Domestic Violence is a worldwide crime
Domestic Violence is a worldwide crime and occurs across cultures in every social grouping in society regardless of age, race, religion, gender or sexual orientation. It is a fundamental violation of the human rights of each and every victim whether male or female adult or child. Unfortunately, it is a feature of contemporary family life in Ireland today. In the past domestic violence was accepted as a man's right but today it is seen more as a public policy issue and not just a private matter between husband and wife in their own home. It can be defined as abusive, violent behaviour by one or both partners in a close intimate relationship and it can be physical, sexual, emotional or psychological abuse (Women's Aid Model of Work).
Almost one in five Irish women have experienced domestic violence at the hands of their husband, current or former partner and this number is just from reported cases. The tactics used by the perpetrators of domestic violence are controlling, deliberate and repetitive. The victims are made to feel worthless, degraded and in fear for their lives. Sometimes just the threat of violence can have an equally devastating effect on the victim (Women's Aid: What is Domestic Violence).
Although women make up the vast majority of victims of domestic violence, children and men are also victims. Research shows that children are affected because they are present during the abuse and a high percentage of men who abuse women also abuse children (Women's Aid Model of Work). Violence also occurs when a woman is pregnant and this can cause threatened or actual miscarriage (Kelliher & O'Connor 1995). In a study at the Rotunda Maternity Hospital in Dublin, 12.5% of women reported having experienced domestic violence during a pregnancy and 75% of these women had experienced violence during their current pregnancy (Women's Aid Model of Work).
In 2008 there were 1,829 incidents of child abuse reported to the Women's Aid Helpline. These were incidents where the abuser in the relationship was abusing the children as well as the mother. Some incidents include, hitting new born babies, forcing children to eat off the floor and threatening physical abuse. In addition to this there were another 3,408 calls where children disclosed they were witnessing domestic abuse against their mother. According to Children First National Guidelines for the Protection and Welfare of Children and Young People, the witnessing of domestic violence is a form of emotional abuse (Women's Aid 2008). In the report, Making the Links, abused women stated that 64% of children were in the same room when the abuse took place and that 90% of children were in the next room. An abuser may also use the children as part of their power and control tactics, by threatening to take them away or threaten to harm them (Kelliher & O'Connor 1995). In the book, On Behalf of the Child (1995) by Harry Ferguson and Pat Kenny it states that;
‘The nature and quality of family experiences influence not only how a child copes with life growing up but also helps to determine the quality of that youngster's intimate relationships, parenting and mental health in adulthood'.
According to the 2005 study by the National Crime Council in association with the Economic and Social Research Institute, 15% of women and 6% of men are victims of severe domestic abuse. The ACCORD research (2003) found that women were the abusers in 30% of cases and men were the abusers in 23% of cases (AMEN: Research on Domestic Violence). Most men who experience domestic violence cover it up because of invisible social barriers such as, disbelief and fear of being laughed at. There is a stigma and silence surrounding male domestic violence which traps men in these violent relationships. There are very little services for men and there is also the problem of false allegations of abuse being made against men in separation or divorce cases. In April 1999 Judge Peter Smithwick, President of the District Court spoke out about trivial complaints being made and added that judges have to be on their guard against false allegations and exaggerated applications (AMEN: Men and the Domestic Violence Act 1996).
Domestic violence is also a factor in same sex relationships. This has come to light in recent times with the emergence of the gay rights movements. Studies have shown that domestic abuse in same sex relationships are higher than that of heterosexual relationships. Domestic Violence law in Spain protects heterosexual and lesbian married couples but gay couples are not included. Of the 120 domestic violence cases in 2008, 27 were men which include several gay men (Spanish Law and Gay Domestic Violence 2009). It will be interesting to see how this issue and other gay rights issues are dealt with in Ireland in the coming years.
The causes of domestic violence are complex with many different factors influencing it. One of the most common factors is the generational cycle of violence in a family. According to the Intergenerational Transmission Theory, children who grow up in homes where physical violence is prevalent are more likely to use violence in later life. A child is socialised into accepting violence as a means of resolving conflict or gaining control if that is what they are witnessing in the home. This can lead to problems in later intimate relationships for the child (Horgan 2004). A child who sees his mother being beaten and disrespected might grow up with the idea that all women should be treated that way. Although another study by Mullender and Morley 1994 found that there is a correlation between children growing up in a violent home and being an abusive adult but it doesn't find it to be a cause (Department of Justice Equality and Law Reform).
There is also the question of unequal power and control within relationships between men and women. The goal of the violent act is to gain power and control over the other person (Women's Aid Model of Work). Traditionally men believed that their wife belonged to them and she was their property. They didn't see the woman as equal and believed they were entitled to treat them as they pleased. It is believed that the expression ‘rule of thumb' comes from the practice of a man using a stick the width of his thumb to beat his wife and children if they didn't obey his orders. But not all domestic violence is down to the power and control factor. Responsibility lies with the abuser regardless of any social or other influence (Women's Aid Model of Work).
It is believed that domestic violence is a learned behaviour rather than as a result of personality, unhappy relationships, stress or alcohol misuse. Stress may be a factor in domestic violence but it is not a cause. Conflict due to financial pressure may lead to domestic violence. Domestic violence increases when there is extra financial pressure on people (The Women's Health Council 2007). Drug and alcohol use which results in out of control behaviour may lead to domestic violence but it is not a cause of it. Abusers who drink or use drugs might use this as an excuse for their abusive behaviour. A study of convicted abusers found that alcohol was a factor in 62% of the cases and 48% were dependent on alcohol (Causes of Domestic Violence). Research also shows that men will use violence to satisfy their own needs for sex or domestic services, such as, having the dinner on the table on time or clothes washed and ready to wear. Some abusers believe that sex is another domestic service that they are entitled to whenever they want it (Women's Aid Model of Work). Over the past seventeen years under the marital rape legislation there has only been one conviction and one in four perpetrators of sexual violence are partners or former partners of the victim (Tralee Women's Resource Centre 2007).
The effects and consequences of domestic violence are immense. Victims of domestic violence may feel isolated, depressed, suicidal, humiliated, worthless, lack confidence, degraded and in fear for their lives. By isolating the victim the abuser has full control. Many victims develop dependence to alcohol or drugs and due to a diminished self esteem may also develop eating disorders. As stated earlier children who grow up in homes where there is violence may grow up to be abusers or victims themselves. There is also the impact on a person's health. As well as physical injuries sustained during the violence there are other issues such as, unwanted pregnancies, irritable bowel syndrome, headaches and back aches which are ongoing problems women suffer from because of violence (Department of Health and Children & Women's Aid 2002). A study in the USA found that families which are affected by domestic abuse visit their GP eight times more often and A&E six times more often than other families. A survey carried out at St James' Accident and Emergency found women had injuries such as, broken bones, bruises, burns, broken teeth, lacerations and loss of consciousness (Women's Aid Model of Work).
The first legal remedy in Ireland was the Family Law (Maintenance of Spouses and Children) Act 1976. Prior to this victims of abuse had to depend on criminal law. This act was amended in 1981 to include protection orders. The legal remedy in Ireland at the moment is the Domestic Violence Act 1996 which came into operation in March of 96. This repealed the Family Law (Protection of Spouses and Children Act) 1981. This act deals with the civil and criminal aspects of domestic violence and protects all people in domestic relationships including cohabitees and their children, dependent members of the family and it also protects parents from their abusive adult children. In 2006 there were 200 barring orders and 86 interim barring orders granted against children (Citizens Information Centre). The Gardai can arrest and prosecute an abusive family member under this act. This act introduced safety orders and provisions for interim barring orders. Under section 9 of this act the court may make other orders they feel are necessary without having separate proceedings. Custody and access orders may be made under the Guardianship of Infants Act 1964, maintenance orders under the Family Law (Maintenance of Spouses and Children) Act 1976 and also orders under the Child Care Act 1991(Shannon 2003).
Under the Domestic Violence Act 1996 the following orders may be obtained through the courts:
This order protects the applicant and any dependent person in the family from intimidation and threats of violence. The abuser is not barred from the home but this order prevents them from committing or threatening to commit violence against the applicant. If the abuser does not live in the home then he/she can be ordered to stay away from the applicant's home. People eligible to apply for a safety order include, a spouse, an unmarried partner who has lived with the accused for at least 6 months out of the previous 12 months, a parent of an adult abusive child, relatives who live together, a person over 18 in a non contractual relationship or the Health Service Executive on behalf of an eligible applicant. The court must agree that there are reasonable grounds for believing that the welfare of the applicant is at risk. A safety order made by the District Court can be for up to 5 years and this can be extended, by the applicant, for a further 5 years or less (Nestor 2003).
The District Court can grant a Barring Order for up to 3 years and this can be extended for another three years if deemed necessary. Under this order the accused person must leave the family home and not threaten or use violence against the applicant or any dependant person. An order can be made by a spouse, a cohabitee who has lived with the accused for at least 6 out of 9 months, a parent of an adult child and under section 6 of the act the Health Services Executive can make an order for a person if they are too frightened or traumatised. Because of the constitutional right to private property in article 43 of the Constitution, a non-spousal applicant will have to prove that they have an equal or greater interest in the property than the abuser in order to get a Barring Order. The Gardai have increased powers of arrest, without warrants in some circumstances, under the Barring Order (Shannon 2003).
While an applicant is waiting for a decision on a Safety Order or Barring Order they may obtain a Protection Order if they fear for their or their children's safety. This order has the same effect as a Safety Order but it only last until the court makes a decision on the case. These orders can be granted ex-parte without the abusers knowledge and without giving them the opportunity to attend the hearing (Shannon 2003).
Interim Barring Order:
For an Interim Barring Order to be obtained there must be evidence of an immediate risk to the safety and welfare of the applicant and a Protection Order must be deemed insufficient. This order has the same effect as a Barring Order but only lasts until a decision is made on the case. This order can be granted ex-parte but this was declared unconstitutional.
‘In Keating v Crowley (2003) the supreme court held that the provisions of section 4 of the 1996 Act, which permitted a Court to grant an interim barring order ex-parte without a time limit being placed on the order, were unconstitutional' (Nestor 2003).
Following this decision the Domestic Violence Act 1996 was amended by the Domestic Violence (Amendment) Act 2002 to allow ex-parte orders but the rights of all parties must be taken into account. The applicant must provide a sworn statement under oath and in writing with information and evidence of the violence and the judge must be satisfied with this before the order is issued and this must be done within a certain time limit, as the order will lapse after 8 days (Nestor 2003).
Offences committed during domestic violence are investigated by the Gardai and prosecuted through the court under different legislation. One of these is the Non-Fatal Offences against the Person Act 1997 which deals with assault causing harm or serious harm. It also deals with threats to kill, harassment and stalking. Criminal Damage Act 1991 is also used if items belonging to the victim have been damaged. Criminal Law (Rape) act 1981 and Criminal Law (Rape) (Amendment) Act 1990 are also used in cases of sexual abuse and marital rape. The first and only conviction of a husband for raping his wife was in 2006 when Judge Paul Carney handed down a 6 year prison sentence to a man from Sligo. This followed a retrial in 2004 because the first conviction in 2001 was over turned by appeal due to a technical issue (Rape Crisis Network Ireland 2006). The marital bar was only lifted in Ireland in 1990 following the amendment to the Criminal Law (Rape) Act 1981 under section 5(1). Before this it was not possible to find a husband guilty of raping his wife (Watson & Parsons 2005).
If a person breaks an order they are guilty of an offence which is punishable by a fine or a prison term. The Gardai can arrest an alleged abuser without a warrant if they believe the person has broken the order. These are set down in section 17 of the act. An order takes effect as soon as the respondent is notified, this can be done verbally with a copy of the order or the judge may direct the Gardai to serve the order to the respondent (Citizens Information Centre).
While many victims are covered by legislation in Ireland there are still 28% of women who call help lines who are not eligible to apply for orders through the courts. These are women who have been or are being abused by former or current partners but they are not married to them and didn't live with them therefore, they don't meet the cohabitation requirements under the law. Many women in abusive dating relationships and who do not meet the cohabitation requirements are living in fear in the country today (Women's Aid 2009). A couple who have a child but are not living together or married are also outside the safety net of legislation.
Research shows that, in many cases, when women leave an abusive relationship or try to get help the abuse can get worse. Even if there is a safety or protection order in place the woman is still living with the abuser. Women also have the worry of being homeless or losing access to their children if they do try to get help. Victims of domestic violence may also have very low self esteem and lack the confidence to ask for help. Support for the victim throughout the legal process is essential. The victim needs to know they will be protected if they do decide to seek help. In the Women's Aid Annual Statistics 2008 stated that 10% of callers (800) women had experienced abuse from a former partner that they were not married to (Women's Aid 2008). Despite improvements in the legislation in Ireland, a relatively small amount of victims avail of the legal systems services. A very low number of men get prison sentences for domestic violence offences and women feel intimidated by the court system (Fagan 2008). A study in 1999 found that out of 427 reports of domestic violence, 42% were arrested, 23% were charged, 14% were found guilty and only 3% received a prison sentence. In another study in 1995, 84% of victims said they didn't report the abuse because they were afraid, 64% because it would do no good and 46% didn't think the gardai would take the report seriously (Women's Aid Model of Work).
There have been many improvements in legislation and policy in Ireland over the past decades in relation to the protection of victims of domestic violence but more needs to be done to protect the victim when they do decide to seek help. The gaps in the legislation in relation to cohabitation requirements should be looked at in order to protect any person who may be experiencing domestic violence in their intimate relationships. More funding is needed to make sure the refuges are kept open and front line services such as, help lines are always available for people in need. Mandatory programmes for abusers might in some cases be the answer to re-offending. A programme set up by the Domestic Violence Unit in St Louis in the USA found that ‘A high percentage of offenders were able to succeed in the programme due to their ability to change their thinking patterns and undergo behavioural changes' (Duffy et al 2003). MOVE Ireland is a voluntary organisation which provides programmes free of charge which help men take responsibility for their violent behaviour. Some men are ordered by the court to attend and other volunteer to attend (MOVE Ireland).