Domestic violence | Free Family Law Essay
Should domestic violence always be prosecuted? Discuss current dilemmas and policies in policing domestic violence.
Mullender (1996) contends that domestic violence is a problematic term because it does not cover everything that occurs in a domestic situation and it assumes that the people concerned live together. The fact of the matter is that violence and harassment often continue long after a relationship is ended and most women who are murdered in this context are murdered by ex-partners. This type of violence includes battering, emotional and psychological violence, verbal abuse and rape. Until 1991 marital rape was not recognised, marriage meant a consent to intercourse. In 1991 the courts in England and Wales recognised that forced sexual intercourse within marriage was, in future, to be regarded as rape. Maguire (1988) maintains:
I reject all...titles and descriptions that obscure the real nature of the violence; that it is violence committed by men against the women they live with, have lived with or are in some form of emotional/sexual relationship with...giving any form of violence a name which does not address its nature and causation diminishes its importance (Maguire, 1988:34).
At some time in their lives more than forty percent of women experience violence, and in most of these cases this violence is at the hands of a man (Dobash and Dobash,1992).. Some research suggests that this figure may be an underestimate as many such assaults go unrecorded. Hoff (1990) contends that this is due to the fact that most women who are battered are not only extremely frightened but also experience a sense of shame In spite of reforms and consciousness raising efforts, many women who do report violence find the attitudes of doctors, of the police, and of court officials, to be less than helpful. Abbott and Wallace (1997) contend that in America, the greatest number of injuries to women occurs in the home. They further highlight the fact that this figure is higher than the number of those injured in road accidents, mugging, or those suffering from cancer combined. Large numbers of women are raped every year and many such assaults go unrecorded, yet this has been a concern of feminists since the time of the suffragettes but spoken of more openly since the 1970s.
...the fear of rape affects all women. It inhibits their actions and limits their freedom influencing the way they dress, the hours they keep, the routes they walk. The fear is well founded, because no woman is immune from rape (Clarke and Lewis, 1977:23).
The reason most domestic assaults are denied or go unreported is, at least in part, a result of society's refusal to recognise such assaults as an infringement of women's human rights (Dobash and Dobash, 1992). Men's violence towards women is a result of the power structures that exist in society. While there is widespread recognition of this, it is still the case, in many areas of society, that women who are subjected to this type of violence are in some way responsible for his behaviour.
Historically, married women in particular have had no protection in law against violence in the home. The legal position in England until the end of the nineteenth century was not whether a man had beaten his wife, but how severe that beating was. The legal ruling was that a man could legally beat his wife providing he used a stick that was no thicker than his thumb (Abbott and Wallace, 1997). Up until the Second World War, particularly in working class households, it was still accepted that many men would hit their wives or girlfriends. It was not until the late nineteen sixties that this type of violence began to be a matter of public debate.
Society, however, still holds a battered woman responsible for what has happened to her. Abbott and Wallace (1997) identify three explanations for the violence against women. The first two are from within what the authors call "malestream theory" (1997:246) and the third is a feminist critique of the first two. The first theory blames domestic abuse and rape and sexual assault on provocation by the woman. A woman is seen to incite these actions by her behaviour, dressing provocatively for example, or failing to fulfil what might be seen as her wifely duties. In the second perspective (one which this chapter explores) on the one hand women are labelled masochists and on the other men who rape and/or beat their wives are believed to be mentally ill or under the influence of drugs or alcohol. This means that either way the man is relieved of responsibility for his actions. This paper aims to investigate current policies and practices with regard to domestic violence. It will examine the difficulties in policing domestic violence and pose the question of whether domestic violence should always be prosecuted.
Background to the Problem
Britain is a patriarchal society and in all patriarchal societies the female is subordinate to the male. Living in a patriarchal society means that women have struggled for equality in marriage, equal rights over their children, equal opportunity in employment, equal pay, and equal treatment before the law (Abbott and Wallace, 1997). Women have, as child bearers and nurturers, been dependent on the male, thus, they have had less social and political rights. Historically, a woman had no recourse to law if she was beaten, as only men could institute divorce proceedings. Neither had she any rights over her children. In Britain, equal guardianship of the children from a marriage was not granted to women until 1925. Historically a woman did not have much control over her reproductive functions. In 1861, abortion was made a criminal offence, even if done as a life saving act. This was later modified, and finally repealed in 1967. However, there is still a strong anti-abortion lobby and members continue to campaign for it to be made illegal again. The law is made to serve the interests of those with power in society, Marx's view of the law was that one should always ask the question of who benefits (Bilton et al, 1996). In Britain the law is patriarchal in nature, it is made by men and favours their interests over those of women. In cases of spousal/partner murder, women are five times more likely to be the victim than men.
In Greater London, there is one domestic violence murder every 11 days and the Metropolitan Police attend around 177 incidents every 24 hours. (Stanko et al. 1998).
Some women kill their violent partners after years of abuse and this receives far more publicity than men who kill women. Women who retaliate in this way are often harshly dealt with by the courts which refuse to recognise the circumstances in which women kill. Such women are usually convicted of murder, whereas men are more likely to be convicted of manslaughter. There have, however, been successful campaigns to have women's sentences overturned (Mullender, 1996).
Before the 1970s when women's refuges came into being there was very little help for women who had been subjected to male violence. Many victims never enter a refuge, however, there are 250 refuges in England and Wales and these report up to 63,000 admissions every year. Men who abuse women also emotionally abuse any children involved and sometimes will physically abuse them also. Changes in family law means that judges can order women to produce their children for contact with a violent partner. Family mediation in such cases is another hurdle where women are expected to sit across the table and negotiate with a man who may have thrown them down the stairs or stabbed them and may also have done this in front of the children. Men who will use contact/residency disputes to further abuse women who have left them are thus aided and abetted by professionals who do not fully understand the situation.
Women's Aid has called for a change to the law to make sure family courts grant safe child contact with violent parents after separation, with mandatory risk assessments, and supervised contact centres in every local area. As it stands the law does not require family courts to ensure contact is safe for all those involved. Women's Aid knows of 10 children killed during contact arrangements since 2002, and at least 21 children who have been ordered by the courts to have unsupervised contact with violent fathers.
Successive governments have failed to bring in legislation that deals effectively with men who abuse their wives. While the present government has expressed concern over domestic violence, and has promised funding to raise awareness, at the same time it has only, in recent years, brought some changes to the law. Policing domestic violence, dealing with offenders and their victims costs the government billions of pounds and this is a key factor in how violence towards women is dealt with. In 2000 research undertaken for the Home Office by Hammer and Griffiths (2000) conclude that:
Cost-benefit and cost-effectiveness need to be considered in relation to achieving gains in prevention, protection and provision. New projects should address current policing issues by evaluating the organisation and management of the policing of domestic violence as well as the outcomes for those experiencing and committing domestic violence along with other agency responses where relevant (Hammer and Griffiths, 2000).
In Canada, and in some areas of the United States police have automatic powers of arrest and imprisonment in cases of domestic violence. The present government will not bring in this kind of legislation because they do not think that current evidence justifies that need. Although the Criminal Justice Act recognises domestic violence as a crime against the person, the onus is still on the woman to press charges. Many women, therefore, make an official complaint and later withdraw it because they are too frightened to do otherwise (Hoff, 1990; Dobash and Dobash, 1992). Within the discourses of the Government and the helping professions there is widespread concentration on the abuse itself, why women put up with it, why they do or don't leave, and on their mental state. There is, however, less emphasis on the perpetrator of abuse, who always has an excuse for his actions.
The leniency of the courts towards men who kill women because they claim they could no longer put up with being nagged, means that in effect a woman is held responsible for her own death. The continued acceptance of men's excuses legitimates violence against women. Abuse does not necessarily stop once a woman has left the relationship. The abuser may continue to disrupt his ex partner's life, often by following her from place to place. The result is that many women end up moving from one refuge to another to escape violent men. Restraining orders are a waste of time because of the gap between the man turning up and the police arriving. Many women who are assaulted, even if they are not living with the abuser are to frightened of ramifications to call the police. Much of the violence perpetrated against women is initiated by men in a sober condition. Government claims that many of these assaults are also alcohol or drug related again lets the man off the hook.
Policing 'domestic' Violence
The policing of partner/ex-partner violence is a problematic and patchy area. The setting up of DVUs, Domestic Violence Units in the 1990s did little to alleviate the situation. Most survivors of abuse still feel that some policemen stick to the old view of 'it's just a domestic.' One of the reasons for this is that it is often neighbours who call the police, rather than the woman who may be frightened. Although nowadays the police do have automatic powers of arrest in the case of abusive men they are reluctant to do so. This is because 'domestic' violence cases are extremely difficult to prosecute because they still rely on the woman bringing charges. The government's women and equality unit website says that:
In 2002 the Central Police Training and Development Authority (Centrex) and the Association of Chief Police Officers published a new six part training pack on domestic violence. Each of its modules covers a different aspect of police work, ranging from the initial handling of a 999 call through to dealing sensitively with victims, as well as working with the local community and other agencies to prevent violence and hold offenders to account. The police are also refining their procedures to provide simpler and more reliable assessments of the risk offenders pose to their victims.
This last is particularly problematic, because if a policeman does not think that a man poses a significant risk then they won't arrest but will caution him and go away again. This is not a sufficiently acceptable way of dealing with the situation. Men who abuse women are renowned for being house devils and street angels and can change their attitudes at will, making it difficult to assess whether he is violent at all. This then places women in more danger. Often, if the police don't arrest the man they will get him to leave the house and inform the woman that she should contact a refuge, some police will offer to take the woman to the station while they contact social services to try and arrange an emergency place of safety. Women are not always ready to enter a refuge because it takes considerable strength and courage to make a decision of any kind if they have been systematically abused. It is often the case that when the police encounter a situation the violence has been going on for some time and the woman is cowed and submissive and scared.
Police have a report of a domestic violence every minute and most officers will go out to what sounds as if it is the most serious first. This means that in some cases where the police have been called, they may not arrive until after the incident is over and all seems calm, if the man is not arrested then the violence is likely to begin all over again. When the police do arrest and can persuade the woman to bring charges they can only be brought on a specific incident. Even though the abuse may have been going on for years and escalating all the time this is not allowed as evidence and so many abusers get off with a fine or community service which is no help at all to the woman in question.
Some studies suggest that the police only record one out of four incidents as a crime and that this often because situations have been handled inefficiently, i.e. police have not used their automatic power of arrest. Sometimes police mistakenly arrest the victim and leave children alone in the house with the perpetrator. In some areas arrest rates are as low as 13% when the police will give out 80%. While the new Domestic Violence and Victims Act 2004 states that if police has suspected that abuse has occurred then they can go about collecting evidence and if sufficient evidence exists then the decision to prosecute rests with the police and the Crown Prosecution Service. However, during the time it takes to collect such evidence, unless the perpetrator is held on remand, then the victim will be subject to further abuse and could end up as a murder statistic. Under the new act police have automatic powers of arrest if there is evidence of actual bodily harm. Both Women's Aid and Victim Support say that they welcome the act but do not believe that it goes far enough. It is unclear whether women will be compelled to give evidence against their abuser if he is prosecuted by the police and the Crown Prosecution Service. They may be excluded under the vulnerable witness clause. The Act also makes provision for same sex couples.
Women have been campaigning for greater recognition of the severity of male violence against them for a considerable number of years. The fact that it has taken so long to come this far is due to the fact that we still live in a male dominated society that has regarded men's violent treatment of women as part and parcel of life for too long. If the position had been reversed then proper and punitive legislation would have been introduced a hundred years earlier.
This paper has looked at domestic violence and the problems associated with its policing. It is clear that the number of women who are victims of male violence is considerable as so many incidents go unrecorded and research has found that women have probably been assaulted more than thirty times before the police become properly involved. Police do not always use their powers of arrest in cases of domestic violence and may wrongly assess the risk that the abuser poses. Changes in the law concerning domestic violence need to be supplemented by changes in family law. Cafcass officers and social workers may often make recommendations to the courts that place survivors of domestic violence at further risk. Some professionals will not acknowledge a woman's fear of facing her children's father across a mediation table, neither do they acknowledge that this system places her in a position where she can be further abused and where her children may be in danger of emotional harm and in some cases, in danger of their lives.
For many years male violence against women has brought untold misery into the lives of countless women and children. This has happened because of the refusal of a male dominated society to recognise that not only is this behaviour wrong, it is criminal. Domestic violence is a crime. Automatic prosecution under current proposals has too many loopholes and places too much pressure on women who have been isolated by their abusers and terrified into submission. In the case of male violence against women, automatic arrest should happen every time. This should always be followed by an automatic prison sentence as it is in Canada. In this way violent men may have second thoughts about continuing to abuse their wives, co-habitees, ex-wives and girlfriends. It is long past time that the world became a safer place for the other half of the human race.
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