In accordance with the definition adopted by the World Health Organization (WHO), violence is inflicted on less powerful individuals by those of superior physical strength or socio economic position. Violence against women constitutes a global social problem, according to the data provided by the WHO. The most common form of violence against women is domestic violence.

The supranational human rights documents on violence against women and domestic violence are of major importance in Turkish Law. They aim to eliminate all forms of discrimination and violence against women, including domestic violence. The documents include the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), General Recommendation No 12 and 19 of the Committee on the Elimination of Discrimination Against Women, the supervisory body of the Convention on the Elimination of All Forms of Discrimination Against Women, and The European Council Convention on the Prevention and Combating Violence Against Women and Domestic Violence, otherwise known as the Istanbul Convention. As previously stated, Law No 6284 on the Protection of the Family and the Prevention of Violence against Women took effect in Turkey on March 20, 2012, in order to protect women and the family against violence and to comply with the Istanbul Convention. Judges should issue preventive and protective orders in accordance with this law.

This study evaluates the preventive measures regulated under Article 5/I (h) and (ı) of Law No 6284 regarding examination and treatment of the perpetrator. In issuing such measures, judges should seek evidence on the likelihood of past and/or future violent behavior of the perpetrator. Judges have the discretion to issue an order on treatment without seeking any other condition in the event of addiction of alcohol, drugs or stimulants. To issue an order for treatment in the absence of addiction, proximate comprehension of a treatable cause of violent behavior should be present.

Court-ordered treatment cannot be forced. The success of the order is linked solely to the participation of the perpetrator. If the perpetrator does not consent to treatment, the objective of the preventive order cannot be achieved. When a perpetrator violates the order and fails to attend the treatment program, the only sanction is the application of preventive detention according to Article 13 of the Law No 6284, a maximum 6 months of imprisonment.

Equating these orders to medical treatment for psychological disorders or addiction problems disregards the fact that violent behavior is not an illness. It is first and foremost anti-social and criminal behavior. With few exceptions, most perpetrators are not psychiatric cases. Treatment programs should focus on challenging men’s perception of violence against women and address underlying gender and power dynamics. The ultimate aim of treatment programs should be the prevention of reoffending and the successful reintegration of the perpetrator into the community. Success requires attendance and the application of treatment until the perpetrator is rehabilitated, negating the application of Law No. 6284, limiting treatment duration to 6 months. This conclusion would also be in line with Art 53/II of the Istanbul Convention.

Art 423 (ff) of the Turkish Civil Code (TCC) regulates restricting an individual’s freedom for purposes of protection. Provided that the requirements for Art 423 of TCC are met, this measure may also be applied to perpetrators. But again, forced treatment is not possible except in cases of serious mental disease, according to The Convention of the Council of Europe on Human Rights and Biomedicine. Accordingly, forced treatment of the perpetrator could only be imposed if the perpetrator also suffers from a serious mental disease.

With the rare legal possibility of forced treatment and a maximum sentence of 6 months imprisonment for violating the court order, alternative legal sanctions and solutions should be provided to incline the perpetrator to attend treatment.

Deliberations for alternative solutions should give priority to the needs and safety of victims, including their human rights. In the possibility of failure to procure voluntary participation, giving victims a false sense of security should be avoided. Within the context of protection of women, children and the family, it would be crucial to discuss whether the violation of orders on examination and treatment can be stipulated as a temporary marriage impediment with the addition of other conditions. As a matter of fact, since protection of women and children against violence is directly related to public order and the right to marry can be restricted by law, such temporary restriction until voluntary attendance to treatment may present considerable efficacy on the protection of women, children and family. In order to regulate a temporary marriage impediment as suggested, violent behavior must also constitute a threat to public order. Additionally, bearing in mind exposure to violence breeds fear and causes trauma and in this regard is recognized as a form of mental violence, removal of custody of the perpetrator entirely pursuant to Art 346 ff of the TCC could be enforced to protect child victims.