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Dealing with Domestic Violence During a Pandemic

In our latest blog, Dr Conor Hanly, Lecturer in Law at the School of Law, NUI Galway, discusses the effects COVID-19 has had on domestic violence, taking a specific look at the Domestic Violence Act 2018 and recent enforcement proactivity.


Conor Hanly is a lecturer at the School of Law, NUI Galway where he teaches criminal law, and is the author of An Introduction to Irish Criminal Law (3rd edition). He has a particular interest in the jury and in sexual and domestic violence. He was the principal investigator for Rape and Justice in Ireland (2009) and is on the board of the Galway Rape Crisis Centre. He has conducted research with Safe Ireland, and most recently has published in the area of mandatory reporting (2020). He holds a B.A. and an LL.B. from NUI Galway, an LL.M. from UCD, and an LL.M. and a J.S.D. from Yale Law School.

 

In March 2020, the Irish Government ordered an unprecedented intrusion into the personal liberty of Irish citizens and residents to help restrict the spread of the COVID-19 virus: aside from essential workers, everyone in the country was ordered to remain at home except for necessary and specific reasons.[1] For many, these restrictions were a nuisance and an inconvenience. For those living with an abusive and violent partner, however, the restrictions were potentially life-threatening. As Women’s Aid explained:


‘The reality that the abuser may also be at home more, or all the time, is a very frightening one. Many women and children will spend the next few weeks in suffocating circumstances with their abusers because of the measures to combat COVID-19. There are women trapped inside with their abuser who is using this opportunity to further his control.’[2]


Similarly, Safe Ireland pointed out that the ‘pressures of confinement and isolation could also exacerbate the risk of coercive control and domestic abuse’.[3] A further problem was that a stay-at-home order would make accessing support services more difficult, and there is some evidence of this from Safe Ireland’s statistics. The number of women accessing support services dropped from 1,947 in March 2020 to 1,793 in April 2020, a drop of some 8 percent.[4] The number did not return to pre-lockdown levels until June of that year when the lockdown was being eased. Simultaneously, the number of helpline calls received by Safe Ireland and its affiliates increased over the same period: from 4,650 in March to 6,178 in June, an increase of almost 33%.[5]


The Government Response


The government initially made no mention of the potential impact of the COVID-19 restrictions on victims of domestic violence, particularly the stay-at-home order issued on 27 March 2020. The exceptions to this order, for example, did not include leaving home to escape violence or coercive circumstances.[6] This was in marked contrast to the immediate concern shown for the homeless and others living in emergency accommodation.[7] Nevertheless, the government moved quickly on the domestic violence issue, and on 10 April the Minister for Justice formally announced a multifaceted campaign to ensure that victims of domestic violence would be able to access support services, notwithstanding the pandemic restrictions.[8] Minister Flanagan said:


‘At a time when we have all been told to stay at home, I am very conscious that for victims of domestic abuse, home can be anything but a safe place. That is why I want victims to know that they will continue to receive the highest priority from the civil and criminal justice system throughout the crisis. I want perpetrators to know that too.’[9]


The main pillars of this campaign were the ‘Still Here’ campaign and the Garda ‘Operation Faoiseamh’. The Still Here campaign is an initiative of the Department of Justice and Equality and a range of non-governmental agencies. It is a public awareness effort designed to ensure that victims of domestic violence are aware of the resources available to them. Of particular importance, the campaign makes clear that ‘[r]estrictions on movement do not apply to a person escaping from a risk of harm or seeking to access essential services’.[10] Operation Faoiseamh commenced on 1 April 2020 to demonstrate that dealing with domestic violence remains a priority for the Gardaí notwithstanding pandemic restrictions.[11] Coordinated by the Garda National Protective Services Bureau, the Gardaí proactively reached out to previous victims of domestic abuse to offer reassurance, support and specialised resources.[12] They also focused on the enforcement of domestic violence orders issued under the Domestic Violence Act 2018, and the prosecution of offenders.


The Domestic Violence Act 2018


There is no specific offence of domestic violence in Irish law, but domestic violence offenders can be prosecuted criminally if their actions constitute a recognised offence such as assault, threats to kill or cause serious harm or rape. For the most part, Irish law relies upon civil protective orders that may be sought by victims of domestic violence. These orders are now controlled by the Domestic Violence Act 2018, which repealed pre-existing legislation but re-enacted the provisions concerning these protective orders, and loosened some of the requirements for those orders.[13] The Act also introduced a new emergency barring order that allows for the removal of a respondent from a specified premises for up to eight days where his or her legal or beneficial interest in the property is greater than that of the applicant.[14] This was an advance on the previous law; previously, an individual could not be barred from a premises in which he or she held a superior interest. All the orders granted under the Act are civil orders, but breaching them is a criminal offence punishable by up to 12 months’ imprisonment.[15] Gardaí can also arrest without warrant anyone reasonably suspected of breaching an extant order.[16]


Perhaps most importantly, the 2018 Act introduced a new offence of coercive control.[17] This is an either-way offence punishable by up to five years’ imprisonment, which places the offence on a par with assault causing harm and coercion. [18] The concept of coercive control is most associated with the American sociologist Evan Stark, who described it as a ‘course of calculated, malevolent conduct deployed almost exclusively by men to dominate individual women by interweaving repeated physical abuse with equally important tactics: intimidation, isolation, and control’.[19] The government had originally not included coercive control in the legislation due to perceived difficulties in definition and enforcement.[20] Yet, the British government had introduced this offence in 2015, and the Irish government reversed their stance at Committee Stage. [21] Under the 2018 Act, an offence is committed when a person knowingly and persistently engages in controlling or coercive behaviour that has a serious effect on the victim and is such that a reasonable person would consider such an effect to be likely.[22] The victim must be either the respondent’s spouse or civil partner, or have been in an intimate relationship with him or her. Notwithstanding Stark’s attribution of coercive control mainly to men, both the Irish and British laws are drafted in gender-neutral terms. In R v Worth, for example, the female defendant was convicted of coercive control involving the use of blunt instruments to strike the victim causing him injuries, refusing on occasions to assist the victim or bring him to hospital, forcing him for nine months to sleep on the floor, and refusing him access to food when food or money was scarce.[23] Most cases brought to date, however, have been brought against men.


Enforcement


Since the beginning of Operation Faoiseamh, the Gardaí made or attempted 23,785 contacts with known victims of domestic violence and recorded some 43,000 calls concerning incidents of domestic abuse.[24] This latter figure represents a 16 percent increase on the figure for 2019.[25] From the beginning of the Operation, the Gardaí instituted 217 prosecutions for breaches of court orders, 110 of them being since the end of October.[26] They also recorded the first three convictions for coercive control during 2020, including the first trial conviction in November 2020. [27]


Conclusion


It is unclear whether the Still Here campaign and the new proactivity in the Garda approach to domestic violence will outlive the COVID-19 lockdowns.[28] Certainly, the pandemic has shown that greater proactivity in dealing with domestic violence is possible, and this is entirely in line with the ethos of the Garda National Protective Services Bureau. Slipping back to a more reactive approach after the pandemic would be a retrograde step. Further, while the State may have compensated for the impact that the COVID-19 restrictions might otherwise have had on victims of domestic violence, serious infrastructural deficiencies remain unaddressed. The provision of emergency victim accommodation is a good example. Safe Ireland’s figures show that between March and December 2020, the agency’s affiliated organisations were forced to refuse 2,249 requests for refuge accommodation.[29] Admittedly, this figure was down considerably on the same figure for 2018 (3,256), but it remains the case that over 2,000 requests for refuge accommodation had to be refused, notwithstanding the increased attention being paid to domestic violence during the pandemic.[30] The 2018 Act provides multiple tools to be deployed against perpetrators of domestic violence, and we must acknowledge the good work done by the Still Here campaign and Operation Faoiseamh. This acknowledgement should not, however, act as a fig leaf for Ireland’s long-running failure to address these more entrenched shortcomings.



[1] The government issued its first set of restrictions on March 12th, but followed them with more severe restrictions – including the stay-at-home order – on March 27th, ‘Speech of Taoiseach Leo Varadkar 27 March 2020’ (MerrionStreet, 27 March 2020) <https://merrionstreet.ie/en/news-room/news/speech_of_taoiseach_leo_varadkar_27_march_2020.html> accessed 18 March 2021.

[2] Sarah Benson, ‘Home Not Always the Safest Place During the COVID-19 Crisis (Women’s Aid, 18 March 2020) <https://www.womensaid.ie/about/newsevents/news/2020/03/18/media-release-home-not-always-the-safest-place-dur/> accessed 18 March 2021.

[3] ‘National Domestic Violence Agency Keeping an Update on Services Available for Women and Children in Absence of Government Directive’ (Safe Ireland, 13 March 2020) <https://www.safeireland.ie/national-domestic-violence-agency-keeping-an-update-on-services-available-for-women-and-children-in-absence-of-government-directive/> accessed 18 March 2021.

[4] ‘Tracking the Shadow Pandemic’ (Safe Ireland, November 2020) 2 <https://www.safeireland.ie/policy-publications/> accessed 18 March 2021.

[5] ibid 4.

[6] MerrionStreet (n 1), nor did the Gardaí initially advert to the issue of domestic violence during the pandemic: see for example ‘COVID-19 – An Garda Síochána Begins Major Policing Operation in Support of Public Health Compliance of Public Health Measures’ (An Garda Síochána, 2020) <https://www.garda.ie/en/about-us/our-departments/office-of-corporate-communications/press-releases/2020/march/COVID-19-–-an-garda-siochana-begins-major-policing-operation-in-support-of-public-compliance-of-public-health-measures.html> accessed 18 March 2021; ‘Monthly Report to the Policing Authority’ (An Garda Síochána, 2020) <https://www.garda.ie/en/about-us/publications/general-reports/commissioner-s-monthly-reports-to-policing-authority/commissioners-monthly-report-to-the-policing-authority-march-2020.pdf> accessed 18 March 2020.

[7] See for example ‘Work Continues on Protecting Those in Emergency Accommodation During the COVID-19 Crisis’ (MerrionStreet, 21 March 2020) <https://merrionstreet.ie/en/news-room/news/work_continues_on_protecting_those_in_emergency_accommodation_during_the_COVID_19_crisis.html> accessed 18 March 2021; ‘Further Update on Homeless Services in Light of New Restrictions’ (MerrionStreet, 29 March 2020) <https://merrionstreet.ie/en/news-room/news/further_update_on_homeless_services_in_light_of_new_restrictions.html> accessed 18 March 2021.

[8] ‘Ministers Flanagan and Stanton Announce Campaign to Reassure Victims of Domestic Abuse that Support is Still Available Despite COVID-19’ (Department of Justice, 10 April 2020) <http://www.justice.ie/en/JELR/Pages/WP20000054> accessed 18 March 2021.

[9] ibid.

[10] ‘If Your Home Isn’t Safe, Support is Still Here’ (Department of Justice) <https://www.stillhere.ie> accessed 18 March 2021.

[12] An Garda Síochána formed the National Protective Services Bureau in 2017 to oversee investigations into particularly serious offences, including sexual crime, human trafficking, child exploitation and domestic violence; See ‘Garda National Protective Services Bureau (GNPSB)’ (An Garda Síochána) <https://www.garda.ie/en/about-us/organised-serious-crime/garda-national-protective-services-bureau-gnpsb-/> accessed 18 March 2021; Protective Services Units have now been formed in each Garda division; For an overview of the Operation, see ‘Operation Faoiseamh (Phase 3) – An Garda Síochána Continues to Support Victims of Domestic Abuse’ (An Garda Síochána, 28 October 2020) <https://www.garda.ie/en/about-us/our-departments/office-of-corporate-communications/news-media/operation-faoiseamh-phase-3-–-an-garda-siochana-continues-to-support-victims-of-domestic-abuse.html> accessed 18 March 2021.

[13] The Domestic Violence Act 1996 made provision for the following orders: a safety order which prohibited the respondent from using or threatening violence, molesting or putting the applicant in fear, watching or besetting the applicant’s residence if the respondent lived elsewhere, or following or communicating with the applicant; a protection order which operated essentially as an interim safety order; barring and interim barring orders which removed the respondent from a specified premises for a specified period; For a summary of the changes made to these orders by the 2018 Act, see Keith Walsh, ‘Domestic Violence Act Strengthens Victims’ Rights’ (2019) 113(1) Law Society of Ireland Gazette 26.

[14] Domestic Violence Act 2018, s 9.

[15] ibid s 33.

[16] ibid s 35.

[17] ibid s 39.

[18] ibid s 39(3); Non-Fatal Offences Against Person Act 1997, ss 3 and 9.

[19] Evan Stark, Coercive Control: How Men Entrap Women in Personal Life (Oxford University Press, 2007) 5.

[20] Seanad Deb 1 March 2017, vol 250, no 8, per Minister for Justice and Equality.

[21] Serious Crime Act 2015, s 76; Seanad Deb 28 November 2017, vol 254, no 9.

[22] Domestic Violence Act 2018, s 39(1); A serious effect arises when the victim fears that violence will be used against him or her, or suffers ‘serious alarm or distress that has a substantial adverse impact on his or her usual day-to-day activities’ Domestic Violence Act 2018, s 39(2).

[23] R v Worth [2018] EWCA Crim 1923, [2018] 6 WLUK 621 (CA).

[24] ‘An Garda Síochána – Here to Support Victims of Domestic Abuse’ (An Garda Síochána, 25 January 2021) <https://www.garda.ie/en/about-us/our-departments/office-of-corporate-communications/press-releases/2021/january/an-garda-sochna-here-to-support-victims-of-domestic-abuse-25th-january-2021.html> accessed 18 March 2021.

[25] ibid.

[26] ‘217 Prosecutions Commenced Under Operation Faoiseamh’ (An Garda Síochána, December 2020) <https://www.garda.ie/en/about-us/our-departments/office-of-corporate-communications/press-releases/2020/december/217-prosecutions-commenced-under-operation-faoiseamh.html> accessed 18 March 2021.

[27] ‘An Garda Síochána' (n 24); Brian Hoban and Isobel Hayes, ‘Man Convicted of Coercive Control and Multiple Assaults on Ex-Partner’ The Irish Times (Dublin, 11 November 2020) <https://www.irishtimes.com/news/crime-and-law/courts/circuit-court/man-convicted-of-coercive-control-and-multiple-assaults-on-ex-partner-1.4406638#:~:text=During%20first%20trial%20under%20new,cut%20woman%20with%20pizza%20slicer&text=A%20jury%20has%20convicted%20a,the%202018%20Domestic%20Violence%20Act.> accessed 18 March 2021.

[28] The Gardaí have indicated that Operation Faoiseamh will continue for as long as restrictions of movement are in place; See however ‘217 Prosecutions Commenced’ (n 26); However, Conor Lally, ‘Domestic Violence: New Garda Approach May Outlast Pandemic’ The Irish Times (Dublin, 27 January 2021) https://www.irishtimes.com/news/crime-and-law/domestic-violence-new-garda-approach-may-outlast-pandemic-1.4468507 accessed 18 March 2021.

[29] An amalgamation of figures presented in Safe Ireland ‘Tracking the Shadow Pandemic’ (n 4) and ‘Tracking the Shadow Pandemic – Lockdown 2’ (Safe Ireland, February 2021) <https://www.safeireland.ie/policy-publications/> accessed 18 March 2021.

[30] ‘Domestic Abuse Services National Statistics 2018’ (Safe Ireland, 2019) <https://www.safeireland.ie/policy-publications/> accessed 18 March 2021.

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