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December - January 2017 3 1
O
RGANISATIONS THAT support victims of
domestic violence have been calling for many
years for legal reforms to offer greater protec-
tion for victims. Victims of domestic violence
who are not cohabiting, or do not have a child
in common with an abusive partner, are not eligible to
apply for court safety orders. Even where they are eligi
-
ble for legal protection, they often endure long delays in
court processes, and they suffer due to the serious lack
of co-ordination between different Courts hearing sepa-
rate applications relating to the same family. It is
outrageous for example that issues of custody and
access to children may be dealt with by a judge who is
unaware of parallel domestic-violence proceedings.
Given the right set of facts and a suitable litigant, I
believe that there is now potential for legal action to be
taken against the State for the failure to provide ade-
quate protection against domestic violence for women
and children. This is a case waiting to happen. Such a
case could ensure greater awareness of the challenges
faced by victims in negotiating legal processes and
speedier introduction of the necessary legal reforms.
Similar calls for reform of legislation on rape in the
interests of victim protection are being made in the wake
of the recent O’R case, where the Supreme Court rejected
an appeal by a man who had been convicted of raping
his mother. The court confirmed the current law that an
“honest, though unreasonable, mistake that the woman
was consenting is a defence to rape”. Rape crisis cen-
tres and others are calling for a statutory definition of
‘consent’ to be included in the current sex offences Bill.
They have also argued that legislation on rape should
be changed fundamentally, to require that a man should
not have a defence to rape where he makes an unrea-
sonable mistake about a woman’s consent.
A core problem with the criminal law is that it is gen
-
erally designed to deal with isolated events. It can be
difficult to apply in the context of an ongoing abusive
relationship. Garda statistics do not identify repeat call-
outs, so it is impossible to know how many recorded
incidents involve the same individuals. Indeed we know
that a great deal of domestic violence goes unreported.
However, reporting levels have tended to rise where indi-
vidual victims and survivors come forward to tell their
stories and to highlight the need for action to be taken
against abusers.
Recent legal reforms such as the use of victim impact
statements in sentencing were introduced largely
because of brave individuals who spoke out about their
experiences as victims and survivors, and the advocacy
of others supporting them, like Women’s Aid. Their work
has debunked many of the problematic myths about rape
and domestic violence. We now have a better under-
standing of the terrible effects of such offences upon
victims. We know that the majority of perpetrators are
known to their victims.
The sharing of experiences, and the taking of public
interest litigation, are both valuable ways of achieving
legal and social change. In a book that I edited with my
TCD colleague Dr Mary Rogan, recently published as
‘Legal Cases that Changed Ireland’, we asked some indi-
viduals who have taken ground-breaking cases to speak
about their experiences. These include Máirín de Burca,
who won her case before the Supreme Court in 1975
establishing the right of women to serve on juries; and
Dr Micheline Sheehy Skeffington, who in 2014 won her
Equality Tribunal claim that NUI Galway had discrimi-
nated on gender grounds by denying her academic
promotion. Their individual stories, based in experi
-
ences 40 years apart, are both essentially tales of
courage, of brave women whose actions have made our
society more equal.
The book shows, however, that the law is only one part
of the solution when it comes to achieving progressive
change. A range of strategies is necessary, including lob-
bying, advocacy and campaigning work, to bring about
change in attitudes and culture. With domestic violence,
a whole package of other measures is necessary, beyond
legal reform, including better provision of shelters for
victims and their children and of adequate resources for
support groups across the country. Currently services
are not universally available and, in some areas, victims
of gender-based violence have no access to shelters or
support groups.
We need a fundamental change of emphasis, to chal
-
lenge a culture in which gender-based violence may
sometimes be tacitly tolerated. We need to work on
changing attitudes among those engaged in perpetrat-
ing abuse, in order to prevent it in the first place, rather
than constantly trying to mend the damage that abusers
do. As the stories told in our book show, true legal and
social change can only be achieved through a combina
-
tion of legal activism, sharing of experiences, advocacy
and campaigning work.
Legal change
But the feminist agenda, especially
on domestic violence, depends on
campaigning and sharing experiences too
by Ivana Bacik
A problem with the
criminal law is that
it is designed to
deal with isolated
events but can be
difficult to apply
to ongoing abusive
relationship
