chapter  7
25 Pages

Mandatory prosecution and arrest as a form of compliance with due diligence duties in domestic violence – the gender implications


This chapter is concerned with the impact of rights discourse on the issue of domestic violence and the gender implications that employing such a discourse entails. It will start with outlining how women’s organisations harnessed international human rights norms in order to produce international legislation designed to combat domestic violence and simultaneously introduce state responsibility, by way of due diligence mechanisms, in order to measure compliance with their obligations. A brief outline of human rights instruments at the regional and domestic level, the European Convention on Human Rights and the Human Rights Act 1998, will demonstrate how such instruments can and have been used by individual victims of domestic violence to enforce State compliance with their obligations under these instruments. The second part of the chapter examines the effectiveness of mandatory arrest and conviction policies as a means of state compliance with the positive obligations created by international human rights instruments. The pros and cons of these policies will also be examined from the feminist perspective as will the implications that the adoption of such policies hold for women. The chapter will conclude with recommendations concerning the use of such policies in a manner which strikes the right balance between respecting the human rights of women, individuals and society as a whole.