ABSTRACT
In the past thirty years the range of legal remedies for domestic violence in England and Wales has greatly expanded. This is particularly the case in relation to the civil law, where Part IV of the Family Law Act 1996 (FLA) introduced non-molestation and occupation orders for a wider range of applicants, based on more generous criteria than the protection orders that had previously been available under domestic-violence legislation. The criminal law has perhaps been slower to respond. There is no specific criminal offence of domestic violence. The response, therefore, has to be measured in terms of how the courts have adapted generic criminal offences (and defences) to accommodate domestic violence and how the criminal-justice agencies have developed their policies and implemented them in practice. There have arguably been some improvements in the legal response to domestic violence both in terms of substantive law and practice, raising the profile of domestic violence as a ‘public’ problem. Yet much of the violence that occurs in intimate relationships remains ‘private’ in the sense that it either does not come to the attention of the legal system or, if it does, the system treats it primarily as a matter to be resolved between the parties out of court. Some commentators would argue that a civil-justice response continues to treat domestic violence as a ‘private’ matter to be dealt with by the parties. From this perspective, only a rigorous criminal-justice response constructs domestic violence as a ‘public’ problem. It will be argued here that the ‘unmasking’ of private violence can be achieved either through the civil or the criminal-justice systems.1 To do this, legal constructions of domestic violence must challenge rather than reinforce traditional gender roles, empower women and enhance their choices. There are many hurdles still to be overcome in unmasking the true nature of
domestic violence. Legal responses to domestic violence continue to focus on the issue of the conduct of the victim and need to shift their focus from blaming women for being abused to clearly stating the responsibility of men for abusing. A significant step towards further improving legal responses to domestic violence may come from recognition of the gendered nature of the problem. This is
because international and European human-rights instruments require an effective response as part of their non-discrimination provisions. Human-rights concepts have the potential to contribute to the project of translating ‘private’ violence into a ‘public’ problem either by stimulating policy development or through facilitating challenges to current practices presented by individuals using human-rights law. This chapter begins by examining the gendered nature of domestic violence, then examines current legal practices and concludes by considering some of the possible implications of these practices from a human-rights perspective.
