Organisations that support victims of domestic violence have been calling for many years for legal reforms to offer greater protection 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 eligible 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 separate 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 adequate 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 centres 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 unreasonable mistake about a woman’s consent.
A core problem with the criminal law is that it is generally 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 callouts, 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 individual 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 understanding 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 individuals 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 discriminated on gender grounds by denying her academic promotion. Their individual stories, based in experiences 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 lobbying, 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 challenge a culture in which gender-based violence may sometimes be tacitly tolerated. We need to work on changing attitudes among those engaged in perpetrating 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 combination of legal activism, sharing of experiences, advocacy and campaigning work.