Domestic violence should be criminalized
INTRODUCTION AND DEFINITION OF DOMESTIC VIOLENCE
Domestic violence has many alternative names, the most widely-known are family violence, battering, domestic abuse, domestic assault, spouse abuse, woman abuse, et cetera. It is even referred as 'terrorism in the home' by the Secretary of Health and Human Services of the USA, Donna Shalala in a speech.
Domestic Violence is a global social problem that crosses ethnic, racial, age, national origin, religious and socioeconomic lines. In short, it affects families all over the world. There are research figures indicating that same-sex battering occurs at approximately the same rate as opposite-sex battering. In order to go further, it is necessary for us first to have a thorough understanding of what domestic violence exactly means. A definition commonly accepted by legal professionals is
'the emotional, physical, psychological, or sexual abuse perpetrated against a
person by that person's spouse, former spouse, partner, former partner or by
the other parent of a minor child. Abuse include threats, harm, injury,
harassment, control, terrorism or damage to living beings or property.'
A simpler but at the same time get-to-the-point definition is provided by New York State Office for the Prevention of Domestic Violence - a pattern of coercive tactics which can include physical, psychological, sexual, economic abuse, perpetrated by one person against an adult intimate partner, with the goal of establishing and maintaining power and control over the victim. Figures showing that the vast majority (91-95%) of victims of partner violence are women who are abused by their male partners , therefore, domestic violence is defined as the violence used by men towards women with whom they have an intimate relationship in the rest of the essay. In fact, men can also be victims of domestic violence but very often, they are too ashamed to tell others about their problem as they think they might 'lose face' by doing so.
In the following, I will firstly discuss the arguments for and against the proposition that domestic violence should be criminalized and then I will give my own comments on it.
WHY DOMESTIC VIOLENCE SHOULD BE CRIMINALIZED
Domestic violence has its roots in a long history of social and legal traditions that have permitted and supported men?s abuse of women and children in family relationships. These legal and social sanctions, rooted in sexism and misogyny, have allowed family violence to remain a 'private matter', immune from public scrutiny and intervention, for centuries. Some American legal scholars claimed that an ancient 'spousal privilege' founded in the centuries-old English common law allowed them to use 'moderate correction' to maintain domestic tranquility. Most believe families are a safe place where the home is filled with love. We like to believe that families are the foundations on which our society is built. However, behind closed doors, many families are torn apart by violence. The privacy that protects the family can also hide the pain, suffering and terror of violence against men, women and children.
There are many sources showing that domestic violence has become very serious and affect many people. The American Medical Association estimates that almost 4 million women in the USA are victims of severe assaults by boyfriends and husbands each year. Another source shows that a woman is beaten every 15 seconds (Washington DC Office of Justice Program, US Dept. of Justice. Oct, 1983). The most astonishing is from a recent newspaper cutting - there are about 14,000 women killed by their husbands in Russia each year, which surpasses the number of Russians killed during the Afghanistan war that lasted for ten year. Domestic Violence is also a learned response to anger passed down from generation to generation and thus it affects children in many ways. Children may be injured during the violence, and they may also face the dual threats of witnessing their parents being abused physically.
However as time passes, women were afforded more and more rights by society. Domestic violence was made an issue of the women's movement in the early 70s. by the Feminists who also advocated laws to protect victims of violence and make batterers accountable for their behaviour. Nowadays, the perpetrator of domestic violence can be prosecuted. (R v Kowalski ) In many jurisdictions, both civil and criminal law remedies are available for the victims. Let us first have a look at Hong Kong's current situation.
HONG KONG'S SITUATION
The main provisions concerned about domestic violence are provided in Domestic Violence Ordinance (Cap 189) (DVO). The remedies provided are mainly civil and protective in nature. According to s.3(1) of DVO, the District Court and in certain circumstances, the Court of First Instance may grant an injunction order to a party of a married couple if it is satisfied that the applicant or a child living with the applicant has been molested by the other party to the marriage. A criminal remedy is provided in s.5(1) of DVO, which states that the Court of First Instance or the District Court, as the case may be, if it is satisfied that the other party has caused actual bodily harm to the applicant or, as the case may be, to the child concerned, may, subject to section 6, at the same time as it grants the injunction or at any time during the period for which the injunction is granted, attach to the injunction a power of arrest in the prescribed form.
Therefore in Hong Kong, a battered spouse can only apply for an injunction order which is a civil proceeding which would only become criminal after a violation.
Though granting injunction or restraining orders intends to separate the two parties and prevent the victims from being battered, it may sometimes increases the victims' risk of being severely injured or even killed. We have to know that the restraining orders actually provide no guarantees of safety. On the other hand, according to a 1994 pamphlet put out by Battered Women Fighting Back Inc. in Boston, women who leave their batterers are at a 75% greater risk of being killed by their batterer than those who stay. In addition, a court order is only a piece of paper, many abusers who feels 'above the law' would just ignore the order and regain control to their wives by using even more violence. As a result, by getting a restraining order does not mean the victim would be physically protected but it may even trigger more violent episodes. We can see that civil remedies are absolutely insufficient to protect the victims and deter the batterers from commiting again, therefore, that explains why domestic violence should be criminalized.
May be we can try to look from the other perspective, there is evidence showing that police's arrest does have a deterring effect on the batterers. The Minneapolis Domestic Violence Experiment conducted by Lawrence Sherman and R.A. Berk in 1984 employed an experimental model to examine the deterring effects of arrest to wife battering. In the experiment, the batterers were assigned to one of the three following treatments randomly : arresting the batterer, ordering one of the parties to leave the house, and advising the couple. The result is that the prevalence of subsequent offending was reduced by nearly 50% when the batterer was arrested. Among the group of batterers being arrested, 43% of them were released from custody within one day and there are only 6% in those cases that the batterers have new quarrels with the victims. Therefore we can see that men who had been arrested were less likely to assault their wives than men who were separated from their wives for a brief period of time or men who received counselling. It was a critical event in changing public and scholarly perceptions of domestic violence from a 'family problem' amenable to mediation and other informal, non-legal interventions to a law violation requiring a formal criminal justice sanction.
WHY CRIMINALIZATION IS NOT THE BEST WAY TO SOLVE THE PROBLEM
The criminal law usually provides an unsatisfactory remedy for domestic violence.
ery often, police were leaving the scene of a domestic dispute without intervening, and therefore leaving the battered spouse in a dangerous and sometimes, even fatal situation. The battered spouse, usually women, always do not want their husbands to be arrested, prosecuted and thus thrown into jail. The reason is that different from other forms of violence, there are strong emotional ties between the two parties who may live together and love each other. And in case the husbands are imprisoned, the wives, who are usually financially dependant on their husbands, would face a severely diminished standard of living or even an economic life at or below the official threshold of poverty. Also they are unwilling to cooperate with the police because of feelings of disloyalty or because prosecution and possible conviction will ruin any chance of reconciliation. The victims are often less concerned with punishment and deterrence imposed by the criminal law. Instead they seek to use the law for other goals, for instance, to get counseling help for their husbands, to guarantee their own safety, to survive economically, to protect their children, et cetera. They may also see the threat of prosecution as a means of terminating the relationship and escaping the violence.
Also, the victims are worried about their reputation as the incident would probably be reported on the newspapers if the case goes to the court. The family pressure against disclosure was brought to bear on the victim. Victims in some middle-class families are even more reluctant to call the police in order to preserve their appearances and they doubt that legal action would have negative impact on the batterers' job or community standing.
There are suggestions that the criminal justice system in prosecution may not be effective. Studies have shown that even when arrests are made, very few domestic violence cases actually make it through prosecution and the court process and result in conviction of the batterers. According to a survey carried out by Lenore Walker, one in seven of the wife assaults is reported to the police and less than one percent of the men for whom prima facie evidence of wife assault exists is convicted in court. Ann Jones identified the problem and according to her, the three branches of the criminal justice system, that is the Police, the prosecutors and the judges, evade their duties by blaming another branch. Police say there's no point in making arrests when prosecutors won?t prosecute, and prosecutors.....say they can't prosecute when police don't arrest and judges won't sentence anyway. Judges say that women waste the court's time
Finally, the implementation of policies to control domestic violence competes with other crime and violence problems, for instance, child abuse cases, gang violence et cetera. for limited resources. Also, domestic violence cases compete with other violence cases for immediate attention by the police. Unfortunately, domestic violence cases, especially the non-injury or low-injury ones, do not always receive a higher priority than other crimes. The same happened to the prosecutors, prosecuting domestic violence cases is not a pathway to recognition and promotion even when resources are organized in a way that makes such prosecution possible. Also, domestic violence cases are also assigned low priority when heard in the court when compared with other violence involving strangers.
COMMENTS
After analyzing the arguments both for and against criminalization of domestic violence, we can see that criminal law remedies is not the best and the most effective way to solve the problem. In fact, mandatory arrest is now being used in some jurisdictions and according to the 1992 report by University of Maryland criminologist Lawrence Sherman, the deterrent effect of mandatory arrest is much more conspicuous. A group of batterers were mandatorily arrested while another group were left without making an arrest. It was found that only 2% of the batterers? victims of the former group were immediately assaulted again while 7% for the latter group. Therefore, it seems that mandatory arrest is more effective.
Nevertheless, in my opinion, whether the victim wishes to pursue the case is of fundamental importance and the police should honour the victim's wishes if she does not want her husband or partner to be prosecuted, provided that she is not being pressured or coerced, and the case is a less serious one. In addition, the husbands and wives should be given opportunities to reconciliate as we must keep in our mind that harmony of families means the stability of the whole society.
Here, I would like to propose a suggestion that can both increase the use of the criminal law in domestic violence as well as satisfy the victim's true needs. The Government may set up a Criminal Injuries Compensation especially for domestic violence victims and the family members who suffer domestic violence may claim compensation under the scheme, provided that the batterer has been prosecuted and he would not be benefited from the compensation. It can surely increase the number of prosecutions of domestic violence cases, and at the same time, the women do not have to worry about their financial condition after their husbands are prosecuted and sent to jail.
The arguments over whether domestic violence should be criminalized or whether the use of criminal law is the most effective to solve the problem are still under debate. Full criminalization is absolutely not desirable. Civil and other remedies for example, treatment programs should be available for the victims as alternatives. But in order for the criminal law remedies to work more effectively, the unwillingness of the police and prosecutors, backed by the judiciary should be changed when handling domestic violence cases.
Total : 2527 words (excluding footnotes)
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