Criminal Law on the Side of Domestic Abuse Victims - Research Paper Example

Criminal Law To what extent do judicial decisions on and dis s around domestic violence undermine law’s claim to objectivity, neutrality and universalism? Introduction What is regarded as abusive in the context of intimate relationships has changed over time. Early concern focused on wife-beating but attention is now directed at a broader range of behavior. For example, Hester and Radford identify ‘a range of abusive behaviors’ such as ‘emotional cruelty, controlling and demeaning behavior including withholding of money, attempts at strangulation and threats to kill’ (1996 p7). The influence of feminism is now discernible within official thinking. Domestic Violence: Definition The Home Office has adopted as its definition of domestic violence1, ‘any violence between current or former partners in an intimate relationship, wherever and whenever the violence occurs. The violence may include physical, sexual2, emotional and financial abuse’. (Home Office 2003 pp 6 and 8). Domestic Violence: Meaning Domestic violence characteristically includes acts of physical and mental cruelty progressing from a slap or shove, to a punch or kick, and to the more extreme manifestations of violence, in suffocation, strangulation, attempted murder and murder. The prefix ‘domestic’ serves to neutralize the full horror, viciousness and habituation of the violence...3. Thus domestic violence is not defined simply by physical acts of hitting, slapping or punching in a relationship, but also by the use of a variety of tactics, including physical assault, by one intimate with the goal of gaining power and control over one’s partner. The behavior that is commonly called domestic violence can take on a variety of different aspects. It can be physical assault, sexual abuse, threats of either, or psychological abuse. It usually continues for years before the victims take action (if they do) and, on some occasions, it results in the death of either the victim or the perpetrator. It is not confined to any one socio-economic group nor can it be said that it is caused by any one factor. Furthermore, its practice is extensive. It is necessary to look at some of the manifestations of violence within what should be a loving relationship to fully understand the horror to which victims are subjected and the need for adequate protection to be provided by both the civil and the criminal justice systems. Perpetrators and Victims Domestic violence is conceived of primarily as a problem of men’s abuse of women. Although researchers have documented abuse within same sex relationships4 and although there is evidence that, in a comparatively small number of cases, women abuse men5, the available research suggests that domestic violence is overwhelmingly directed by men against women6. The prior relationship between victims and defendants is most apparent in crimes against women. Men are more likely then women to experience violent victimization. But the nature of these events differs greatly. Women are about six times more likely than men to experience violence committed by an intimate. The prior relationship between victim and offender causes particular problems for law enforcement officials in the area of domestic violence. Domestic Violence: Literary Review Violence in the context of intimate relationships encapsulates may types of abuse: emotional/psychological, physical, sexual and economic. Such abuse can occur within married, separated and divorced relationships or among single people living together or simply dating one another. Many enduring and dysfunctional aspects contribute to the violence that occurs, so it is important to examine how abusive episodes emerge within the context of the ongoing relationship. Of all the crimes reported to the British Crime Survey in 2000, more than 1 in 20 was classified as domestic violence. Survey reports of domestic violence have also established that repeat victimization is very common within relationships. More than half of all victims of domestic violence are involved in more than one incident of physical violence. No other type of crime has a rate of repeat victimization as high.7 Work with domestic violence perpetrators and corresponding reports from their partners (EA) indicates that it s uncommon for victims to experience a physically violent attack by their partner as an isolated incident. Reports, both from partners in questionnaires and from perpetrators in treatment, indicate that there is a pattern of non-physically abusive behavior, comprising verbal abuse (i.e. shouting, swearing, insulting), intimidation (i.e. threats, both verbal and non-verbal, damaging property), financial abuse (i.e. controlling finances, demanding money; theft) and isolation i.e. cutting victim off from family, friends, taking car keys, falsely imprisoning them in the home) that often proceeds physical abuse. In many cases there is no agency involvement until the abuse becomes chronic or escalates to cause serious injury. This is often due to a reluctance by victims to report domestic violence to the police. On average, a woman will be assaulted by her partner or ex-partner 35 times before reporting it to police8. These reports indicate that there are likely to have been previous incidents of violence before there is any documented evidence of them occurring. Most studies have focused on domestic violence in heterosexual relationships, where it has been found that the vast majority of cases involve violence from men to women9. For instance NCH10 Action for Children study suggested that 90-97 percent of domestic violence if from men to women11, and a national 24-hour snapshot of domestic violence incidents reported to the police found that 81 percent of callers were women. Where it is women who are violent to male partners, it is often as a means of self-defense and in response to a long-term violence and abuse from their partners. Domestic violence can also take place in same sex relationships, although the limited research in this area suggests that there may be differences in comparison with the way in which domestic violence manifests heterosexual relationships, at least where help- seeking is concerned. Criminal Laws claim to objectivity, neutrality and universalism Objectivity is the legal apologetic that defends against the use or acknowledgement of affect or standpoint in the perception and construction of legal events or decisions (Creedon, 1993). It is both a strategic presumption and ritual that projects judges from charges of bias toward a particular party interest. Objectivity is a normative ideal in law, and the legal literature is filled with exaltations of judges’ capability to be objective, to apply this principle in everyday practice and thereby produce “just” legal decisions. Judges claim, and are presumed, to examine cases that come before them in a ‘clinical’ fashion, detached from any emotional baggage that the human stories in the criminal cases then try often carry, and to dispose them objectively. Despite a growing recognition that objectivity is elusive and problematic in the interpretation and application of legal rules, judges, in fact, all legal professionals describe their routine case dispositions as “objective”. The believe in the feasibility of “objective” application of law in sentencing decisions allow judges to define unusual victims’ stories of crime impact as ‘subjective, hence irrelevant. In the standard view, the structure of criminal law involves a ‘general part’ that applies ceteris paribus to the specific offences. While acts and intentions are central to the establishment of criminal responsibility, general defenses incorporating ideas of justification and excuse may operate where actus reus and mens rea have been established to exonerate the accused according to the nature of the defense invoked. What is necessarily lacking in law is a systematic judgment of the relationship between mental state, social and moral context, and criminal act, but the possibility of synthesizing different aspects of responsibility and judgment was consciously suppressed historically by the prioritization of cognitive states above matters of excuse and justification. The apparent neutrality of the criminal laws individual concepts of responsibility was achieved at the cost of neutering the process of judgment. This historical backdrop to legal practice cannot leave legal theory untouched. If emphasis is placed on international solidarity as the rationale for universal jurisdiction over international core crimes: there can be no doubt that the joint exercise of universal jurisdiction by an international criminal court is the most direct expression of international solidarity in the fight against the most egregious crimes. It is submitted that the universal approach is preferable as matter of international legal policy even if one starts from the assumption that it is the primary responsibility of (the) states (directly concerned) to prosecute an international core crime at the national level, an assumption which would be consistent with an alternative rationale of the universal jurisdiction principle. Domestic Violence and Criminal Law Domestic violence is more than a legal fiction bounded by certain rules of evidence. It is a complex, often counterintuitive series of behaviors about which no statute or case law can adequately inform an individual. Although under criminal law there is no specific offence of ‘domestic violence’, many offences may be used to apply to domestic violence, such as assault, false imprisonment, harassment, rape, criminal damage and attempted murder. Not all forms of domestic violence are illegal, for example some forms of emotional violence. However, these types of violence’s can have a serious and lasting impact on a woman’s or a child’s sense of wellbeing and autonomy. Whether the criminal law can protect victims is therefore dependent on the circumstances of the violence and the responses of criminal justice agencies such as the police, probation and courts. The Role of the Victim within the Criminal Justice System Today’s criminal justice system utilizes ‘the State as surrogate victim and the real crime victim is relegated to a role of (at best) lead witness.12For most victims of crime, domestic violence included, even their role as lead witness never comes as so few incidents enter the criminal justice system by way of reports to police. For the most part, until recently, crime victims had no rights at all, ‘only courtesies to be extended or withheld at the whim of the police or prosecutor.’13 In part to address this situation, legislative, service and procedural reforms aimed at addressing crime victims’ concerns about the criminal justice system have been introduced in most Western jurisdictions14 To a large extent, these reforms have resulted from campaigning by crime victim groups and their supporters. However, because the histories and activities of the movement against violence against women and that advancing the interests of victims of other crime have been relatively separate knowledge, understanding and use of these codes has been limited to date in domestic violence reforms. In essence these codes provide a framework for the crime victim to be incorporated in the procedures and key decision making points of criminal processing and confer obligations on criminal justice agencies that are both concrete and measurable, thereby enhancing transparency and accountability. In some jurisdictions, this includes a means of independently monitoring and reporting on performance and effectiveness. These reforms have been met with caution and even resistance by practitioners and administrators within the system. Even amongst victim advocates and researchers (from both feminist and ‘humanist’ perspectives), there is fierce debate about the role of the crime victim in the criminal justice system; about the capacity, willingness and effectiveness of the system to deliver key victim needs; and the impact of participating in the system on victims themselves and on justice agencies15 Current areas of debate and evaluation acknowledge that, even in jurisdictions which have legislated for crime victims’ rights, it is still by luck and good fortune rather than good government and effective client service that crime victims as a ‘class’ in society receive these rights in a consistent and comprehensive fashion16 Critiques of Criminal Justice responses to Domestic Violence Women’s participation in the criminal justice system as victims of domestic violence comes about with or without choice. Like most people, crime victims do not necessarily know anything about the various functions of its agencies, its procedures and standards of proof, and the victim/witness role within it. Some may say that it is ironic those feminists elicit state intervention in women’s interests from agencies that represent the pinnacle of patriarchal power17 Yet the fear that stalks many women living with domestic violence means that, more often than not, the protection ostensibly offered by police is critically necessary, if often faulty in execution. When a woman being beaten by her partner calls the emergency police number she dials into a complex system, which usually resolves cases based on institutional imperatives rather than on making victim safety central. Yet for nearly 20 years the justice system has consumed much of the energy of the various movements against domestic violence: The judicial system was criticized for failure to act independently of the victim against the use of violence and for its inability to protect the victim during the court process. Insistence by the police and prosecutors that women initiate and pursue legal action against abusers ignored the realities of battering and rendered the courts useless to most victims of battering. (Pence 1989, p. 9) When promoting legal reform, it is essential to understand the different roles and functions of the various criminal justice agencies1518 For those already engaged in improving coordinated responses, it becomes critically important to learn about the powers and levers that each agency has or potentially has in processing a domestic violence case. The criticisms of the criminal justice system’s response to domestic violence have been extensively documented19 It is, however, worthwhile re-capping some of them. The range of dilemmas and concerns has included: • criminal justice agencies traditionally did not treat family and especially domestic violence matters seriously, • despite a policy position that domestic violence is a crime, low charge and conviction rates suggested it was being otherwise considered, • there is a lack of systemic and case coordination within and across criminal justice agencies, • neither victim safety nor perpetrator accountability is practically and consistently addressed by criminal justice agencies, • insufficient attention was being paid to ‘belief on reasonable grounds’, evidence gathering, victim safety and arrest options at the time of the incident, • there appear to be irreconcilable dilemmas in balancing victim ambivalence over whether to proceed with responsibilities to uphold the criminal law and protect vulnerable persons. • domestic violence matters ‘dropped’ too easily from the prosecution process, • difficulties in proceeding with ambivalent or hostile witnesses, • difficulties in matching victim services to victim needs at the ‘right’ time, • a lack of procedural fairness for victims including timely notifications, • options for victim participation in the process were non existent length of time for criminal domestic violence matters to be heard in court and court delays that create further ‘attrition’ on the victim, • sentencing options are ineffective in reducing repeat offending, do not provide for victim input, and pay insufficient attention to compliance with court orders, • ineffective or non-existent mechanisms for gaining victim information as to the history and context of the abuse for police, prosecutors, courts and corrections. In response to these critiques, justice agencies have responded in a variety of ways. The Criminal and Civil Justice Systems responses to Domestic Violence This section identifies some of the problems that have characterized the criminal and civil justice systems responses to domestic violence, and the efforts made to overcome these deficiencies. As will be seen, recent attention to domestic violence has focused on enhancing the response of the criminal justice system to domestic violence, based on a feminist inspired understanding that the state has a central responsibility to deal proactively with domestic violence, holding offenders publicly to account for their behavior. Meanwhile, the traditional view of the civil justice system as a forum for the private resolution of disputes with no state involvement is being challenged by moves to allow state applicants to seek protective orders on behalf of victims. Such proactive involvement of the state raises questions about the status of the victim in the criminal and civil justice systems and the extent of control that she may legitimately exert over ‘her’ case. The criminal justice system20 Previous perceived failings Historically, the criminal law has been little used as a means of dealing with domestic violence. Research conducted into the operation of the criminal justice system has suggested that this limited use has derived in large part from the manner in which police, prosecutors and courts have exercised their discretionary power in these cases. The discretion enjoyed by police offerings in dealing with domestic violence has often been exercised in a manner which seems prejudicial to victims: failing to record incidents as crimes and failing to arrest offenders even when there were legal and evidential grounds for doing so, or ‘down-criming’ (i.e. charging a lower level of offence than the extent of the injuries and other evidence warrants). Similarly, prosecutors and courts have appeared to play down domestic violence: discounting cases, prosecuting on less serious charges than the evidence allows, and imposing low or non-custodial sentences. There are several factors which may explain this behavior; but note that not all complaints made here are unique to cases of domestic violence. The approach of the police and others has been accounted for in part by their failure to appreciate the context of domestic violence cases. Police called to an incident might assume that it was an isolated, one-off event and deal with it accordingly, when in fact there was an established pattern of abuse within the relationship. This ignorance would often be the result of organizational problems: failures to record incidents carefully or at all, and inadequate communication of information to officers attending the scene after an emergency call. Or, if this was the first time that the particular victim had sought outside help, the police might wrongly infer that it was the first time that she has been assaulted.21 These misperceptions have been reflected in courts decisions about breach of bail, remand and sentencing, failing to recognize that domestic violence may become increasingly severe if not stopped early on. The negative attitudes towards these cases have also been attributed to frustration at the perceived ‘fickleness’ of domestic violence victims, who one minute seek police protection, but the next refuse to cooperate in criminal proceedings. Given the centrality of victim testimony to otherwise unwitnessed crimes, this refusal may doom a prosecution to failure.22 Many police officers find themselves called repeatedly to the same household without getting ‘a result’, i.e. an arrest leading to a successful prosecution. Given this experience, police may be reluctant to proceed with a case unless they can be sure of the victim’s commitment to prosecution. The recent developments in the criminal and civil justice systems raise questions about the proper role of the state in responding to domestic violence. Inspired by feminist critiques of previous law and practice and their promotion of public responses to the problem, the new policies envisage a more active role for the state, fully exploiting its traditional powers in relation to criminal behavior, and introducing new powers fro the state to protect victims under the civil law. That said, the conversion of policy into practice appears to be problematic. However, before any attempt is made to invigorate their implementation as the new Home Office circular requires, or, in the case of section 60, to implement them at all, potential implications of the new policies for victims should be examined. Persons who ‘live or have lived in the same household other than by reason of one of them being the other’s employee, etc’ comprise a new class of potential applicants, and would include persons living together who are neither spouses nor cohabitants nor related in any other way, thus including homosexual partnerships in this category. Domestic violence victims are increasingly turning to the criminal justice system for assistance in ending the violence that jeopardizes their lives and well- being. They often are uninformed about the criminal justice process and naive about its power to end the violence in their lives. For battered women to be effective, committed participants in the criminal justice system, care must be taken to minimize the barriers to access and investment that have historically impeded empowered participation by battered women. The adoption of protocols attentive to victim issues by every component of the criminal justice system will greatly enhance justice-seeking efforts in domestic violence cases. Too often professionals do not identify domestic violence in the lives of female clients and are uncertain about remedial strategies even if abuse is identified. Other professionals seek to penalize and blame battered women for failing to protect their children The inadequacy of these professional endeavors endangers and isolates mothers and often interrupts the potential for strong alliance between mothers and children in the pursuit of safety. Professional initiatives to empower women so that they can seek lives free of violence and achieve the legal authority to protect their children and themselves from recurrent violence are preferred. Early intervention by professionals can avert the risks posed to children and their mothers in the context of domestic violence and can assist women in establishing stable and secure households independent of battering men. Prevention efforts may offer children the best hope for violence-free and loving families. However the judicial approach to domestic violence which is presently being adopted is highly effective and its features acclaim to objectivity, neutrality and universalism. Conclusion One benefit of the growing knowledge by individuals regarding their personal legal rights and the desensitization of society regarding the former shame associated with domestic violence is the increased willingness of individuals to step forward in such matters. As a result, a body of law has been developed and continues to evolve in the area of domestic violence. As recently as the mid-twentieth century, many persons aware of domestic violence in another house hold did not report it because the privacy of each family was considered superior to the rights of the individuals being abused. However, as society became increasingly open and the awareness of the enormity of the problem became more obvious, people began to report violence, organizations began to form to assist victims, and communities came together to support those men, women and children who found themselves in violent circumstances. As a result, state and federal government began to collect data and enact legislation to respond to the growing problem. Many consider the actions of the legislatures, courts and law enforcement agencies to still be in the formative stages; but there is no doubt the move is on to create legal standards designed to protect individuals against domestic violence. While in the past such matters were dealt, at best, with things such as temporary restraining orders, the supporting laws were vague enough that these orders were difficult to enforce. Today, those laws have been elaborated and better defined to give law enforcement real authority to intervene in cases of domestic violence even when a restraining order is not in place. Legal sanctions against domestic violence are not limited to the criminal law. Victims of domestic violence may request a civil protection order. Recent legislative changes in most jurisdictions now make these court orders easier to obtain. They are no longer limited to women who have filed for divorce and may be issued on an emergency basis without the other party present. However, civil protection orders are not self-enforcing. There is even a danger that a civil protection order may induce a false sense of security among some women who are at risk of continued battery from a former intimate. REFERENCES Fagan, J. (1988). "Contributions of Family Violence Research to Criminal Justice Policies on Wife Assault: Paradigms of Science and Social Control." Violence and Victims, Vol. 3, No. 3. BIBLIORAPHY Cretney, Antonia and Davis, Gwynn(1997) “Prosecuting Domestic Assault: Victims Failing Courts, or Courts Failing Victims?” The Howard Journal of Criminal Justice, Dobash, R E, Dobah, R P, Cavanagh, K and Lewis R (2000). Changing Violent Men. Sage Publications Inc: United Kingdom. Eaton, M. (1994). Abuse by any other name: Feminism, difference and intralesbian violence in The Public Nature of Private Violence: The Discovery of Domestic Abuse, eds M. Fineman & R. Mykitiuk, Routledge, London, pp. 195 – 223 Edwards, S.S.M. (1996). Sex and Gender in the Legal Process. London: Blackstone Press. Hanmer, J., J. Radford and E. A. Stanko (1989), ‘Policing Men’s Violence: An Introduction’ in J. Hanmer, J. Radford and E. A. Stanko (eds), Women, Policing and Male Violence: International Perspectives, London and New York, Routledge Hillenbrand, S. & Smith, B., 1989, ‘Victims rights legislation: An assessment of its impact on criminal justice practitioners and victims’. Unpublished report Israel, M. 1999, ‘Victims and Justice’, in R. Sarre and J. Tomaino (eds), Exploring Criminal Justice; contemporary Australian themes, Institute of Justice Studies, South Australia Kelly, D.P. and Erez, E. (1997). ‘Victim Participation in the Criminal Justice System, in R. Davis, A. Lurigio and W. Skogan (eds.), Victims of Crime,2nd edition, Sage, Thousand Oaks Kershaw, C., Budd, T., Kinshott, G., Mattinson, J., Mayhew, P. and Myhill, A. (2000) The 2000 British Crime Survey. Home Office Statistical Bulletin 18/00. London: Home Office Mirrlees - Black, C., Budd, T., Partridge, S. and Mayhew, P. (1996) The 1996 British Crime Survey, Issue 21/98, London: Home Office Research, Development and Statistics Directorate. Pence, E.1989, The Justice System Response to Domestic Assault Cases: guide for policy development, Minnesota Program Development Inc, United Kingdom. R.C. Davis, A.J. Lurigio, & W.G.Skogan (Eds.), Victims of Crime (2ed. pp. 86-107). Thousand Oaks,CA: Sage. Cook, B., David, F. & Grant, A. 1999, Victims’ Needs, Victims’ Rights: Policies and programs for victims of crime in Australia, Research and Public Policy Series No. 19, Australian Institute of Criminology, Canberra. Snider, L. 1998, ‘Toward Safer Societies: punishment, masculinities and violence against women’, British Journal of Criminology, Vol. 38, No.1, pp. 1-39 Walby, Sylvia and Johnathan Allen (2004). Domestic violence, sexual assault and stalking: Findings from the British Crime Survey. Home Office Research Study 276. Home Office: London. Yearnshire, S. (1997) How can we help? - the role of general practice,in S. Bewley, J. Friend and G. Mezey (eds) Violence against women, London: RCOG Press Ziegenhagen, E. (1977). Victims, Crime and Social Control. New York, Praeger Publishing Read More