Domestic Violence and Family Law - Essay Example

Domestic Violence Introduction: Domestic violence occurs when injury and harm is knowingly inflicted on one person by another This is one area traditionally private, outside the neutral area as specified under Rawls’ liberalism.2 The feminist critique of existing notions of jurisprudence is that theories of individuality are grounded in male experience3. Domestic violence, mostly of women, is thus generally under reported, but current estimates peg it at 16% of all violent crime occurring within the U.K4 and the phenomenon has now extended to men as well.5 The Family Law Act of 1996 provided for comprehensive civil remedies than those existing up to that time. However, the Domestic Violence, Crime and Victims Act of 2004 (DCVA) provides comprehensive measures to deal with this problem from a criminal perspective. While this offers greater scope for preventing recidivism in domestic violence, it also blurs boundaries between civil and criminal law and may be disempowering victims by taking away their choices. The law on domestic violence: Prior to 1996, there was no effective protection specifically available through legislative provisions for the victims of domestic violence. Although some peripheral provisions existed6 the scope of protection extended under these Acts was of a haphazard nature and defective in many aspects. It was difficult to obtain restraining orders or non molestation orders since interference through the law in domestic issues was equivalent to a breach of privacy of individuals, hence no clearly defined legal standard had been laid out. As articulated by Lord Scarman in the case of Richards v Richards7 existing legislative provisions were akin to a “hotchpotch of enactment of limited scope” that were geared towards dealing with only with a limited range of specific situations where violence occured. But as stated by Duff, domestic violence cannot be viewed as “a matter for negotiation or compromise…..[but must be] condemned…..as an unqualified wrong….[and]…prosecuting it as a crime.”8 Cretney and Davis point out that “the law no longer recognizes a private realm in which a man is free to beat his wife….domestic violence is now recognized as a social evil..”9 The significant development was the passage of the Family Law Act of 1996, Part IV, which allows for non molestation and occupation orders to be issued against an “associated person”, including spouses and cohabitees, living in the same household.10 Molestation orders were not restricted to physical violence but extended to include harassment and pestering, while occupation orders can be issued by the Courts in instances where significant harm is likely to occur to a child and the offender may be required to vacate the residential premises. The Family Law Act of 1996 when combined with the Protection against Harrassment Act of 1997, extended the scope of protection for victims of domestic violence through preventive measures. According to Cretney, the Family Law Act of 1996 has replaced previously existing statutes with “a consistent set of remedies available in the Courts having jurisdiction in family matters.”11 However, the Act required that where molestation and occupation orders were concerned, a “power of arrest” was required to be attached to the order before an offender could be arrested. The Domestic Violence Act of 1996 was a further attempt to tackle the problem, by providing for four different kinds of protective orders against perpetrators of domestic violence, which are (a) interim barring order (b) barring order (c) safety order and (d) protection order. However, this act was criticized on the basis of the limited scope of its protection, since it required cohabitees to reside as husband and wife” and restricted the time of cohabitation to at least none months before relief was available under the Act12. The DCVA 2004 is significant in that it has introduced provisions to deal with the problem of domestic violence as a criminal offence, thereby extending the scope of relief provided under the Act. Tt has widened the category of persons who may be entitled to protective orders, thereby addressing the needs of a society where social equations are changing, such as for example unmarried couples and same sex couples who also cohabit with each other. Advantages and strengths of the Act: The question of defining the parameters of violence has been a difficult one Research has shown that in general domestic violence is gender specific – women are usually the targets of repeated physical violence, irrespective of race, age or ethnicity.12 These results are also corroborated by Dobash and Dobash who presented their findings garnered from 190 interviews with 95 couples that showed intimate partner violence as being an asymmetrical problem of men’s violence to women, so that while female violence to men in domestic situations also exists, it does not compare in severity, frequency and consequences to that perpetrated by men13. Dobash and Dobash have also pointed out that legislative responses to the problem have so far been geared from the perspective of violence by men towards women and this appears to be the correct approach to be adopted in public policy. Studies also show that victims of domestic abuse are unlikely to receive adequate support from health workers or social support services, since there is an inadequate level of awareness about domestic violence14 and when victims try to communicate their problems, health or social service workers may tend to blame the victims and recommend medication in a situation where other kinds of intervention are required instead15. The major focus of the DCVA Act is to punish the perpetrator of domestic violence. For instance sections 5-8 introduces new criminal elements in the causing of death to a child or vulnerable adult, and the breach of a non molestation order. This Act reflects the new strategy of the government in tackling domestic violence which was stated in its 2003 Consultation paper as follows – “making sure that the civil and criminal law offers the maximum protection to all victims to stop the violence recurring.”16 Therefore this is one significant advantage of the Act, since it is geared towards ensuring that recidivism in domestic violence is prevented and thereby addresses the need of the battered victims for the violence to stop17. This is widely perceived as beneficial, in that assault becomes an offence where the offender can be arrested.18 Section 12 authorizes the Court to impose a restraining order when it deems it to be necessary to protect the victim, and a breach of a non molestation order is punishable by up to five years in prison19. Courts may also impose restraining orders against acquittal for offences, if a victim is deemed to still need protection, with breaches of such orders being criminal offences punishable by five years.20 These are significant developments, because earlier legislative provisions allowed the Judge the discretion on attaching a power of arrest to the order. As a result, police officers were often uncertain whether or not they could arrest perpetrators of domestic violence who were violating non molestation orders, which is now clarified through the DCVA. Another significant aspect of the Domestic Violence, Crime and Victims Act of 2004 is the fact that the term cohabitees has been extended to include all persons in “an intimate personal relationship with each other which is or was of significant duration” within its scope.”21 Therefore, it also brings within the umbrella of protection, homosexual and/or non married couples, adult siblings, non dependent children and all other persons who may live with each other in a “non contractual relationship”22. The developments in the law thus far before the DCVA had a significant limitation, in that unmarried and homosexual couples were not entitled to the protection, which is redressed by the DCVA. Moreover, as Hoyle has pointed out, in cases of physical assault, the maximum extent of remedy that was earlier available was a fine, and very few offenders were sent to prison despite causing serious bodily harm to their women.23 Therefore, the criminal provisions of the DCVA are an advantage in addressing the question of justice to be done to the victims of serious domestic abuse. Disadvantages and limitations of the DCVA: A recent study conducted by Applegate24 examined the influences shaping domestic violence policy and found that as a result of the pressure of public opinion and the results of academic studies upon the Central Government, the discretion of local police officers in dealing with these issues has been reduced with more top down control. As a result, the focus has shifted to prosecution of the perpetrator of violence, irrespective of whether or not the victim wants to withdraw her/his complaint.25 In this aspect, the DCVA reveals some limitations as compared to the Family Law Act of 1996 which exhorted the Courts to adopt a “victim focused approach” in arriving at a decision about making a non molestation order.26 However, it is debatable whether the DCVA adopts a victim centered approach. As pointed out by Cretney and Davis, “the interest of the victim may be much harder to discern….she may turn to the police for rescue….[but have to] sustain a prosecution against a partner to whom she still has emotional ties.”27 Moreover, most women do not perceive the violence inflicted against them as being equivalent to a serious criminal offence to be harshly prosecuted.28 While earlier, the question of whether or not a criminal element could be introduced into the breach of a non molestation order was in the hands of the victim, in that she could decide whether or not to call the police, the DCVA automatically renders such a breach a criminal act and thereby pre-empts the victim’s power of choice. There are elements of love and emotional dependency that are involved in a domestic relationship and in the case of Lomas v Parle29 the Court articulated the reluctance of victims to subject the father of their children to a criminal conviction, highlighting the fact that anger and emotional management programs were likely to be more effective in combating the domestic violence problem.30 Therefore, the interference with victim autonomy is a disadvantage of the DCVA. Another disadvantage of the Act is the blurring of the boundaries of civil and criminal law that have resulted from the criminalization of breach of the non molestation order. There is confusion in the application of the standard of proof required to prove an offence – the “beyond reasonable doubt” applied in criminal cases as opposed to the civil standard of proof. As Burton points out, if domestic violence is pushed into the criminal law area, then a higher standard of proof will become necessary which could be detrimental to victims, because “more applications for non molestation orders will be contested”31 on the standard of proof. Conclusions: On the basis of the above, it may therefore be stated that the DCVA seeks to address the limitations in earlier laws through criminalizing offences. While the Act is undoubtedly a move in the right direction in that it could prevent recidivism and includes a wider range of people under its provisions, nevertheless there are some significant limitations as pointed out above. The question of whether victims are actually being empowered through this Act remains a thorny issue, especially since most victims may be unwilling to hoist a criminal conviction upon their loved ones who are also abusers. The Act also raises the prospect of the blurring of the boundaries between civil and criminal law, so that in requiring higher standards of proof as mandated by criminal courts, victims may find it more difficult to secure non molestation orders, which could prove detrimental to their interests in the long run. Therefore, it cannot be stated definitively that the Act is a move in the right direction, since it may actually disempower the victim through the lack of choice she is allowed after criminalization of the offence. Word Count: 1950 Footnotes: 550 TOTAL: 2500 Bibliography * Applegate, R.J, 2006. “Changing local policy and practice towards the policing of domestic violence in England and Wales.” Policing, 49(2): 368 * Barren J (2004) Struggle to Survive: Challenges for delivering services on mental health, substance use and domestic violence. Bristol: Womens Aid Federation of England * Burton, M, 2003. Criminalising breaches of civil orders for protection from domestic violence.” Criminal Law Review, 301 at 309 * Burton, M. 2004. “Lomas v Parle – coherent and effective remedies for victims of domestic violence: time for an integrated domestic violence Court?” Child and Family Law Quarterly, 16(3) at pp 317 * Cretney, A and Davis, G, 1996. “Prosecuting domestic assault” criminal law Review at pp 162 * Cretney, S, 2003. “Family Law in the Twentieth Century” Oxford: Oxford University Press at pp 7 * Crime in England and Wales 2004/2005 report) [online] available at: http://www.homeoffice.gov.uk/rds/crimeew0405.html * Dobash, Russel P and Dobash, Emerson R, 2004. “Women’s violence to men in intimate relationships.” The British Journal of Criminology, 44(3): 324-350 * Duff, R.A., 2001. “Punishment, Communication and responsibility” at pp 62 * Domestic, Crime and Victims Act of 2004 * Domestic Violence Act of 1996 * Domestic Violence and Matrimonial Proceedings Act 1976 * Domestic Proceedings and Magistrates Court Act of 1978 * The Family Law Act of 1996 * Grady, A, 2002. “ Female on male Domestic Abuse: Uncommon or ignored?” IN Hoyle, C and Young, R (eds) “New Visions of Crime Victims” Oxford: Hart Publishing * Harris, John, 1980. “Violence and Responsibility” Routledge and Kegan Paul at pp 11 * Hill, Robert N, 2005. “The Domestic Violence, Crime and Victims Act 2004” Family Law 281 * Hoyle, C, 1998. Negotiating Domestic Violence: Police, Criminal Justice, and Victims.” Clarendon at pp 191-192 * Hoyle, C and Sanders A, 2000. “Police response to domestic violence: From victim choice to victim empowerment?” British Journal of Criminology 40 at pp 14 * Home Office, 2003. “Safety and Justice: The Government’s proposals on domestic violence” London” The Stationary office at pp 11 * Humphreys C & Thiara R (2003) Mental health and domestic violence: I call it symptoms of abuse. British Journal of Social Work 33 209-26 * Lacey N, Wells C and Quick O, Reconstructing Criminal Law (3rd ed) pp 632 * Lomas v Parle (2004) 1 All ER 1173 * Matrimonial Homes Act 1976 * McLaughlin, Janice, 2003. “Feminist Social and Political Theory” Sweet and Maxwell at pp 2-5 and 26-41 * O’Herlihy, Edel, 2002. “An overview of the strengths and weaknesses of the Domestic Violence Act, 1996.” Cork Online Review [online] available at: http://www.ucc.ie/colr/essay/2002viii.html * Richards v Richards (1984) AC 174 at 206 * Walby S & Allen J, 2004. Domestic Violence, Sexual Assault and Stalking: Findings from the British Crime Survey. London: Home Office Research, Development and Statistics Directorate. * West, Robin, 1988.”Jurisprudence and gender” 55, University of Chicago Law Review 1 Read More