IN RECENT WEEKS, it has been reported that in several cases before different courts, men responsible for assaults of women were offered the opportunity to be spared a prison term or even a criminal conviction if they paid money to the victims.
Without commenting on the issues in any individual case, these reports do raise a question about how violence against women – or gender-based violence – is dealt with in the criminal law.
Of course, immensely positive legal changes for women that have occurred in Irish society in recent years – with the successful repeal of the Eighth Amendment in 2018, and greater legal recognition around gender-based violence generally.
The passage of new laws in 2017 and 2018 have introduced stronger protections for victims of domestic violence and sexual assault. All of this is very welcome.
Much improvement needed
Unfortunately, we know that rates of domestic violence have increased dramatically during the Covid-19 pandemic, despite the recent positive legal changes. Any changes have been hard-won, brought about largely because of the brave women who have spoken out about their experiences as victims and survivors; and the advocacy of others supporting them.
The work of NGOs like Women’s Aid and Safe Ireland has debunked many of the problematic myths around rape and domestic violence. We now have a better understanding of the terrible effects of such offences upon victims, and we know that the majority of perpetrators are known to their victims.
We also know about the enormous danger many women face within their own homes. In 2019, Women’s Aid revealed that 230 women had been killed, and 16 children had died alongside their mothers since Women’s Aid records began in 1996. Almost 9 in 10 women were killed by a man known to them (87%).
In spite of these grim realities, the seriousness, frequency and pervasiveness of the violence labelled ‘domestic’ is often played down or denied; it is all too often explained away by external factors such as alcoholism or unemployment, and appallingly sometimes portrayed as a reaction or response to provocation from the victim.
Even where victims are not directly blamed for provoking the violence, they are often regarded as complicit in it because they stay with their abusers.
Effects of abuse
Fortunately, research evidence has contradicted these problematic myths, showing that domestic violence is not a rare or isolated event within otherwise happy families.
It has been found, for example, that the apparently ‘passive partners’, who stay with their abuser and endure violence against themselves and their children, may have undergone serious personality changes as a result of the abuse.
The term ‘domestic violence’ has itself been criticised as amounting to a downplaying or trivialising of what may more accurately be described as ‘violence in intimate relationships’ and is often referred to as a form of ‘gender-based violence’.
But whatever the term used, this remains an issue fraught with difficulty in law; and a phenomenon which causes great human misery and suffering, particularly to women and children.
The research and the advocacy around domestic violence have generated greater understanding about the nature of gender-based violence more generally.
This new understanding has led to many positive recent law reforms, including the introduction of a new statutory definition of ‘consent’ to help in the prosecution of rape cases; and the creation of a new offence of ‘coercive control’ – in recognition that in many domestic violence cases, a pattern of intimidatory and controlling behaviour is evident, which may have a severe impact upon the confidence and quality of life of the person victimised.
Indeed, the reports of a high-profile conviction for coercive control in January will undoubtedly create greater awareness among victims that this sort of behaviour is now subject to criminal sanction.
Broader supports
Despite these very positive changes, a core problem with the criminal law is that it is generally designed to deal with isolated events – it can be difficult to apply in the context of an ongoing abusive relationship. Indeed, we know that a great deal of domestic violence goes unreported at all. And we also know that the law is only one part of the solution.
A whole package of other measures is necessary, such as the provision of shelters for victims and their children and adequate resources for support groups. However, we also need a fundamental change of emphasis – to move towards tackling the perpetrators and preventing the abuse, rather than constantly trying to mend the damage that abusers do.
As one contributor to an Oireachtas Justice Committee on domestic violence put it, ‘why is it the women and children who must flee their homes?’.
Given the right set of facts and a suitable litigant, I believe there is potential for legal action to be taken against the State for the failure to provide adequate protection against domestic violence to women and children – perhaps a case waiting to happen.
But such litigation alone will not be enough to achieve the fundamental change in social attitudes required to really tackle the awful problem of gender-based and domestic violence.
The reports about recent court cases show that, where judges, police or others are seen to downplay the seriousness of assaults against women through sentencing practice or criminal justice policies, this does not help in changing those social attitudes.
Ivana Bacik is a Labour senator for Dublin University.
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