Crimes against Women and Children Domestic Violence

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Crimes against Women and ChildrenDomestic
Violence

• Carol Anne Coolican
• Managing Solicitor
• Tralee Law Centre
• 1 Day Place
• Tralee
• Co. Kerry

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Prevalence of Domestic Violence

• The Parliamentary Assembly of the Council of
  Europe recognises that domestic violence is the
  major cause of death and disability of women
  between the ages of 16 and 44 years of age.
• Men are victims too
• Children are particularly vulnerable
• No socio-economic barriers

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European Court of Human Rights Opuz v Turkey

• the issue of domestic violence, which can take
  various forms from physical to psychological
  violence or verbal abuseis a general problem
  which concerns all member states and which does
  not always surface since it often takes place
  within personal relationships or closed circuits
  and it is not only women who are affectedmen may
  also be the victimschildren, too, are often the
  casualties of the phenomenon, whether directly or
  indirectly

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Discrimination

• Convention on the Elimination of All forms of
  Discrimination Against Women (CEDAW) - violence
  against women, including domestic violence is a
  form of discrimination against women
• Discrimination -any distinction, exclusion or
  restriction made on the basis of sex which has
  the effect or purpose of impairing or nullifying
  the recognition, enjoyment or exercise by women,
  irrespective of their marital status, on a basis
  of equality of men and women, of human rights and
  fundamental freedoms in the political, economic,
  social, cultural, civil or any other field

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What is Domestic Violence

• No definition in Domestic Violence Acts
• Physical abuse from bruises to broken bones
• Mental/Emotional/Psychological abuse constantly
  being undermined/worn down, name calling,
  discrediting, disempowering, isolating, blaming
• Sexual abuse rape, sexual assaults

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Courts Service Annual Report 2008

• Circuit Court - increase from 91 to 164 in
  domestic violence orders made
• District Court - 8 decrease in domestic violence
  applications (10,401 down from 11,383)
• Protection order applications -11
• Safety order applications -6
• Barring order applications -8
• Interim Barring Order applications -10

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Courts Service Annual Report 2008 District Court
applications

• Barring order applications 3096
• Barring order granted 1251
• Protection order applications 3354
• Protection orders granted 2955
• Safety order applications 3328
• Safety orders granted 1502
• Interim barring order applications 623
• Interim barring orders granted 445
• Multiple reasons likely for unsuccessful
  applications reconciliation, separation,
  undertakings, adjournments, appeals, or not
  granted

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Incidents described by victims

• He poured fuel on me and threatened to set fire
  to me in fact he set fire to the house
• He hit my head and bashed it off the tiles
• He threatened to jump into the river and bring
  the kids with him
• He drove at us at speed
• I have had more black eyes than hot dinners
• He soils the bed regularly when he has drink
  taken and then makes me clean up

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Incidents described by victims

• He blames me when there is no money for the
  bills he has spent it on drink
• He put sand in the petrol tank of my car
• He keeps leaving abusive messages and texts on
  my phone
• Daddy was at Nanas and he is crying. Mummy is
  crying shes on the floor. Shes hurt.
• He gave me 2 black eyes the day the baby was
  due
• He is abusive with or without drink but he is
  worse with the drink

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What perpetrators say

• F you. You are nothing but a f...ing c
• You are the one on medication
• You are nothing but a tramp and a slut
• You are the one with the problem
• You better ring X to come and collect you or I
  will kill you
• The world would be a better place without you
  anyway
• You are the one who needs counselling

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How victims feel

• My son and I are walking on eggshells
• I felt violated again when he raised my previous
  sexual abuse
• I lock myself into my bedroom so I can feel
  safe
• The children are terrified of him they have
  seen him take a knife to my throat
• I can handle the beatings but the emotional
  stuff wrecks my head
• I am terrified of him, because I know what he
  has done and what he is capable of doing
• He is so controlling I feel helpless

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Remedies available

• Domestic Violence Acts, 1996 - 2002
• Protection Order
• Safety Order
• Barring order
• Interim Barring Order
• Non-Fatal Offences Against the Person Act, 1997
• Injunctions

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Protection Order

• On application for safety or barring order
• Reasonable grounds re safety/welfare of applicant
  or any dependent the court may direct that the
  respondent
• shall not use or threaten to use violence
  against, molest or put in fear and shall not
  watch or beset residence of applicant or
  dependent person, if residing elsewhere
• Ex parte application
• Expires on hearing of application for
  safety/barring order

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Safety Order

• Reasonable grounds re safety/welfare of applicant
  or dependent the court may direct that the
  respondent
• shall not use or threaten to use violence
  against, molest or put in fear and shall not
  watch or beset residence of applicant or
  dependent person, if residing elsewhere
• Maximum 5 years in District Court

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Barring Order

• Directs respondent to leave residence and
  prohibits re-entry
• Prohibits the respondent from one or more
• using or threatening to use violence against
• molesting or putting in fear
• attending at or in the vicinity of, or watching
  or besetting a place where the applicant or any
  dependent person resides
• Maximum 3 years in District Court

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Interim Barring Order

• On application for safety or barring order if
  there are reasonable grounds to believe
• There is an immediate risk of significant harm to
  the applicant or any dependent person if the
  order is not made immediately, and a protection
  order would not be sufficient
• Direct respondent to leave residence and prohibit
  entry until further order
• Ex parte application
• Maximum 8 working days

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Who can apply for a Safety Order

• Spouse
• As husband/wife for 6 of 12 months immediately
  prior to the application
• Parent of someone of full age and not dependent
• Residing in relationship the basis of which is
  not primarily contractual
• Health Service Executive

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Who can apply for a Barring Order

• Spouse
• As husband/wife for 6 of 9 months immediately
  prior to the application where applicant has at
  least an equal interest in the residence
• Parent of person of full age who is not dependent
  - where applicant has at least an equal interest
  in the residence
• Health Service Executive

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Ancillary Orders

• The following orders may be made on an
  application for a safety/barring order
• Custody/access
• Maintenance
• Restriction on conduct leading to the loss of the
  family home
• Care/Supervision orders

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Non Fatal Offences Against the State Act, 1997

• Gardai may prosecute for offences of
• Assault
• Assault causing harm
• Causing serious harm
• Threats to kill or cause serious harm
• Syringe attacks
• Coercion
• Endangerment
• Child abduction

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Injunctions

• Circuit Court application costly, less frequent
  sittings, pleadings on both sides.
• Breach further court application
• Gardai cannot enforce an Injunction

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Court Process

• Forms address, service, date for hearing
• Court Hearing regular court/dedicated family
  law day court accompaniment legal aid.
• A day in the life of a rural District Court
• Effect of Order - on notice, copy to Gardai
• Enforcement Call the Gardai. Breach of the
  order is a criminal matter and he may be entitled
  to legal aid, you are not open court hearing
  penalties include fine and/or imprisonment
• Reconciliation- seek removal of order

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Why does she stay?

• Poor self esteem
• Mental health
• Dynamics between the couple
• Dependent
• Children

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Emerging issues

• Economic pressures
• Cultural aspects
• Child as interpreter
• In camera/on view
• Family reports
• Large case lists
• Civil Partnership Bill, 2009

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Opuz v Turkey 9th June 2009European Court of
Human Rights

• HO married AO 3 children
• History of serious assaults beatings, stabbings
• Mother-in-law had life threatening injuries
• Complaints made and withdrawn
• Prosecutions withdrawn
• Complaint that threats had intensified
  attempted vehicular homicide
• Divorce proceedings reinstituted
• Death of mother-in-law

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Opuz v Turkey - continued

• Defence provocation, mother-in-law induced wife
  to lead an immoral life, shot her for the sake of
  his honour and children
• Sentence life, mitigated
• Decision there was a violation of European
  Convention on Human Rights
• Art. 2 right to life -
• Art. 3 no one shall be subjected to torture
• Art. 14 no discrimination on any ground such as
  sex

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Opuz v Turkey - continued

• bearing in mind the seriousness of the
  crimesthe prosecuting authorities should have
  been able to pursue the proceedings as a matter
  of public interest, regardless of the victims
  withdrawal of complaints
• in domestic violence cases perpetrators rights
  cannot supersede victims human rights to life
  and to physical and mental integrity

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Opuz v Turkey continued

• Children and other vulnerable individuals, in
  particular, are entitled to State protection, in
  the form of effective deterrence, against such
  serious breaches of personal integrity
• The legislative framework should have enabled
  the prosecuting authorities to pursue the
  criminal investigations against H.O. despite the
  withdrawal of complaints by the applicant on the
  basis that the violence committed by H.O. was
  sufficiently serious to warrant prosecution and
  that there was a constant threat to the
  applicants physical integrity

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Consequences of Opuz v Turkey?

• Prosecutions where complaints withdrawn
• Rights of perpetrators v victims
• Entitlement to state protection

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Conclusion

• Look for advice
• Seek medical help
• Get support
• Think of the effect on the children
• Get out if in danger