Ivana Bacik (Independent)

I am pleased the House has been afforded an opportunity to have this debate on domestic violence as it has been sought by many of us for some time. I am delighted to welcome the Minister of State and pleased that she has been given the new portfolio of equality. As Senator Ó Brolcháin noted, it is welcome that domestic violence comes within her remit. I look forward to engaging with her, not alone on this issue but also on the issue of women's participation in politics. As members of the Joint Committee on Justice, Equality, Defence and Women's Rights, Senator McDonald and I recently produced a report on this issue on behalf of the Sub-Committee on Women's Participation in Politics. We are anxious to debate the report in the House and have some interaction on it with the Minister of State.

On the issue of domestic violence, I will cite the words of Professor Susan Edwards, one of the foremost writers on this topic in Britain. In her 1996 text, Sex and Gender in the Legal Process, Ms Edwards described the treatment of domestic violence in the law, the issue on which I propose to focus given that it is my area of expertise. According to Edwards, domestic violence until the 1970s was regarded as a rare phenomenon. This is as true of Ireland as it is of England and this view may even have persisted longer here. Criminal law, Edwards adds, was rarely if ever invoked to prosecute aggressors. A far wider range of remedies in law is now available but stereotypical attitudes and expectations of women and men persist and these inform the law and militate against the justice and protection victims receive, she continues. The law, while it makes claims to offer remedies and protection to victims, is replete with obstacles and difficulties for the applicant seeking safety and protection, she concludes. Much of what Edwards wrote about circumstances in Britain in 1996 is still true and is relevant in this country.

I am glad a more serious approach is being taken to domestic violence. The establishment of Cosc was a positive step, as was the publication of a national strategy this year, although much of the latter is framed in aspirational terms and, from a lawyer's perspective, does not set out a sufficient number of focused goals. Despite this, I welcome the goals set out in the strategy.

The Minister of State referred to the great work done by non-governmental organisations in highlighting the issue of domestic violence. I pay tribute, as other Senators have done, to Women's Aid, which has done much work in providing support to victims of violence, highlighting the relevant issues at policy level and making policy proposals. In that context, I refer to the Women's Aid submission on the Civil Partnership Bill which is before the Dáil. The submission raises concern about one aspect of the Bill which has not been highlighted to any great degree in the debate thus far, namely, the amendment it makes to domestic violence legislation. Having worked with Women's Aid on developing its submission, I was concerned when it was pointed out to me - I had not noticed - that some of the provisions in the Civil Partnership Bill would have the effect of weakening protections for victims under domestic violence legislation. More care needs to be taken in terms of how the amendments affect the domestic violence legal framework. If Women's Aid has not provided the Minister of State with a copy of its submission on the Bill, I will ensure it does so because it is important she is aware of it. This is a cross-over issue, as it were, and, given the importance the national strategy attaches to a whole-of-government approach to domestic violence, it is one area in which cross-departmental work and liaison is clearly required. This will be necessary to ensure domestic violence protections are not watered down, even inadvertently, through the civil partnership legislation.

Before referring to some of the figures and statistics, I propose briefly to discuss the term "domestic violence". The use of the adjective "domestic" has been criticised by many academic commentators over the years on the basis that it can trivialise the nature of the abuse. In a criminal law sense or criminal justice context it somehow divorces this form of violence from the normal criminal law on assault, violence and offences against the person and, therefore, neutralises the full viciousness of the abuse involved. This can render its victims somehow less worthy of the protection of the criminal justice system. The use of the word "domestic" can also serve in a subliminal or indirect way to reduce or minimise the seriousness of this type of abuse in terms of those in the criminal justice system dealing with the perpetrators.

I very much welcome one of the commitments in the national strategy to strengthen the measures used to ensure accountability when dealing with perpetrators. I am very concerned about this issue. Susan Edwards has advocated that where the term "domestic violence" is used, apostrophes should be placed around the word "domestic" to signify the problematic nature of this term. In some of the Irish research, the phrase "violence in intimate relationships between women and men" has been used but that a cumbersome phrase. The advantage to using the term "domestic violence", albeit with that kind of proviso, is that the meaning is widely understood and it emphasises the particular issues that arise with this violence.

The statistics on domestic violence show that although the myth is that the main source of risk and danger of violence is from strangers in the street, the reality is that the home may be a place of serious danger and violence for many. We have seen many different figures in the statistics on the level to which people are at risk of domestic violence. The 2005 national survey conducted by the National Crime Council found that approximately one in seven women, or 15%, and approximately one in 16 men, or 6%, had experienced severely abusive behaviour of a physical, sexual or emotional nature from a partner at some point in their lives. The earlier Women's Aid study showed it to be 18% of women in intimate relationships. The SAVI report showed a higher proportion - 20% of girls and 10% of boys had experienced sexual abuse.

The National Crime Council is perhaps the most conservative but it still points out that even according to its figures, the reality is that in the region of 213,000 women and 88,000 men have been severely abused by a partner at some point in their lives. It found that women's injuries tended to be more serious and that women were almost twice as likely as men to require medical treatment for their injuries and ten times more likely to require a stay in hospital. Not only was there a great deal more women victims involved, the injuries tended to be more serious. For that reason, research and discussion has justifiably tended to focus on women victims, although there is a very clear acknowledgement of the existence of male victims. The law is gender neutral.

Looking briefly at the law and at what is currently in place, it was not until 1976 that we introduced a civil remedy for domestic violence through the concept of the barring order in the Family Law (Maintenance of Spouses and Children) Act. This was strengthened in 1981 and we now have the Domestic Violence Act 1996 which extended protection beyond spouses to non-marital partners. The barring order, the main remedy, provided for in the court, was changed in 2002 following a Supreme Court judgment stating that interim barring orders had to be time limited. The difficulty had arisen owing to delays in the courts, of which the Minister of State will be well aware. There was a problem in that interim barring orders obtained on an ex parte basis remained in place for months at a time. We also have protection and safety orders. The range of orders is extensive but we need to focus on the enforcement of the law and on the powers of the Garda. The Garda has the power to arrest for breaches but the National Crime Council survey found a significant amount of regional variation in the rate of arrests and charges.

I looked at the most recent figures. One of the tasks and priorities of Cosc is to try to ensure some sort of national system of collation of statistics. One of the big difficulties dealing with domestic violence has been obtaining reliable statistics. It does not help that in 2006, the Central Statistics Office took over crime statistics collection from the Garda. We now have a different system of collection which is a source of great difficulty when trying to compare figures. In 2007, there was a 4% increase in the breach of domestic violence court orders. Up to 1,229 breaches were recorded by the Garda. Of that figure, 366 persons were convicted and 351 of those were men. There were also 435 non-convictions, and this is where the concern arises. Some 435 cases of breaches of domestic violence orders preceded to court but resulted in non-convictions. I should have declared an interest as a practising barrister who has worked on some cases. I know from experience that there are many reasons a non-conviction might be recorded. There is some controversy about how strenuously the Garda should prosecute in these cases and there is a divergence of opinion. There has been some academic writing suggesting that quite often the victims or complainants may not wish a conviction to be obtained. They may not wish the perpetrators go to prison. This is a difficult area and I acknowledge that it is difficult for gardaí working in it. It is important the seriousness of this sort of abuse is emphasised through co-arrest policies. That is a policy inherent in the 1996 Act. However, there is still this difficulty with enforcement and regional variation.

Is the law adequate as it currently stands? I will deal first with the difficulty with statistics. We have difficulty establishing the actual incidence of domestic violence and establishing the adequacy of the enforcement mechanisms. There is a core problem with the use of the criminal law. We are still grappling with how to deal with so-called domestic violence because such abuse is generally carried out as part of a pattern of behaviour. The criminal law is designed to deal with one-off incidence of offending such as a one-off assault, a one-off rape, a one-off murder or a one-off burglary, and we see this problem also with child sexual abuse. Where there is a relationship between the victim and offender, as in many child sexual abuse cases and domestic violence cases, one finds a pattern of behaviour where there is an ongoing abusive relationship and yet the criminal law seeks to attribute liability for isolated events in regard to particular offenders. It is a real problem when dealing with child sexual abuse cases in that there is this somewhat mythical idea in prosecuting these cases that one prosecutes sample charges. However, a child may have been abused from the age of seven to the age of 12, or for five years, and yet as anyone working in this area will know, one has sample charges. There might be ten or 12 separate accounts of sexual assault or rape during that period and yet it does not really reflect the pattern and the ongoing nature of the abuse. It is similar with so-called domestic violence. The seriousness of it needs to be emphasised because the pattern tends to be an escalating pattern.

Women's Aid reminds us that since 1996, 162 women have been murdered in Ireland. Of the resolved cases, it points out that 51% of the perpetrators were the partner or ex-partner of the women. We can all straightaway think of very high profile cases of murder of women where there was alleged to have been a pattern of abuse leading up to the ultimate murder.

There are many difficulties with our application of the criminal law to the area of domestic violence. The existence of the civil order mechanism through the 1996 Act - it is only when these orders are breached that criminal liability attaches - recognises the specific nature of domestic violence and it offers an interim way of ensuring some protection for the abused women and their children. There is a difficulty with criminal liability and when we seek to attach that, we attach it for specific breaches of a barring order when there may be an ongoing abusive relationship and, in many cases, ongoing breaches.

I refer to the ongoing nature of the abusive relationship. As the statistics kept by the Garda do not identify repeat call-outs, it is impossible to know how many recorded incidents of domestic violence involve the same individuals. That is perhaps one way to try to address this problem of the pattern of abuse we see. While the criminal law seeks to attach liability for individual breaches and individual abuses, through statistics gathering Cosc could do a great deal to help us to deal with this by ensuring statistics are more detailed, that they identify repeat call-outs and where the same individuals are involved.

The national strategy is to ensure we strengthen protection for those most at risk. Where there is a pattern of abuse and where it is seriously escalating, we need to be confident the Garda is aware of that, that it is, therefore, upping its strategy to ensure a very strong pro-arrest policy and that people are dealt with severely in the courts where necessary to ensure this abuse does not escalate. They need to have a strong pro-arrest policy. We need to ensure people are dealt with severely in the courts, where necessary, in order to ensure abuse does not escalate.

Clearly, the law is only one aspect of the package of measures to deal with the huge problem of domestic violence. As other speakers said, an enormous package of other measures is necessary. I am glad the national strategy identifies such measures as the provision of sufficient places in shelters for victims and their children. We need to provide treatment services for abusers, where appropriate, and adequate resourcing for victim support groups such as Women's Aid. These are all vital measures.

Senator Norris referred to a book written by Frank Crummey who played a vital role in establishing and maintaining the women's refuge in Rathmines. I think it was the first shelter to cater for women suffering domestic violence and their children. I thought it would be nice to finish by acknowledging Mr. Crummey's work.