The Domestic Violence Act May 2018

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Tracing the genesis of the bill and the steps in how it came to be enacted is worthwhile because it shows just how appalling is the lack of representation for men today and the very serious consequences which inevitably follow from this in the legislation enacted.
In fact, one cannot escape the conclusion that there is complete indifference to this lack of representation of men in the consultation process, and some politicians are quite happy to see objective viewpoints deliberately excluded from it.

In the spring of 2013 the Justice committee announced that a new bill on Domestic and Sexual Violence was being prepared and sent out a call for submissions from interested parties. Around forty submissions were received, some from statutory groups, some from individuals and some from organisations of whom fourteen were women’s groups such as Women’s Aid, Safe Ireland, NWC and others. While there were submissions from three men’s groups it is true to say that there was none with a brief to give an overall male perspective, present evidence on how men are victims of DV, challenge the current narrative and give figures for the appalling lack of services for men.

Hearings took place before the committee on Feb 19 and Feb 26 2014 at which 24 groups or individuals were called. Nobody presented any evidence on the rates of perpetration as between men and women, attempted to give a balanced nonpartisan view of DV, instance the principal features of DV including many surprising recent findings or to show the extent to which men are also victims. An enormous amount of evidence which challenges the official narrative was thereby omitted.

Nobody presented any evidence on the rates of perpetration as between men and women, attempted to give a balanced nonpartisan view of DV

The whole emphasis was on female victims and male perpetrators and it was blithely assumed that DV is always a clear-cut black and white issue, a view utterly unfounded. The impact of the proceedings for this observer was one of total disbelief and a shocking example of groupthink.
The Committee issued its report in Oct 2014. It contained the following recommendations:
That the Government legislates for the necessary legal and constitutional changes to make domestic violence, in itself a crime. Furthermore, the Committee also recommends a wider definition of “domestic violence” and “domestic abuse”.
The Committee recommends that consideration be given to legislating for the enhanced criminalisation of psychological abuses such as stalking and harassment within a marital or domestic context.

The Committee submits that it should be a sufficient standard of proof to show on the balance of probabilities that the behaviour of the accused has caused the victim to feel intimidated and/or to anticipate physical harm.

The Committee recommends that consideration be given to the criminalisation of certain acts which may not necessarily involve physical harm but focus more on psychological and emotional harm to the victim.

The Committee calls upon the Minister to sign the Istanbul Convention, and ensure its immediate ratification and implementation once this decision is made.

There was no discussion of the Istanbul Convention, its merits or demerits, because all accepted or assumed it was above reproach.

There was no discussion of the Istanbul Convention, its merits or demerits, because all accepted or assumed it was above reproach

With all party support for the report, the Minister prepared The Heads of a Bill which appeared in July 2015.
The Minister brought the Bill before the Oireachtas in Feb 2017. The bill begins as follows:
An Act to consolidate the law on domestic violence; to provide for emergency barring orders in certain circumstances; to provide for evidence to be given through television link in certain proceedings; to provide for the right of an applicant to be accompanied in certain proceedings;

It was first put before the Seanad. Indeed, nearly all the debate on the bill took place there; there was almost no debate in the Dail when it was brought there after it passed through the Seanad in late Nov 2017. This is very noteworthy, and one may ask why. The bill appears to have figured in Dail proceedings on just one occasion, that was April 25, 2018 when it passed all stages in a near empty house.

It was quite obvious during the Seanad debates that every intervention was in one direction.
There was a very determined and organised group of senators whose aim was to greatly widen the reach of the bill. Nobody challenged any clause of the bill or even questioned any part of the wording. The Minister of State David Stanton, who steered the bill, caved in on at least two occasions to pressure. The first was in relation to pressure to create a new offence of Coercive Control. In July 2017 showing reluctance to do this he said: “Most instances of domestic violence take place in private. The difficulties of obtaining evidence of non-physical behaviour, and the harm it causes, to satisfy a criminal standard of proof, that it is beyond reasonable doubt, in order to secure a conviction, are obvious.”
In Nov 2017 he changed his mind. There is now a criminal offence of Coercive Control. It carries a possible sentence of up to 12 months on summary conviction raised to up to 5 years on conviction on indictment. It applies not only to spouses/partners of the applicant but also to anyone who is or was in “an intimate relationship” with that applicant.

Note again the wording in the last line: is or was Not lived with. This gives it wider applicability.

A second major innovation of the bill was the introduction of yet another order, an Emergency Barring Order. The reason for this was to prepare the way for the ratification of the Istanbul Convention as the order is based on Article 52 of the Convention.
It applies where the applicant
“is not the spouse or civil partner of the respondent and is not related to the respondent within a prohibited degree of relationship but lived with the respondent in an intimate
relationship prior to the application for the emergency barring order”.

The basis for the order is that there are reasonable grounds for believing that there is an immediate risk of significant harm to the applicant.
It seems that “harm” here refers to physical, emotional or psychological harm.

This order is similar to the Interim Barring Order but with the crucial exception that the applicant in this case need have no interest whatsoever in the property. Yet they can have the owner barred for up to 8 working days if the order is granted.
The order can be applied for ex parte in which case the application shall be grounded on an affidavit or information sworn by the applicant. The order will take immediate effect, upon the uncorroborated statement alone of the person making the claim.

It should be borne in mind in considering this legislation that it is very possible that the accused person may be innocent.

It is not difficult to imagine a situation where a person may be forcefully barred from their fully-titled property upon the word alone of an individual who has no ownership or interest in the property whatsoever.
They may be so barred without resort to claim for damages.

There is the further matter of how this law is interpreted in practice. The court may be compelled to err on the side of caution as a matter of course, in the case of certain types of claim.
Could a climate of opinion be created whereby the accused who has been removed from their property, is, in the public mind deemed guilty before due process begins?

Could this lead further to an erosion of that fundamental principle of the law of being presumed innocent before one is proved guilty? To put it a little differently, could it set a precedent for future cases?

This bill repeals all previous legislation on DV such as the DV Act of 1996. Subtle changes of wording should be noted because they greatly widen the scope and reach of the bill in addition to major new additions.
Barring orders, Interim Barring Orders and Emergency Barring Orders now only require the applicant and respondent to “have lived in an intimate relationship”. The requirement in the Heads of the Bill 2015 was that they “have lived in an intimate and committed relationship”.
The understanding here was that the person making the claim had to be living with the alleged perpetrator for at least 6 months in the 9 months immediately before the application but the duration period has been dropped. The meaning of an intimate relationship is deliberately left vague. It is almost meaningless.

There has never been a review of these orders to determine their efficacy, or whether to relax their conditions

We have witnessed since 1976 successive orders being made and at each stage the order becomes more restrictive, more punitive. There has been a constant widening to the applicability and effect of barring orders since first inception in 1976. Thus, barring order durations were increased from 3 months in 1976 to 12 months in 1981 to 3 years in 1996 with provision for extension to a further three years.

Nowhere in this debate was the question raised as what is to happen in the case of false allegations or what penalties/compensation to prescribe in case of such. Again, the presumption is that all are legitimate.The alleged victim is permitted to have someone in the court with them, throughout the process.
This understanding is not extended to the accused, who ought to be presumed innocent until otherwise decided. One way to explain this is that there is a tacit presumption of guilt which is very dangerous.
There has never been a review of these orders to determine their efficacy, or whether to relax their conditions.
Such a review would be considered normal with other social legislation.

No undertaking as to damages in the event of a frivolous or vexatious application

That this is no minor matter can be gauged from the following quote from a paper written in 2004 by Rosemary Horgan, a judge of the High Court, in which she was commenting on the lack of fairness in the 1996 Act:
“Unfortunately, the appropriate infrastructure was not put in place to ensure fairness in the operation of the new regime. The District Court Rules did not require an affidavit grounding the application for ex parte relief and the form of ‘information’ in many instances contained very little detail of the grounds upon which the relief was sought and did not contain the normal requirement of a Circuit Court affidavit for such relief that the party seeking the relief give an undertaking as to damages in the event of a frivolous or vexatious application. Another significant deficit lay in the fact that the original rules of court did not contain a space for an automatic early return date and even when the rules were changed to allow for a return date the time limit for the return date was not sufficiently proximate to warrant the requirements of ‘due process’. Another concern was that there was an automatic power of arrest consequent on a complaint of ‘breach of interim barring order’.
She continues that this is also the view of a weighty body: The Report of the Law Reform Committee of the Law Society of Ireland published in May 1999, entitled “Domestic Violence the Case for Reform” highlighted these concerns and called for other reforms of the Domestic Violence Act, 1996 and amendment of the legislation.”