Seanad debates

Tuesday, 4 July 2017

Domestic Violence Bill 2017: Committee Stage (Resumed)

 

2:30 pm

Photo of David NorrisDavid Norris (Independent) | Oireachtas source

I also welcome the Minister of State and his advisers to the House. There have been changes since the last debate and there was an attempt to add names. However, anyone who reads the debate will see that it is not necessary to have one's name on every amendment. There are those of us who contribute passionately and will be regarded by the interested public as having taken a significant role. Therefore, I am not too worried about that.

Barnardos has taken a strong line on the absence of a specific offence of domestic violence. It stated that it is a significant weakness as it perpetuates the misconception that domestic violence is largely physical abuse and that "[w]hile some victims do experience physical and sexual abuse, [it fails to understand that] domestic abuse is often characterised by persistent, controlling and coercive behaviour that causes emotional and psychological trauma on victims including children". There we have the phrase "controlling and coercive behaviour" which is defined. "Domestic violence" is defined in the amendment as is "controlling behaviour" and "coercive behaviour".

Since the last debate, I imagine that we have all been contacted by the Law Society. Its first recommendation in its communication on the Bill is that a definition of domestic violence be included in section 2 of the Bill to include all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit, including online stalking and harassment. The Law Society, an independent body, strongly recommends, as its first recommendation, that this should be taken on board.

In addition, its document states that, with regard to the inclusion of a definition of domestic violence in section 2, while the entire Bill is concerned with domestic violence, there is no definition of domestic violence in it. On the surface, it seems quite absurd. We have a Bill dealing with a specific subject that contains definitions of this, that and the other, but no definition of the principal source of concern in the Bill. Unless the Minister of State can provide an alternative explanation, that seems to be a serious lacuna.

On the last occasion, if my memory serves me right, the Minister said that it was a good idea to include such a definition. One therefore assumes that the definition will be accepted. It is arguable whether this specific and particular definition will be accepted but the proposer has indicated that she is happy to accept emendations which would clarify and improve the legislation. The Law Society continues by stating that such a definition is required to ensure that domestic violence, as defined in Article 3 of the Istanbul Convention, is recognised in law and practice and that that definition goes beyond physical violence to mean "all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit". I note the language used. Such a definition is required. In other words, legislation is defective without this definition.

The second thing the Law Society states is that the United Nations Committee on the Elimination of Discrimination against Women recommended that Ireland produce a specific definition of domestic violence and other emerging forms of gender-based violence such as online stalking or harassment. Therefore, another body, the United Nations Committee on the Elimination of Discrimination against Women, has recommended that this country take this on.

I see now that my memory is accurate because the third point the Law Society makes is that the Minister for Justice and Equality observed on Second Stage of the Bill that legal issues prevent the inclusion of a definition of domestic violence. The Law Society states that it would welcome an indication of those legal issues so that an accommodation within a carefully considered definition can be found. The Minister has had a number of weeks to consider this and I very much hope that it will be possible for the Seanad to be advised of what precisely are the legal issues to see if, with the assistance of Senators, we can find a way around this. It seems absurd that we have a situation where a definition of domestic violence is left out of the Bill. We have it in other jurisdictions, so they apparently have no legal problem. Perhaps it is a problem peculiar to the Irish Constitution. If it is, let us have it out in the open and let us see what is the situation.

With regard to the situation, which is often concealed, of the impact on children of domestic violence, I got figures from Women's Aid. In 2016, Women's Aid received 3,823 disclosures of child abuse in the context of domestic violence. When the figure is broken down, we find that 3,558, or 90%, were disclosures of emotional abuse. Only 183 were disclosures of physical or sexual abuse. That is very interesting because it tells us that the overwhelming preponderance of damage inflicted upon children in situations of domestic violence actually constitutes emotional abuse.

To help the Minister of State, I will give an example of a definition from our nearest neighbour, the United Kingdom. This has apparently gone through and was passed. I think the section is in the family law Act but there is no point wasting time looking for the specific section. I am sure the Minister of State will be able to find it. In fact, it is section 76 of the Serious Crime Act 2015 that deals with controlling or coercive behaviour. Controlling behaviour has been described as, "a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour". Coercive behaviour has been described as, "an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten their victim".

I also have a non-exhaustive list of examples from the United Kingdom which includes: isolating people from their friends and family; depriving them of their basic means; monitoring their time; monitoring a person via online communication tools or using spyware; taking control over aspects of their every day life such as where they can go, who they can see, what to wear and where they sleep; depriving them of access to support services such as specialist support or medical services; repeatedly putting them down such as telling them they are worthless; enforcing rules on activity which humiliate, degrade or dehumanise the victims; forcing the victim to take part in criminal activity such as shoplifting, neglect or abuse of a child to encourage self-blame or prevent disclosure to authorities; and financial abuse including control of finances such as only allowing a person a punitive allowance.There was also a case, which I instanced the last time, of a man deliberately controlling the bank accounts of his wife. Other examples are threats to kill, threats to a child and threats to reveal or publish private information, such as threatening to out someone, for example, threatening to tell everyone that a person is gay. Offences dealing with the publication by one party of intimate photographs or videos that were exchanged in an intimate relationship, to the shame and embarrassment of the second party, could be included. It is not listed here but I am sure it could be part of it. Other examples are criminal damage, assault, rape and preventing a person from having access to transport while working. It is not an exhaustive list. It shows what is being done in the United Kingdom.

On the previous day, almost everyone, including the then Minister for Justice and Equality, agreed that a definition of domestic violence was a significant element missing from the Bill. The Minister quoted legal difficulties and told the House there were legal constraints on introducing such a definition. She did not specify what those legal constraints or difficulties were. Will the Minister of State indicate to the House what those difficulties are and how they can be addressed? That is mostly about amendment No. 1.

I am not sure I have indicated the correct place for amendment No. 52, which introduces an offence, because it comes right at the end of the Bill. If it is not the appropriate place, it can be looked at. It creates the conditions for the commission of an offence. It provides "A person A commits an offence if (a) person A repeatedly or continuously engages in behaviour towards another person B that is controlling or coercive". If the amendment is accepted, we will have definitions of controlling and coercive behaviour. I will not read the entire amendment because I take it it has been read and it would be time-wasting to read the whole thing. The main thing is it creates an offence of controlling or coercive behaviour in an intimate or family relationship.

I look forward with interest to the Minister of State's response.

Comments

No comments

Log in or join to post a public comment.