrative penalty for non-aggravated battery within the year (i.e., a repeat offense of battery within a year) would face criminal charges.
- February 2017 Amendments. However, the July 2016 amendments led to conservative backlash; and a second slate of reactionary reforms was passed in February 2017. These reforms removed the previous exemption pertaining to the battery of close persons. Thus, the language “battery of close persons that resulted in physical pain but did not inflict harm or other consequences” was removed from Article 116. These changes resulted in only “aggravated battery, repeated battery, or battery that results in harm to the victim’s health” being criminalized under Article 116.
After the introduction of the 2015 reforms by the Russian Supreme Court, feminist groups and domestic violence activists lobbied to keep abuse between close family members in the criminal code. The July 2016 amendment was included in large part due to pressure from activists and feminist lobbying efforts. However, the feminist involvement garnered attention from conservative groups and sparked a reactionary backlash by conservative actors within Russia. The Russian Orthodox Church, as well as conservative groups and far-right politicians, rather than framing their dissatisfaction regarding the 2016 amendment as a direct backlash against the feminist activism, framed their opposition as a plea for “parental rights.” Conservative parliamentarians, the Church, and conservative groups all voiced specific concerns about the amendment’s impact on the use of corporal punishment for children, with the Patriarchate of Moscow (title of the primate of the Russian Orthodox Church) stating,
“There is no doubt that children should be protected from truly criminal acts, whoever commits these acts—especially when it comes to criminal violence. But there’s no real reason to criminalize the reasonable and moderate use of physical violence by loving parents when raising their children.”
The Russian Orthodox Church is extremely powerful in Russia, and in recent years, it has become increasingly intertwined with Putin’s far-right regime. In the wake of the conservative pushback led by the Orthodox Church, a conservative coalition of parliament members, led by Yelena Mizulina, drafted an updated version of Article 116, which decriminalized the first instance of familial violence. Proponents of Mizulina’s amendment, including members of Putin’s party, United Russia, and Patriarch Kirill, all argued that the 2017 change doesn’t result in complete immunity for DV as repeat offenses remain criminalized. A Table of consequences as per the amended Article 116 is given below:
A common rhetorical strategy that can be observed as employed by Russian conservative groups was the emphasis on keeping domestic matters “within the home” and outside the authority of the legal system. This insistence on framing DV as a private matter represents both the State’s commitment to reaffirming a patriarchal familial hierarchy and its overall apathy towards addressing DV. It aligns with the general indifference the Russian government has displayed towards DV and Putin’s political desire to further far-right “traditionally masculine” agendas.
In this context how must we understand the decriminalization of Article 116?
1.
Limited understanding of the situation by Western
media:
The Russian case demonstrates how the oversimplification of complex legal processes in global contexts can be leveraged by far-right actors to further anti- feminist and anti- human rights goals. An in-depth analysis of the Russian case reveals how international media misinterpreted the complex two-year amendment processes, which started in 2015 and ended in 2017, for a general blanket decriminalization of DV. During the two-year process, there was a complex process involving bureaucratic, political, and legal forces. Ignoring these layered processes resulted in a misunderstanding of the reality that DV survivors face within Russia and the avenues of legal and non-legal support available to them.
2. Co-optation as a tool of gender backlash to decriminalize Article 116:
The decriminalization of Article 116 further strains the already limited response of the Russian state to DV. It is interesting to note that both in proposing the 2015 reforms and in opposing the 2016 reforms the conservative groups in Russia co-opted human rights narratives. First in its claim that decriminalization is reflective of a more humane and liberal Russia and in the second instance as a reiteration of Russian family values, specifically – the right of a parent to discipline their child, to read down the section for violence within families. In both cases justice to the person harmed is not prioritised.
3. The limited nature of DV protection available in Russia
Even prior to 2017, the protections available for those harmed by domestic violence were unsatisfactory. There was no direct law that responded to domestic violence. Law enforcement agencies were, and continue to be, biased against survivors of domestic violence. The law necessitates a heavy reliance on private prosecution methods, which are economically taxing to the victim. Support in the form of crisis response resources and shelters is also very limited, underfunded, and overcrowded. Survivors also face severe entry barriers in the form of mandated medical documentation, long wait times, etc.
When we rely primarily on carceral systems to address gender based violence:
The case of Russia’s reforms to Article 116 is a clear example of the pitfalls of overreliance on carceral justice systems to respond to domestic violence and other forms of gender based violence. It shows us that the protections accorded by legal systems are often dependent on the permissiveness and the values of those who possess socio-economic and political power in that context; as was seen with the changes from the July 2016 amendment to the February 2017 amendments to Article 116. Law is a tool that reflects our shared and negotiated social contracts as a society. However, to comprehensively and consistently address challenges like DV, it is necessary to go beyond the law and design strategies that address the root causes of gender based violence. Advocates of decriminalization urge us to reflect on the substantive access to justice for people who are harmed, and the benefits of punitive actions provided by criminal systems.
Rolling back minimal protections, without any additional resources, or plans to address the root causes of gender based violence, as seen in Russia, benefits no one and reveals the lack of political will from State authorities to address the issue. At the same time, it shows us the risks of relying on criminal systems for justice. At a time when the socio-economic and political values across the globe are going through a phase of anti-gender backlash and a reinvigorated commitment to conservative values, it is important to prioritise safety, accountability, and justice beyond carceral justice systems that tend to mimic the existing power hierarchies in our contexts.
Appendix 1:
Changes in Article 116 from 1996 to 2017:
The same deeds committed:
a) through ruffian-like motives
| Battery or the commission of similar violent actions, which have caused physical pain but not involved the consequences referred to in Article 115 of this Code, Shall be punishable with a fine in the amount of up to 40 thousand roubles, or in the amount of the wage or salary or any other income of the convicted person for a period of three months, or by compulsory works for a period of time of up to 360 hours, or by corrective labour for a term of up to six months, or by arrest for a term of up to three months. |
| The same deeds committed: a) through ruffian-like motives. b) by reason of political, ideological, racial, national or religious hatred or enmity, or by reason of hatred or enmity with respect to some social group - shall be punishable by obligatory labour for a term of up to 360 hours, or by corrective labour for a term of up to one year, or by restriction of liberty for a term up to two years, or by compulsory labour for a term of up to two years, or by an arrest for a term of up to six months, or by deprivation of liberty for a term of up two years |
| Inflicting beatings or committing other violent acts that caused physical pain but did not entail the consequences specified in Article 115 of this Code, in relation to close persons… |
shall be punished by a fine of up to 40 thousand roubles or of the amount of a salary or other income for a period of up to three months, or by compulsory works for a period of twenty to one hundred eighty hours, or by corrective works for up to six months, or arrest for up to three months.
2. The same acts committed:
a) through ruffian-like motives
b) on the grounds of political, ideological, racial, ethnic or religious hatred or enmity or hatred or enmity towards any social group – shall be punished by compulsory works for a term of twenty to one hundred eighty hours, or by corrective works for up to one year, or by restriction of freedom for up to two years, or arrest for up to six months, or imprisonment for a term not exceeding two years.