Women and Law: Domestic Violence - Case Study Example

Domestic violence consists of a series of abusive incidents, used by one person to control and dominate another with whom they have, or have had, a family relationship. The occurrence of domestic violence is independent of background and circumstance, sexuality, age, disability and gender; nonetheless, the majority of the offenders are male. In 2004, the Government defined domestic violence as: Any incident of threatening behaviour, violence or abuse [psychological, physical, sexual, financial or emotional] between adults who are or have been intimate partners or family members, regardless of gender or sexuality. Some of the tactics employed by the perpetrators of domestic violence include psychological, sexual and physical violence, emotional and verbal abuse, isolation, threats and intimidation, harassment, destruction of property, actual or threatened harm to children and pets and financial control. Common assault has been made an "arrestable offence1", in the sense that the police can arrest a suspect at the scene of the assault without possessing a warrant. This is in variance to the previous practice where the police had to leave the suspected assailant with his victim. Common assault is now an alternative verdict in the Crown Court. There are a range of criminal offences, including sexual and physical assault, harassment and criminal damage, which can be used in cases of domestic violence. However, most offences2 do not take into account the cumulative pattern of violent behaviour, some of which may not constitute a criminal offence. There remains a significant problem with consistent implementation however and the judiciary still fails to treat crimes of domestic violence seriously3. The Domestic Violence, Crime and Victims Bill received Royal Assent in November 2004 to become the Domestic Violence Crime and Victims Act 2004. Domestic violence occurs when a family member or a partner or ex-partner attempts to physically or psychologically dominate or harm the other. Domestic violence has many forms, including physical violence, sexual abuse, emotional abuse, intimidation, economic deprivation or threats of violence. Domestic violence includes physical violence, which consists of direct physical violence, ranging from unwanted physical contact to rape and murder; and indirect physical violence, including destruction of objects; throwing objects near the victim. It also, consists of mental or emotional violence; verbal violence, including threats, insults, put-downs, attacks, and nonverbal threats, including gestures, facial expressions, body postures, economic and social abuse, controlling victim's money and other economic resources. Moreover, it could also comprise of preventing the victim from seeing friends and relatives, actively sabotaging victim's social relationships and isolating victim from social contacts, spiritual abuse. Colleen is married to Wayne, a violent and abusive man. After the birth of their baby, Sven, Wayne put a lot of pressure on Colleen to lose weight, which she did. However, she became anorexic due to this. In this case, the husband Wayne is characterised as a violent in nature and abusive man. Subsequent, to the birth of Sven, Wayne pressurized Colleen to lose weight for which she had to follow the diet restrictions etc, and because of these, she became anorexic. A pattern of behaviour characterised by the misuse of power and control by one person over another who are or have been in an intimate relationship is termed as domestic violence. It can occur in mixed gender relationships and same gender relationships and has profound consequences for the lives of children, individuals, families and communities. It may be physical, sexual, emotional or psychological. The latter may include intimidation and harassment. Thus, the attitude of Wayne comes under controlling behaviour, which prevents someone by force from acting freely. This can include keeping them from seeing relatives and friends and so on. The Domestic Violence, Crime and Victims Act 2004 introduced new powers for the police and courts to deal with offenders, while increasing the support and protection that victims receive. Stronger legal protection for victims of domestic violence has been provided by enabling courts to impose restraining orders when sentencing for any offence. Until now, such orders could only be imposed on offenders convicted of harassment or causing fear of violence. Abused women experience conflicting emotions such as fear, anger, shame, resentment, sadness and powerlessness. They live in fear, unable to predict when the next attack will come. They often blame themselves for the abuse, or deny it is taking place. They may ignore it, hoping it will not happen again. Abused women become isolated from family and friends and increasingly dependent on the abuser. In this situation, it can be hard to make sense of what is really happening. Abused women can develop post-traumatic stress, which includes a range of symptoms: agitation and anxiety, depression, panic attacks, trouble sleeping or relaxing, numbness, sense of isolation, nightmares. A study of the use of health services by domestic violence survivors found: 18% see a doctor in the first year of abuse; 56% after the second year; - 31% have no contact until the third year4. Therefore, in case Colleen's husband had been alive, her father could have approached the court for issuing a restraining order to place him in custody and thereby save his daughter from violence. In respect of the anorexic condition of Colleen a good physician should be consulted. Whilst there is no specific offence of domestic violence under criminal law, many offences may be used to apply to domestic violence, such as assault, false imprisonment, harassment, rape, criminal damage, attempted murder. However, these types of violence can also have a serious and lasting impact on women or child's sense well-being and autonomy. Whether the criminal law can protect victims or not is therefore dependent on the particular circumstances of the violence, and the responses of criminal justice agencies such as the police, probation and courts. Police responses to domestic violence have traditionally been ambiguous, depending on the attitudes and approach of the individual officer. Domestic violence was frequently seen as a private matter, not real violence and the sympathies of a predominantly male police force were often with the violent husband. Women seeking refuge and help from Women's Aid complained frequently about the lack of protection, effective action or information about other sources of help from the police, although there were some individual police officers who did as much as they could to help, despite the overall approach. Nevertheless, domestic violence cannot be dealt with effectively, solely by the criminal law. The criminal law and the courts perceive harm in terms of physical abuse, and will usually require some evidence of physical injury or harm as proof that a crime has been perpetrated, in the absence of independent witnesses. Nevertheless, the criminal justice system has an important role to play in preventing and challenging domestic violence, both symbolically and practically. The police are usually the first persons whom women experiencing domestic violence approach in an emergency. Arrests can be made to prevent further injury or to protect a vulnerable person. The Protection from Harassment Act 1997 introduced measures for protection under both the criminal and civil law. These provisions include two criminal offences, the offence of criminal harassment5 and the more serious offence involving fear of violence6. If convicted of either of these offences, there is an additional measure for protection: prohibiting the offender from further similar conduct. Under the civil law, there is also an injunction for prevention of harassment for those who are not eligible under the Family Law Act 1996. For example, shouting obscenities outside a woman's house on a Saturday, followed by a broken window the next Friday could constitute a related course of conduct even though the conduct is different each time. These offences can be prosecuted under existing legislation as public order or criminal damage offences, which constitute an offence under the Protection from Harassment Act 19977. The Criminal Justice Act 1988 allows the Crown Prosecution Service or CPS to use the victim's statement as evidence without calling the victim to court, except only under very limited circumstances8. The CPS has to prove beyond reasonable doubt that the person, who had made the statement, is afraid to give evidence or is being prevented from doing so. The victim does not have to give evidence to prove that he or she is afraid. This proof can come from any quarter, for example, a police officer or a doctor or sometimes it can be surmised from the victim's behaviour in court. If the court decides that the statement can be used under section 23, it must then decide whether, in the interests of justice, the statement should be used in this way9. The actus reus is the act, which, in combination with a certain mental state, such as intent or recklessness, constitutes a crime. For example, the crime of theft requires physically taking something, the actus reus, coupled with the intent to permanently deprive the owner of the object, the mental state, or mens rea. Every criminal offense has two components: one of these is objective, the other is subjective; one is physical, the other is mental; one is the actus reus, the other is the mens rea. The actus reus generally differs from crime to crime. In R v Latimer10, the defendant struck a blow with his belt at Horace Chapple, which after recoiling from him severely injured an innocent bystander. The defendant was convicted of maliciously wounding the victim, and appealed on the ground that it had never been his intention to hurt the bystander. The court held that the conviction would be affirmed, because the defendant had committed the actus reus of the offence with the necessary mens rea, i.e. he had acted maliciously. There was no requirement in the relevant act that his mens rea should relate to a named victim. Thus, Latimer's malice was transferred from his intended to his unintended victim. In R v Pembliton11, The defendant threw a stone at another person during an argument. The stone missed the intended victim and broke a nearby window. He was charged with malicious damage to property and convicted. The court, in quashing the conviction held that the doctrine of transferred malice was inapplicable where the defendant's intention had not been to cause the type of harm that actually occurred. His intention to assault another person could not be used as the mens rea for the damage that he had caused to the window. In Thabo Meli v R12, the defendants had taken their intended victim to a hut and plied him with drink so that he became intoxicated. They then hit the victim around the head, intending to kill him. In fact, the defendants only succeeded in knocking him unconscious, but believing the victim to be dead, they threw his body over a cliff. The victim survived but died of exposure some time later. The defendants were convicted of murder, and appealed to the Privy Council on the ground that there had been no coincidence of the mens rea and actus reus of murder. The Privy Council held that the correct view of what the defendants had done was to treat the chain of events as a continuing actus reus. The actus reus of causing death started with the victim being struck on the head and continued until he died of exposure. It was sufficient for the prosecution to establish that at some time during that chain of events the defendants had acted with the requisite mens rea. Colleen's nose was broken by her husband and fearing further abuse she defended herself with a kitchen knife, unfortunately, this led to her husband's death. Since, she did not intend to kill her husband, she can at most be held to be guilty of voluntary manslaughter and she can proffer a claim for self-defense. Voluntary manslaughter is murder mitigated to manslaughter by virtue of the statutory defenses under the Homicide Act 1957, namely provocation, diminished responsibility or suicide pact. Later on, she panicked and jumped into the river taking her son along with her. In this instance, she had no intention to cause death to both of them. In this, case also her offense, as she has no intention of killing her own son. However, in view of the extenuating circumstances under which she behaved, she should at most get a suspended sentence. From the feminist point of view, Colleen is not guilty of any crime. Initially she was abused and harassed by her violent husband and after the birth of her child she was forced to reduce her weight, resulting in anorexia. Being unable to withstand this torture any more, she ran away to her parental home. Her husband took away their child and when she went to get it back in a highly agitated state of mind, he broke her nose. She was forced to defend herself with a kitchen knife, resulting in his death. Later on in a panic stricken state she jumped into the river along with her son. This was not premeditated, and as a mother she never wished that her son should die. Since, she has suffered terribly at the hands of her husband and since she has lost her son, it would be totally unfair to punish her with any sort of sentence what so ever. Read More