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

• Author: Rosemary Horgan
• Position: Head of Family Law Department, Ronan Daly Jermyn Solicitors, Cork
• Pages: 144-168

DOMESTIC VIOLENCE AND CIVIL HARASSMENT:

SOME ISSUES WHICH ARISE WHEN THE CASE

COMES TO COURT

ROSEMARY HORGAN*

I. INTRODUCTION

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.

II. WHAT IS DOMESTIC VIOLENCE?

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

III. THE CYCLE OF POWER AND CONTROL

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

http://europa.eu.int/comm/justice_home/funding/daphne/documents/report/ex_post_2000_rep

ort_en.pdf

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).