Whether in the dismissal or prosecution of cases, doubt has often been cast on statements made by victims of domestic violence. Even after enduring the trauma of abuse, the victim can frequently be  discouraged from seeking justice by societal pressures: their limited access to legal knowledge leads them to believe that their partner’s threats and psychological violence will not be deemed valid by the court.

The presumption of innocence, a fundamental legal tenet in many countries, places the burden of proof on the prosecution to demonstrate the guilt of the accused beyond a reasonable doubt. This principle is a double-edged sword; the doctrine of free evidence grants the prosecution the right to collect evidence without receiving consent from the person concerned; for example, through audio recordings. However, the privilege against self- incrimination is also implicated.

In other words, while victims are allowed to gather evidence that could be deemed ‘disloyal’ by recording or filming their partner, the offenders can strengthen their defence by exploiting procedural loopholes in the law to construct their arguments and avoid self-incrimination, thus preserving the presumption of innocence.

While evidence must be freely obtained, it must also be tangible and physical. Threatening words that inflict emotional harm, while significant, remain abstract and are often considered weak in court. This realization underscores the premise that the victim’s statement alone may not defeat the presumption of innocence unless it has been recorded. Instead, medical certificates proving physical injuries from violence or severe mental distress from psychological abuse are required: physical evidence carries more weight than the victim’s words.

Unlike other victims of violent crimes, victims of domestic abuse are often under the control of their partners. Victims feel helpless as the power in the relationship is manipulated and imposed by the partner, using isolation, dominance, and dependency. Being “sous emprise”² or “under control” complicates the gathering of evidence, including pictures, witnesses, testimonies, and recordings, especially in cases of psychological violence where the medical reports are missing. Thus, we can’t deny the progress achieved by the legal system in legalizing the concept of disloyalty and the use of audio recordings of psychological violence when they are employed     for the purpose of filing complaints.

Human warmth is the primary and most important need of victims who experience emotional traumas which lead to feelings of guilt and shame. Consequently, a framework to detect coercive control must be implemented and utilized by police officers, particularly for cases of psychological abuse when the victims finally decide to break their silence and file a complaint. Hearings should be filmed and recorded to facilitate the prosecution’s decision-making process. We should understand that while the victim’s statements are summarized in the court minutes, they may not fully capture the details and emotional impact of the victim’s testimony. By recording the proceedings, a more accurate and complete record can be achieved.

When battered victims are exposed to life-jeopardizing threats, which legal presumption reduces their risk of exposure to psychological abuse: “Innocent until Proven Guilty” or “Guilty until Proven Innocent”  ?

A balanced solution is needed. Victims often seek safeguards to protect themselves from further abuse and demand additional rights to defeat the Probatio Diabolica³, a challenge that prevents them from breaking the silence and sabotaging their resilience.

“But if the presumption is wrong, can we still maintain justice?”

¹ The heartfelt words and testimony, revealing the deception endured by a victim of Domestic Violence who experienced threats involving weapons, sequestration, isolation, physical abuse…, gathered during the research phase, notably within the scope of the interviews led by the national team / Victim Support Europe – European Project 2Gether4Victims.

² In France, the term “psychological violence, elaborated on the concept of “emprise manifeste” by the Prime Minister Edouard Philippe in 2019, refers to “coercive control”. It’s worth mentioning that the term “emprise” is often mistranslated, which can lead to misinterpretation of the legal terms. For this reason, the notions of “coercive control” (associated to the power of the perpetrator) and “emprise” (related to the impact on the victim) must be used separately.

³ Latin for “Devil’s Proof” is evidence that is impossible to produce. It may lead to a reversal of the burden of proof. This specific term is not commonly used in all legal systems.