Domestic violence and civil harassment: some issues which arise when the case comes to court

AuthorRosemary Horgan
PositionHead of Family Law Department, Ronan Daly Jermyn Solicitors, Cork
In this short paper I would like to concentrate on three aspects of
the domestic violence debate. Firstly what is domestic violence and
although the law is gender neutral, is it a gender issue? Secondly how
the new remedy of ‘interim barring orders’ is operating in practice,
and finally whether access to children by a barred spouse should be
resolved in isolation to the domestic violence issue - and how and
whether children themselves should be involved in the Court
decision affecting their interests in the light of recent cases where the
European Court of Human Rights held that Germany had violated
the Convention.
The term‘domestic violence’ has a verywide currency. It covers a
broad spectrum of behaviour from pushing and shoving to
‘controlling battering’. It also covers cases wherethereis no physical
assault or battery but where the term ‘violence’ has been given a
wider meaning and covers a variety of insidious behaviour such as
psychological intimidation, molestation or harassment, mental
cruelty, and sexual abuse. ‘Domestic Violence’ is not defined by the
Domestic Violence Act, 1996. The Report of the Task Force on
Violence against Women published in April 1997 endorses the
interpretation used in The Garda Síochána Policy Statement on
domestic violence. The Garda Síochána Policy Statement defines
domestic violence as ‘the physical, sexual, emotional or mental abuse
of one partner by another partner in a relationship which may or
may not be one based on marriage or cohabitation and includes
abuse by any family member against whom a safety order or a
144 [4:1Judicial Studies Institute Journal
*Head of Family Law Department, Ronan Daly Jermyn Solicitors, Cork.
barring order may be obtained by another family member’.
It has long been argued that domestic violence represents an
exercise of ‘power and control’. The peculiar dynamic of domestic
violence, it has been argued, can be understood only when one
considers the traditional roles of men and women and in particular
the structural disparity in terms of ‘power’ and ‘control’ at a material
and symbolic level that characterises gender roles within our society.
At the end of the Seventies, men in the US who wished to break free
of the cycle first developed programmes for male abusers. Different
approaches and modalities of interventions were developed,
however, the one which had most influence in Europe was the
Duluth (Minneapolis) model.1
Domestic violence is a problem that crosses all socio-economic
lines and is a phenomenon in many cultures and societies. The
psychological dynamics are rooted within the need of the perpetrator
to exercise power and control over the victim. The tactics may
include both physical and emotional or verbal abuse. Domestic
violence almost always escalates in both frequency and severity over
time, unless the victim and the abuser receive specialist help. The
perpetrator frequently minimises his or her behaviour and seeks to
discredit or blame the abused partner. Frequently a cycle of violent
and abusive behaviour is punctuated by efforts on the part of the
victim to leave and escape the problem, only to be encouraged by the
abusive partner, children and society to return to the relationship.
Writers suggest a three-stage cycle of violence leading to “symbiotic
bonding” of victim and perpetrator.2The first phase is the tension
2004] Domestic Violence and Civil Harassment 145
1The Duluth, Minnesota Domestic Abuse Intervention Project. It is described in detail in
Pence, E., and Paymer,M., Education Groups For Men Who Batter: The Duluth Model.The
"Power and Control Wheel". In Europe see (a) “The Daphne Initiative (1997-1999)” which
represented an extraordinary commitment by the European Commission to prevent and
protect women and children against violence and was created to address growing concerns
about violence against children, young people and women throughout Europe. Therehave
been four evaluation reports on the 2000 project. The Daphne Programme is now linked to
the to the European Charter of Fundamental Rights, the Framework Strategy on Gender
Equality,the UN Convention on the Rights of the Child and the UN trafficking protocol. See
DAPHNE - External Evaluators' Report on the Daphne - Programme (year 2000) and (b)
Council of Europe publications including Reid S “Preventing violence against women- a
European perspective” Council of Europe Publishing, November 2003.
2Carden, A.D., “Wife abuse and the wife abuser: Review and recommendations” (1994) 22
Counselling Psychologist,539; Walker, L.E., “The Battered Woman” (Harper and Row, New
York, 1979).

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