The recent Domestic Violence Act 2018 replaces the 1996 Domestic Violence Act 1996 and the Domestic Violence (Amendment) Act 2002 and introduces major changes to the law, some of which give rise to serious concerns, particularly if you are a man. We are particularly concerned because most of the changes appear to reflect a current climate that deems men guilty of domestic violence unless proved innocent. We are concerned because these court hearings will continue to be heard in secret and because the normal rules of evidence will not, in practice, apply. More than ever, it will be essential that anybody attending court in these circumstances be legally represented given that the outcome of these hearings can be so catastrophic for the losing party. We see particular problems for men who are being charged with the new criminal offense of coercive control in circumstances where so much will rest on one person’s uncorroborated version of very contested events. This new law includes measures to combat gender-based violence, including the criminalizing of forced marriages, repealing legislation that previously allowed underage couples to marry, and allowing for victims of domestic abuse to apply for safety protection orders – regardless of whether or not they live with their abuser. We set out below some of the main points included in the new Act DEFINITION As a result of this new legislation, domestic abuse can now be defined as the physical, sexual, financial, emotional or psychological abuse of one person by another within a family environment or by a current or previous intimate partner, regardless of gender or sexuality. COERCIVE CONTROL In our view, the most important change in the law relates to the new offense of Coercive Control. Section 39 of the new Act defines the new criminal offence of coercive control as knowingly and persistently engaging in behaviour that is controlling or coercive, that has a serious effect on a spouse or a person who is, or was, in an intimate relationship with the alleged offender, and that a reasonable person would consider likely to have a serious effect on a relevant person. The criminal offense of Coercive Control is an arrestable offence, liable on conviction to a fine or a term of imprisonment not exceeding 5 years. An investigation into Coercive Control must result in a file to the Director of Public Prosecutions. Ireland is one of only a few countries that have now criminalized psychological or emotional abuse. It will be very hard to prove this offense in an open, criminal court, but far less difficult in a closed family court. SAFETY AND PROTECTION ORDERS All partners in an intimate relationship, which does not have to be committed or sexual, are eligible to apply for Safety and Protection orders. Cohabitation is not necessary. The following can therefore apply:
- Spouses and civil partners
- Parents with a child in common
- Partners in an intimate relationships (including cohabitants and dating partners)
- Parents of an abusive child, when the abuser is a non-dependent child (i.e. an adult)
- People residing with the respondent in an non contractual relationship
All of the above include former partners as well (e.g. former spouse, cohabitant, etc.) One welcome development is that all applications for ex parte Protection Orders will now be required to complete an affidavit/sworn statement BARRING AND INTERIM BARRING ORDERS (IBOs) A major change here is that now there is no minimum period of cohabitation required for cohabitant applicants. The following can apply for Barring Orders and Interim Barring Orders:
- Spouses and civil partners
- Cohabitants who live in an intimate relationship AND where the applicant has an equal or greater interest in the property than the respondent (‘the property test’)
- Parents where the abuser is a non-dependent child (i.e. if the abusive child is an adult) and who satisfy the property test.
Former partners can also apply EMERGENCY BARRING ORDERS This is a new order that gives short term protection where there is an immediate risk of significant harm to cohabitants who do not satisfy the property test. An Emergency Barring Order can be obtained ex parte ie. with only the Applicant present, and shall operate in the same manner as a Barring Order but will only last for 8 working days. A subsequent Emergency Barring Order cannot be sought within one month of the expiration of a previous Emergency Barring Order. Finally, we are also concerned that an applicant (but not a respondent) has the right to be accompanied in court by a support person, including a support worker. The court may refuse to allow the applicant be accompanied by a particular support person, but it would have to give reasons. It appears extraordinary to us why the person who could end up homeless or in prison can not bring a support person with them to court. This is all the more reason why men in particular need to be legally represented when do use court hearing is to take place.