Legal Remedies to Victims of Domestic Violence - Case Study Example

Legal Remedies to Victims of Domestic Violence Introduction Domestic violence has often been reported in the news where the killing of a woman or a child is involved (Gould, 2003). These happen in relationships where an intimate partner or the former partner manifests a threatening behavior whether it be physically, psychologically, sexually, emotionally or even financially against their partners or other family members (Home Affairs Select Committee Report on Domestic Violence, 1993). Domestic violence was said to account for 15% of all violent incidents that happen (Home Office, 2006). Various legislations and common laws were applied to solve this problem. This paper will cite and analyse these remedies to victims of domestic violence and will give a conclusion thereafter. Remedies The Family Law Act 1996 provides a “civil remedy for molestation, violence and occupation” (DCA, 2004). A strict standard has been set for any claim of injunction or occupation order to protect victims of domestic violence (DCA, 2004). The occupation order controls how a certain home occupied by the couple and their children can be shared to prevent incidents of domestic violence (FLA 1996). Where abuser is absent from such property, he may be prevented from re-entering or from coming to such area (FLA 1996). Order may also include their duration which are often “between six months and one year” or until “further order” (DCA, 2004). The courts in issuing such order will determine through the so-called “balance of harm test” whether or not the individual and/or the child will be put to a “significant harm” if the order is issued and will consider other relevant circumstances (FLA 1996). The non-molestation order, on the other hand, is also contained in the FLA 1996 that restrains any person from making or causing to make any threatening violence or molestation such as making threats, pestering, harassment or intimidation or making another person do such acts (FLA 1996). In case of breach, there is a so-called “Power of Arrest” allowing a police officer to arrest without warrant the respondent who is found in breach of the order (FLA 1996). Although no definition of molestation is given in the said Act (DCA, 2004), this gives more leeway to cover any act which may threaten or cause to threaten any person of domestic violence. Section 60 is an important provision, which refers to “third party orders” that allows a particular individual or person to obtain occupation or non-molestation orders for the benefit of the victims (FLA 1996). This provision was said “not to be currently in force” (DCA, 2004), and which is very significant since there may be instances wherein the victims may keep silent or do not apply for such orders due to their incapability. This provision must be enforced to cover victims who are unable to apply due to some incapacity, by the filing of some other person in their behalf. This would not only speed up the filing of said orders to protect victims of domestic violence, this would also lessen withdrawn cases because of the problem as to the personality of the person filing the application (Edwards, 2000). Another provision which must be looked into, is the coverage of those persons who can file for such orders especially in instances where the victim did not live with their abusers, unless there is some form of promise of a future marriage between the parties involved (Edwards, 2000). These victims deserve the same protection as those persons who live with abusers. The Protection from Harassment Act 1997, gives both criminal and civil remedies to victims of domestic violence (Protection from Harassment Act 1997). This Act which was originally intended to tackle the problem regarding stalking, is also being used by those who do fail to establish the ‘association’ requirement of “cohabitation or family relationships” (DCA, 2004). This act prevents the respondents from doing acts of harassment and grants victims claims for damages done (PHA 1997). Limited non-molestation orders are given and unlike the Family Law Act, there is no occupation order given (DCA, 2004). Application for injunction or damages may be filed by any person against any individual found in “actual or apprehended breach” of this Act which, unlike in criminal proceedings requires that there were at least two previous incidents of harassment done by the defendant against the victim (PHA 1997). The application is filed with either the High Court or the county court (PHA 1997). The victim can herself file or have a solicitor file on her behalf (PHA 1997). The applicant also has various choices in pursuing his or her claim or injunction as to the amount of the claim along with the injunction (PHA 1997). In case there is a breach of any provision of the order, it will be considered as a criminal offence (PHA 1997). Unlike the Family Law Act 1996, there is no Power of Arrest in this Act, but a warrant of arrest may be applied for in the court which granted the injunction order (DCA, 2004). Oath of the victim and finding of the judge as to reasonable grounds that a breach has been made are requisites before a warrant may be issued (PHA 1997). The Housing Act 1996 provides a civil remedy wherein a third party or their landlord may take action on allegation of “a tenant being violent towards another tenant” (Housing Act 1996). This protects victims of domestic violence in an indirect manner by an act of the landlord who takes action against the alleged abuser who still remains in the said property by regaining the property (Housing Act 1996). However, this Act does not provide for injunction in some other location, nor allow the victim of violence to continue dwelling in the said property (DCA, 2004). Under the Children Act 1989, a “suspected child abuser” may be taken away from the home and if needed, the court may issue the power of arrest as well (Children Act 1989). These orders will only be granted if the strict standards are followed such as a finding from the Local Authority of a reasonable ground to believe that more harm shall be caused to the child if such an abuser is not taken away from the said premises (1989). Finally under the Adoption and Children Act 2002, the definition of harm is updated by taking into consideration not only if the child has indeed suffered or likely to suffer a harm, but also the harm effected on a child who witnessed domestic violence (Adoption and Children Act 2002). This definition seeks to further reinforce cases of domestic violence and prevent harmful effects on children (Surrey County Council, 2005). There are criminal sanctions which the abuser may be held liable for in cases of domestic violence. The Domestic Violence, Crime and Victims Act 2004 amends the Family Law Act 1996 which primarily provides remedies for domestic violence cases (Brammer, 2006). This act reinforces the rights of victims and witnesses, establishes offences which a person may be liable for, and provides stronger sanctions for abusers (DVCVA, 2004). This makes the breach of a non-molestation order as a criminal offence (DVCVA, 2004). Aside from this, non-molestation orders and occupation orders may be made against ‘associated person’ which is not only limited to spouses and cohabitees, but include persons “who have or have had an intimate personal relationship with each other which is or was of significant duration,” hence, those included are persons who have not necessarily married or cohabited and also same sex couples (DVCVA, 2004). Other features includes the common assault becoming an arrestable offence, the “causing or allowing the death of a child or vulnerable adult” and in instances where the respondent is acquitted of the offence in relation to this act, a restraining order for the victim’s safety and protection which may still be imposed by the courts (DVCVA, 2004). Vulnerable adult in this case is defined as persons aged 16 or over who are unable to protect themselves because of physical impairment or mental disability or illness, old age or other similar circumstances (DVCVA, 2004). The penalty for “causing or allowing the death of a child or vulnerable adult” is an imprisonment of 14 years. Persons held liable are those who may be a member of the same household and was in frequent contact of the victim, that either caused the death of the victim or failed to take such reasonable steps to protect the victim from such harm (DVCVA, 2004). This not only punishes the act itself of causing death but also the omission of not having prevented such harm to the victim (DVCVA, 2004). Reasonable steps would include reporting or contacting authorities or those responsible, ensuring the safety and protection of the victim or immediate treatment for any injury or illness and other steps to avoid the foreseeable harm (DVCVA, 2004). Section 5(d)(ii) of DVCVA 2004 is of significant importance since this punishes the act of failing to protect the victim which covers those partners involved who were said to have done nothing while the defendant is in the act of killing the child (Herring, 2006). The reason for this is to prevent cases where it is hard to determine who among the parents did such grievous harm, but knowing that either of them has committed murder or manslaughter, that may give an easy way of getting away with murder due to difficulty of pinpointing who is guilty and eventually leading to an acquittal of the parents (Herring, 2006). The Act imposes that the parent should ensure that children are protected from harm and protect the life of the child, having a parental responsibility over the child (2006). However, as commented by Herring, this does not take into consideration the circumstances under which the woman was into and the possibility that such woman is also a victim of domestic violence (2006). In one case a woman aged 21, named Sandra Mujuru, was given a two-year community order for the murder of her four year old baby (Stephens and Mujuru [2007] EWCA Crim 1249). In this case, the Court of Appeal reasoned that Mujuru allowed Jerry Stephens, her partner to murder their baby. While Stephens was given a life sentence for the murder, she was also jailed for more than one year while awaiting trial, aside from the two-year community order (2007). The court explained that despite Mujuru having known that Stephens broke their baby’s arm or done such other harm, she still left the baby to his care and did not take appropriate steps to protect their baby (2007). This however, failed to take into consideration Mujuru’s situation that she was an asylum seeker who escaped from Zimbabwe and that her partner Stephens was twice her age with a relatively short temper (Herring, 2006). The Court should have taken into consideration Ms. Mujuru’s vulnerable position at that time (Herring, 2006). In another case, a 21 year old Rebecca Lewis, was sentenced to six years imprisonment for failing to prevent the murder of her baby, done by her partner Andrew Lloyd (Eveleigh, 2006). During the trial it was found that Lloyd threatened Lewis of killing her if she reported to authorities and that such incidents of harm have been reported to the local social services but then their invitation for an appointment to the concerned persons was sent to the wrong address (Herring, 2006). Hence, Lewis was imprisoned for failing to protect her child mainly because of coercion by her partner, but authorities had no such responsibility under the law in case of their failure to protect the child concerned (Herring, 2006). There have been several studies to show that child abuse and adult domestic violence can occur at the same time (Bell et al., 2004). Moreover, it was said that most of the cases pertaining to child sexual abuse also necessitate the occurrence of domestic violence (Humphreys, 2000). Their being subjected to domestic violence should therefore be a defence specified for such a charge of failing to protect their child (Herring, 2006). The effects of domestic violence may be in different forms including having a psychological impact on the victim (Humphreys & Thiara, 2003) or the victim becoming emotionally reliant on the abuser (Dutton & Painter, 1993). It may even affect a woman’s behavior that it can distort how she views reality or even blame herself for such violent acts of her partner (Miccio, 1999). Furthermore, it was said that women and children also face other challenges such as financial insecurity, the possible blame of depriving the children from the father, and other such difficulties (Becker, 1995). Aside from this, women often place themselves in the harm’s way of the abuser in order to protect their child from infliction of harm (Jacobs, 1998). This provision may then place such burdensome obligation on the mother just to protect the child, while the duty of the state to protect children’s rights may be disregarded (Herring, 2006). If this obligation then were imposed, state must guarantee that there are adequate services in place for women to escape from such violent acts of their partners or given other assistance such as shelters, financial help and other relevant support, which unfortunately is inadequate at the moment (Toren, 2004). The interdependency of the protection of the carer, or the mother, and the child, must also be recognized, and cannot be separated from the other (Magen, 1999). Attention has also been focused on the mother instead of the person who actually killed or inflicted injuries to the child (Herring, 2006). Hence, although this particular provision has the noble intention of protecting children, it however directs the prosecution of women who are also victims of such violence (2006). This may also disregard the state’s duty not only to protect children from any kind of abuse, but also those subjected to domestic violence as well (2006). Conclusion There are various civil and criminal remedies available to victims of domestic violence. It has mostly taken into consideration the prevention of further harm by issuing orders or other powers within the court’s prerogative to deter acts of violence by the abuser, and the right of the defendant to due process through strict standards. However, criminalization of the failure to protect the child from risk under the Domestic Violence, Crime and Victims Act 2004, it fails to take into consideration the circumstances under which women may have been subjected to or their possibility of themselves being victims of domestic violence. Examination must then be made as regards this provision as this may fail to recognize the real duty of protecting not only the child but also the mother or women who are subjected to the same form of harm. References Adoption and Children Act 2002. Becker, M. (1995). “Double Binds Facing Mothers in Abusive Families: Social Support Systems, Custody Outcomes, and Liability for Acts of Others.” 2 University of Chicago Law School Roundtable 13. Bell, M.K., Rivara, F. & Barnish, M. (2004). Domestic Violence a Literature Review. Home Office London: HM Inspectorate of Probation. Brammer, Alison (2006). Domestic Violence, Crime and Victims Act 2004. Journal of Adult Protection. Retrieved on 8 April 2009 from: http://findarticles.com/p/articles/mi_qa4124/is_200605/ai_n16629537/?tag=content;col1 Children Act 1989. Department for Constitutional Affairs (2004). Domestic Violence: A Guide to Civil Remedies and Criminal Sanctions. Retrieved on 8 April 2009 from: http://www.dca.gov.uk/family/dvguide04.pdf Domestic Violence, Crime and Victims Act 2004. Edwards, Susan (2000). Reducing Domestic Violence …What Works? Civil Law Remedies. Retrieved on 8 April 2009 from: http://www.homeoffice.gov.uk/rds/prgpdfs/civil.pdf Eveleigh, R. (2006). “My Beautiful Boy was Murdered by his Mums Evil Lover.” Mirror, 13 November 2006. Family Law Act 1996. Gould, P. (2003). Domestic Violence: The Legal Remedies. BBC News. Retrieved on 8 April 2009 from: http://news.bbc.co.uk/1/hi/uk/2761477.stm Herring, Jonathan (2007). Familial Homicide, Failure To Protect And Domestic Violence: Whos The Victim. Criminal Law Review 2007, DEC, 923-933. Home Affairs Select Committee Report on Domestic Violence, 1993. Home Office (2006). Lessons Learned From The Domestic Violence Enforcement Campaigns. Retrieved on 8 April 2009 from: http://www.ge.ch/violences-domestiques/doc/domestic-violence-etude-anglaise.pdf Housing Act 1996. Humphreys, C. (2000). Child Protection and Woman Protection: Links and Schisms. An Overview of the Research. Retrieved on 8 April 2009 from: www.womensaid.org.uk/landing_page.asp%3Fsection%3D0001000100090005000500090010+Humphreys,+C.+(2000).+Child+Protection+and+Woman+Protection+links&cd=1&hl=tl&ct=clnk&gl=ph Humphreys, C. & Thiara, R. (2003). “Mental Health and Domestic Violence: I Call it Symptoms of Abuse.” 33 British Journal of Social Work 209. Jacobs, M. (1998). “Requiring Battered Women Die: Murder Liability for Mothers Under Failure to Protect Statutes.” 88 Journal of Criminal Law and Criminology 579. Magen, R. (1999). “In the Best Interests of Battered Women: Reconceptualizing Allegations of Failure to Protect.” 4 Child Maltreatment 127. Miccio, G. (1999). AA Reasonable Battered Mother? Redefining, Reconstructing, and Recreating the Battered Mother in Child Protective Proceedings.” 22 Harvard Womens Law Journal 89. Protection from Harassment Act 1997. Stephens and Mujuru [2007] EWCA Crim 1249. Surrey County Council (2005). Adoption and Children Act 2002 Update. Retrieved on 8 April 2009 from: http://www.surreycc.gov.uk/education/sbdb.nsf/webviewtitle/222865fa3aa7525e80256faf003cc82f?opendocument&txt=y Toren, A. (2004). Survey of Domestic Violence Services. London: Women’s Aid. Read More