The ratification of the Istanbul Convention is a welcome move, but further action is needed to ensure effective protection for domestic abuse victims, writes Dr Susan Leahy.
Ireland’s recent ratification of the Istanbul Convention marks a significant commitment on the part of the Government to protect women in this jurisdiction from abuse within relationships. The convention (formally entitled the Council of Europe Convention on preventing and combating violence against women and domestic violence) requires signatory States to commit to the provision of effective interventions and safeguards to both prevent and respond to domestic abuse.
The recent reforms to domestic abuse legislation enacted with the commencement of the Domestic Violence Act 2018 on January 2 this year represent a central component of the Government’s preparation for ratification of the directive.
However, while ratification of the convention and the legislative developments which preceded and allowed for it are important formal steps in ensuring an effective response to domestic abuse, much more is required if domestic abuse victims are to be effectively and appropriately protected.
A key example of this is the new offence of coercive control which was introduced in the 2018 act. This offence is committed where an individual knowingly and persistently engages in behaviour that: (a) is controlling or coercive; (b) has a serious effect on a relevant person (ie. as spouse, civil partner, or someone the individual is in an ‘intimate relationship’ with), and; (c) a reasonable person would consider likely to have a serious effect on a relevant person.
A person’s behaviour has a serious effect on another person if that behaviour puts someone in fear that violence will be used against them or causes the person serious alarm or distress that has a substantial adverse impact on his/her usual day-to-day activities.
While the introduction of this offence meets the formal requirement in Article 33 of the convention that psychological violence is criminalised, its creation is not enough by itself to achieve this in practice.
This is evident from the English experience of implementing a similar offence which has demonstrated that significant investment in resources and police training is necessary if coercive control is to be detected and successfully prosecuted. When one considers the difference between investigating and proving psychological as opposed to physical abuse, the challenges encountered are unsurprising.
A physical assault is instantly recognisable and is relatively easily proved by medical reports and/or photographic evidence.
Psychological abuse and controlling behaviour are much more difficult to detect, especially to an untrained eye. Coercive and controlling behaviour such as constant phone calls, limiting access to financial resources, or subtle cues such as words or gestures which are used to control and intimidate can only be truly understood (and thus proven to constitute the coercive control) when one fully understands the complexities of an abusive relationship.
Thus, greater investment of time and resources is required both to understand, and prove in court, how the context of a particular relationship is putting the victim in fear, thereby constituting the offence of coercive control. Without effective training and resourcing of gardaí to effectively investigate this offence, its inclusion on the statute books is not enough to protect Irish women from this form of abuse.
A further limitation in the Domestic Violence Act 2018 is the inadequate emergency protection which is available for victims. The available civil orders which victims can apply for to protect themselves (e.g. barring orders) must be sought via a court application.
The 2018 act empowers the gardaí to apply for an out-of-hours court hearing for a victim who needs protection at a time when the district court is not sitting. This is a welcome development but the legislation could have gone much further. For example, English law provides the police with the power to issue Domestic Violence Protection Notices, which allow the police to bar a perpetrator of domestic abuse from the home for a period of 48 hours.
This sort of emergency measure arms police with an important means of diffusing a violent situation, allowing the victim some breathing space to seek support to protect herself (e.g. making plans to leave or seek a court order, perhaps with the aid of an out-of-hours sitting). The inclusion of an order like this in the Irish legislative regime would offer more robust protection than the inclusion of the facility for an out-of-hours hearing by itself.
Finally, it must be remembered that although the State has made a firm commitment to respond effectively to domestic abuse, victims still continue to bear the primary responsibility for protecting themselves. While the State will prosecute abuse within relationships, victims must still make separate applications within the civil court system for orders such as barring orders which will protect them from their abusers.
In light of the trauma which such victims have endured, participation with two separate systems and the various hearings and exposure to the perpetrator this will entail may prove too much. Since a victim’s immediate concern will be protection, she may choose to engage with just the civil system to obtain this and not to face the separate ordeal of a criminal prosecution as well.
Our current twin-track system for responding to domestic abuse may thus be resulting in victims having to choose between securing protection and seeking justice in the form of prosecution of their abuser. Thus, to fully achieve the goals of the Istanbul Convention, some means of streamlining both systems must be considered.
The symbolism of ratification of the Istanbul Convention was undoubtedly an excellent way for the Government to highlight its commitment to protecting women from domestic abuse.
However, it is what happens behind the scenes in terms of resource allocation and effective training of key stakeholders which will determine whether real change will be experienced by domestic abuse victims in our jurisdiction. It must be remembered that key to meeting the convention’s objectives is effective implementation and monitoring of the operation of the law in this area. Ratification, though meaningful, is only a first step on this journey.
Susan Leahy, BCL LLM PhD, lecturer course director: BA (Criminal Justice), co-director: Centre for Crime, Justice, and Victim Studies