Domestic Violence

What is it

Sometimes called ‘intimate partner violence’ (IPV)

The Report of the Task Force on Violence against Women (April 1997) 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 barring order may be obtained by another family member.”

Case study X v Y 2020

X v Y [2020] IEHC 525 involved an unsuccessful appeal to the High Court against the granting of an interim barring order by the Circuit Court, following a pattern of threats, intimidation, and abusive behaviour.

Ms X and Mr Y, were married, and had two children together. Ms X had an additional child from a previous relationship.   

Parties had continued to live in the same house – atmosphere “decidedly unpleasant” and “toxic”. 

Pattern of bullying and aggressive behaviour towards her, to the point where “she was in fear for her safety and that of her children”. 

Mr Y uncooperative, intimidated, shouted at, threatened, and verbally abusive towards Ms X.  Watched at, stared. Followed her around the house in a menacing manner. Scheduled holidays to the same place as her.

Constitutional factors

§  Right to life

§  Right to protection of the person (includes mental health)

§  Right to bodily integrity

§  Rights of the child

Private matter

Often not reported due to fear of consequences such as §  Loss of financial security, emotional attachment to perpetrator, fear of further victimisation if reported

In the past, police often treated intra-family violence as a private matter, and considered that state intervention was not warranted

Sexual offenses

Criminal law rape act 1981

Criminal law rape amendment act 1990

Sexual assault

Aggravated sexual assault

Domestic violence act 2018

o   Came into force January 1, 2019

o   Updated the law in the area

o   Enhanced protections for victims

o   Extended availability of safety order to non-cohabiting intimate partners

o   New offence of coercive control

o   New offence of forced marriage

o   Removed the ability to obtain a court exemption from the minimum age requirement for marriage; minimum age for marriage is now 18 in all cases

Orders available

Safety order

Barring order

Interim barring order

Emergency barring order

Protection order

Safety order - section 6

A safety order is an order of the court which prohibits the violent person (the respondent) from committing further violence or threats of violence.

Current and former spouse or CP or intimate partner or parent of perpetrator may apply

Court must be of opinion that there are reasonable grounds for believing that the safety or welfare of the applicant or a dependent person so requires

Welfare includes physical and psychological welfare

Effect

• Court may order respondent to not threaten violence

• Not to watch, follow or communicate with spouse

• Lasts for 5 years unless shorter period is designated

Barring order - section 7 - excludes from home

A barring order requires the violent person to leave the home and prohibits the person from entering the home

Current and former spouse or CP or intimate partner may apply

Court must be of the opinion that there are reasonable grounds for believing that the safety or welfare of the applicant or a dependent person so requires. (O’B v O’B)

Effect:

• directs respondent to leave the place and prohibits from re entering

• Court may also prohibit from using violence being in the vicinity of or communicating with person

• Lasts for 3 years, or shorter period if stated

Restrictions

• if perpetrator has legal or beneficial interest in the home, barring order will only granted where the applicant has at least an equal legal interest in the home

• Cohabitant or Parent of perpetrator cannot apply

Interim barring order - section 8 - excludes from home temporarily

Can be sought by an applicant for a Barring Order. Applies pending determination of application for barring order

There must be reasonable grounds for believing that there is an immediate risk of significant harm to the applicant or dependent person;

Protection order would not be sufficient to protect applicant or dependent person

Can be sought without giving notice to the respondent (ex parte) - DK v Crowley (2003) – has to be a time limit to such orders when sought ex parte (without notice to the other side) – now 8 working days

Effect

• must (if living there) leave the place where applicant or dependent person resides and not enter that place until further order of the court

Emergency barring order - section 9 (new in 2019) - excludes from home temporarily

Emergency Barring Order – has the same effect as an IBO but applies specifically where a cohabitant or parent does not have an equal or greater interest in the relevant property compared with the perpetrator and therefore is not entitled to seek a barring order

There must be reasonable grounds for believing there is an immediate risk of significant harm if order is not made immediately

Lasts up to 8 working days

Once it expires, you have to wait a month before applying for a new order

Protection order - section 10 - prohibits further acts of violence pending an application for a safety or barring order being determined

If you apply for a safety or barring order, pending the decision on that application, you can seek a protection order

Court may order respondent:

§  Not to threaten to use violence against, molest or put in fear the applicant or dependent person

§  If not resident with applicant or dependent person, not to watch or beset the place where applicant or dependent person reside(s) and

§  Not to follow or communicate (including by electronic means) with the applicant or the dependent person.

Jurisdiction: can be sought in the District Court (usual venue) or Circuit Court (High Court in certain circumstances.

Factors court must consider when granting order

1. History of violence

2. Criminal convictions

3. Increase of violence

4. Exposure of applicant to violence

5. Previous order under DV act against respondent

6. History of animal cruelty

7. Destruction or damage caused by respondent

8. Action of the respondent which puts fear in applicant for their own safety

9. Recent separation between applicant and respondent

10. Substance abuse

11. Access to weapons

12. Age and state of health of applicant (Whether applicant is pregnant)

Powers of CFA (Tulsa)

CFA may apply on behalf of victim or dependent person

·      If CFA is aware of alleged incident(s) that put in doubt safety or welfare of persons

·      If CFA has reasonable cause to believe that person has been subjected to molestation, violence or threatened violence or otherwise put in fear

·      If CFA has reasonable grounds for believing person may be deterred or prevented from seeking court protection for themselves and

·      CFA has considered the wishes of affected person

·      May also seek an order on behalf of a dependent person where there is reasonable cause to believe that the person has been assaulted, ill-treated, sexually abused or seriously neglected or his or her health, development or welfare is being or is likely to be avoidably impaired or seriously neglected

Court proceedings

§  Cases heard otherwise than in public (media and researchers can access, but subject to strict privacy requirements) (s.23)

§  Strict restrictions on anonymity of participants

§  Protections against direct, in-person cross-examination by applicant or respondent (s.16)

§  Court must give reasons for its decisions (s.17)

§  Gardaí can arrange for special sittings of the District Court, out of hours (s.24)

§  Evidence can be given through television link (s.25)

§  Right to be accompanied (s.26)

§  Views of child may be sought (s.27)

Once orders are made

Orders sent to Gardaí for local area (s.19)

Orders may be discharged if risk no longer exists – safety or welfare no longer requires order to be in place (s.21)

Court can recommend engagement with various programmes

·      Programmes for perpetrators of DV

·      Addiction services

·      Counselling or psychotherapy services

·      Financial Planning services

Penalties for the breach of an order

Although these orders are civil orders, it is an offence to breach a DV order (s.33)

Gardai may arrest without warrant a person suspected of breach of an order

Fine of up to €4,000 or prison up to 12 months or both for breach of an order

Prohibitions on publication or broadcast of information that is likely to identify the accused or the applicant  - penalties are quite high

New provisions in the 2018 act

Offence of forced marriage – s.38 of the 2018 Act

Coercive control – s.39 of the 2018 Act

·      Knowingly and persistently engage in behaviour that is controlling or coercive, has a serious effect on a relevant person (spouse, civil partner or intimate partner) and a reasonable person would consider likely to have a serious effect on a relevant person

·      Has a serious effect if behaviour causes the person to fear violence will be used against him or causes serious alarm or distress that has a substantial adverse impact on their usual day to day activities

Conviction for coercive control

§  First conviction for Coercive Control in Ireland – KD, February 2020, jailed for 21 months (2.5 years but with last 9 months suspended)

§  Also convicted of harassment and making threats to damage property.

§  “Toxic relationship” – 5757 telephone calls to Ms CC in space of four months. Forced her to take her phone everywhere so he knew where she was. Burned clothes and broke hair straightener so she could no go out. Made threats. “I’ll kill you...I’ll cut your throat out. I’ll get you. Mark my words, I’ll get you tomorrow night.” Some physical violence.