Amendments Nos. 1, 52 and 53 are related and may be discussed together by agreement.
Domestic Violence Bill 2017: Committee Stage
I move amendment No. 1:
In page 7, between lines 3 and 4, to insert the following:
“ “domestic violence” means any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse, (even if all or any of those incidents, when viewed in isolation, may appear to be minor or trivial), inflicted against an applicant or a dependent person by the respondent and includes all acts of physical, sexual, psychological or economic violence. In relation to “domestic violence”—
(a) “coercive behaviour” is an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the applicant or a dependent person by the respondent;
(b) “controlling behaviour” is a range of acts designed to make an applicant subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour;
(c) “psychological” means violence inflicted against an applicant or a dependent person by the respondent and includes, but is not limited to, all, or any of the following:
(i) threatening (including threating suicide) to use violence against, molesting or putting in fear;
(ii) harassing by persistently following, watching, pestering, besetting or communicating;
(iii) damaging property;
(iv) ill-treatment of one or both of the following:
(I) household pets;
(II) other animals whose welfare affects significantly, or is likely to affect significantly, an applicant or a dependent person’s well-being;
(v) causing or allowing a dependent person to see or hear the physical, sexual, or psychological abuse of an applicant; or puts a dependent person, or allows a dependent person to be put, at real risk of seeing or hearing that abuse occurring. However, an applicant who suffers abuse as defined by “domestic violence” is not regarded as having—
(I) caused or allowed a dependent person to see or hear that abuse; or
(II) put a dependent person, or allowed a dependent person to be put, at risk of seeing or hearing that abuse.”.
Amendments Nos. 1, 52 and 53 are being discussed together. Amendment No. 1 provides a definition of domestic violence that captures not only acts of physical violence, including sexual violence, but also acts of psychological and economic abuse, including stalking and other forms of harassment, and acts which are undertaken to exercise coercive control over their victim. A law against coercive control has recently been introduced in the United Kingdom. The aim of the Domestic Violence Bill 2017 should be to reduce and prevent violence in domestic relationships by recognising that domestic violence, in all its forms, is unacceptable behaviour and by making sure there is effective legal protection for victims of all forms of domestic violence, not just the customary physical abuse of which we are all very intolerant. I thank my colleagues in the National Women's Council, Safe Ireland and others for all their support in tabling these amendments.
This Bill refers to domestic violence 36 times without attempting to define it, thereby implying that what is meant by domestic violence is clear and understood. However, reports and statistics to date do not reflect that position, and therefore it is essential that the Bill provides clarity. There is a real opportunity to do in the Bill. The committee on the UN Convention on the Elimination of All Forms of Discrimination against Women has called on the Government to introduce a specific definition of domestic violence into our laws. In 2014, the Joint Committee on Justice, Defence and Equality said that domestic offences, given their seriousness, must be clearly defined.
When determining what this definition should look like, we should look to the Istanbul Convention, to which we must adhere. It defines domestic violence as all acts of physical, sexual, psychological or economic violence that occur in the family or domestic unit or between former or current spouses or partners, regardless of whether the perpetrator shares or has shared the same residence with the victim. This is set out in Article 3 of the convention. The convention also states that violence against women includes threats of the acts listed above as well as coercion or arbitrary deprivation of liberty.
The National Women's Council of Ireland has called for a clear statutory definition of domestic violence that reflects modern understanding and it should capture not only acts of physical violence, including sexual violence, but also acts of psychological and economic abuse, including stalking and other forms of harassment, and acts that are undertaken to exercise coercive control over their victim. Furthermore, it should recognise that violence within the home is not limited to intimate relationships and can extend to all members of the household.
Inserting a definition into legislation is a feature of other common law jurisdictions. In particular, New Zealand has had a definition of domestic violence since 1995 which has been amended several times since enactment as social norms and expectations continue to change and new evidence about how to stop violence occurring continues to emerge. The definition recognises that a distinguishing characteristic of intimate partner violence and child abuse is that violence can be a pattern of harmful behaviours occurring over time that can result in the victim's life being controlled by the perpetrator in a very real way.
I urge the Minister to accept this amendment. I thank the National Women's Council of Ireland for its help and assistance with this amendment.
I support amendment No. 1 in addition to amendment No. 52 in my name as well as the names of other Senators. It is rather difficult to provide a completely exhaustive list of behaviours. I have had a communication about a situation in which a woman was being coerced, controlled and intimidated by her husband, outlining the methods he used. These included putting on the hot water system and consistently leaving the taps running in order that enormous bills would mount up. There was also telephone and other abuse. It is rather difficult to produce a completely exhaustive list. However, the absence of any kind of definition causes a problem and it might lead to a conclusion that domestic violence is the only thing that is contemplated by the Bill. I have the highest regard for Barnardos as an agency and it has given us strong indications that it would support this Bill.
I point out that I think there is a typographical error in paragraph (c)(i), which reads "threatening (including threating suicide)", which I think should be "threatening suicide".
The situation in terms of women is very worrying indeed. The numbers that are being supplied to me are quite horrifying. In 2015, just two years ago, 9,712 women and 3,383 children got support from a domestic violence service. That is astonishing. Some 1,471 women and 2,093 children stayed in a refuge. That is a very interesting figure. It shows a shift in balance from the first figures. The figure of 9,712 women and 3,383 children shows a complete preponderance of women and a considerably lower number of children. When it comes to staying in a refuge, the situation is reversed, where it is a smaller number of women and a considerably larger number of children. That shows the vulnerability of children in these situations of domestic violence.
What is more worrying is that 4,796 requests for refuge could not be met.
On one day in 2015, 502 women and 269 children sought and received support from a domestic violence service. Some 112 women and 147 children were accommodated in refuge but - and here is the real stinker - 18 women could not be accommodated in refuge. In the past week or two we have been very concerned about a small number of homeless families who were not accommodated and slept in their cars but this is much worse. It is one thing to be homeless and uncomfortable in a car but these people are exposed to the danger of violence and the danger of harm being visited upon them.
We would not be alone in introducing definitions of controlling and coercive behaviour. In the United Kingdom, section 76 of the Serious Crime Act 2015 defines controlling behaviour as a range of acts designed to make persons subordinate and-or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape, and regulating their everyday behaviour. Coercive behaviour is defined in a far more extensive way and includes threats to a child, threats to hurt a child, threats to publish private information, denying people access to transport, isolating them from friends and family, depriving them and monitoring their time and their bank accounts. In British Columbia in Canada, the Family Law Act, chapter 25, part 1, defines family violence as, "physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm". It also includes sexual abuse of a family member, attempts to physically or psychologically abuse a family member and the exposure of a child to the threat of physical violence.
My amendment shows the significance of the previous amendment because it refers directly to controlling or coercive behaviour and states what is required to establish that an offence has been committed. In the absence of a definition, this is substantially more difficult so it is important to have one. The definition goes with amendment No. 52 and proposes that a person commits an offence if he or she repeatedly or continuously engages in behaviour towards another person that is controlling or coercive. It is assumed by the Minister that everybody knows what controlling or coercive behaviour is but it is no harm to have a definition. It exempts a parent because a parent has a right and an obligation to control the behaviour of a child and if a child is behaving inappropriately it would be part of his or her learning process. There follows a series of definitions relating to when people are members of the same family, etc. I will support amendment No. 1, which gives the definition and leads into amendment No. 52.
I have no difficulty in supporting amendment No. 53, although I am not as strongly in favour of it as I am in favour of amendment No. 1 and my own amendment No. 52.
I welcome the opportunity to engage in constructive debate on this Bill, which we all welcomed on Second Stage, and I am sure the Minister will be amenable to looking at many of the proposed amendments. A number of us have worked on amendments with different NGOs and I welcome those in the Gallery, particularly the representatives from Safe Ireland. I thank the National Women's Council, Women's Aid and Barnardos, all of which have fed into the background work for the potentially constructive reforms of this Bill.
Amendments Nos. 1, 52 and 53 broadly relate to defining an offence of domestic violence, in particular to include controlling or coercive behaviour in such an offence. Senators Norris and Kelleher spoke very eloquently on both amendments and I support both. Indeed, the Labour Party, along with others, put forward amendment No. 52. The CEDAW committee recommended that we introduce a specific definition of domestic violence and the justice committee of the last Government, of which Senator Conway and I were members, recommended a specific offence of domestic violence. Very moving testimonies were given at the committee hearings by survivors of domestic violence and they advocated a specific definition of domestic violence. This would have a practical import but also an impact that is cultural and educational and will change attitudes. It will challenge myths about domestic violence as well as the dismissive attitude towards domestic violence that one still encounters at different levels of society. The tendency to dismissiveness has not been helped by the phrase itself, which has been widely criticised academically. By calling it "domestic violence" it somehow trivialises or de-emphasises the reality of the harm involved. For all of these reasons it is vital that we have a definition and the definition in amendment No. 1 is very helpful, though we would be open to debating how it could be improved upon.
Amendment No. 52 seeks to insert a specific offence of controlling or coercive behaviour in an intimate or family relationship and I am grateful to Safe Ireland for the very considered submission it made on the need for such an amendment to the legislation. Others have spoken about the recently introduced offence in English legislation, in the Serious Crime Act 2015 where the offence of coercive or controlling behaviour, recognised widely as a prevalent and very significant part of domestic violence, came into force 18 months ago. A study by Jane Monckton-Smith of the University of Gloucestershire stated that control was seen in 92% of domestic killings. This is the extreme end of domestic violence and it is often presaged by a culture of control within the relationship.
There was some doubt about how effective the UK legislation would be and whether it would be possible to police and enforce a law against coercive and controlling behaviour but we can be heartened by the prosecution figures from Britain which show that, of 155 defendants prosecuted for coercive control in 2016, 59 were found guilty and 28 sent to prison.
There have been substantive prison sentences handed down in some of these cases, which have been widely reported on, the most well known, probably, being that of the murder of Natalie Hemming, which was the subject of a Channel 4 film. While that was a homicide, it was a case that involved a high level of coercive and controlling behaviour, which, as we know from various studies, is very much a feature of many abusive, violent relationships. It is important that we would seek to introduce by way of this legislation a similar offence in Ireland to deal similarly with this type of controlling or coercive behaviour that falls short of the type of physical assaults currently the subject of most prosecutions under the Non-Fatal Offences Against the Person Act 1997. It is also important that in introducing a definition of domestic violence we include within it a specific reference to controlling and coercive behaviour.
For all of those reasons, the reasons put forward by the NGOs that have worked on the front line in terms of providing help and support for survivors for many years and on the basis of the arguments already put forward by colleagues and likely to be put forward by other colleagues, I ask the Minister to consider these amendments in the round and to come back to us on Report Stage with provisions that might take account of our concerns and address the need for definitions, particularly of domestic violence, as well as of coercive and controlling behaviour.
I thank the Minister for being here again today and for her work on this Bill. I commend Safe Ireland, the National Women's Council, Women's Aid and Barnardos on the great work they have done in making our jobs a little easier. I commend, in particular, the women and children who have experienced domestic violence because without their feeding in of the information and their experiences, the aforementioned organisations would not be able to enable us in what we need to do in terms of this legislation.
Sinn Féin and I support these amendments. I commend all of my colleagues who have put a lot of work into trying to improve this Bill. This is not about changing the Bill but about enhancing it and making it better. Amendment No. 1 in particular is important. It is not meant to be an exhaustive list of the definition of domestic violence. In the absence of training for judges and the judicial and legal systems as a whole, a better definition of domestic violence will give instruction and guidance to ensure better outcomes and justice for women and children experiencing the crime of domestic violence. In all of this, we must be mindful of the crime that it is. If, in terms of this Bill, domestic violence is recognised as a crime and is defined as such, we will have done a service to those women and children.
I am conscious of the time allocated to consideration of the Bill today and the need to have it enacted. As we are speaking and as we heard this earlier in the week women and children are being tortured in their own homes as a result of domestic violence and abuse. Every hour and every day in terms of the passage of this Bill, counts. We need to have it enacted so that it can protect women and children as soon as possible.
I welcome the Minister to the House. I acknowledge the enormous effort and work she has put into this legislation. I am particularly delighted that she is here today to see this Stage of the Bill through the process. As stated by Senator Conway-Walsh, domestic violence is a crime against families and children and their right to innocence. It is a crime against women and, in some case, men. The reality is that there are men suffering domestic violence. I have many of them at my office where they came to share their grief, including that nobody believes them.
When people experiencing domestic violence seek help they do so as a last resort. There is a lack of training or understanding of these matters in the Garda Síochána, which is not altogether its fault. The same applies in respect of the courts. Two weeks ago, a woman and a child appeared before the District Court with no supports and a social worker saying they were telling lies. Why is it that much of the time people do not believe, particularly children? Why is it that 11, 12 and 13 year old boys and girls, who tell of their grief, concern and abuse, are not believed? We must allow children to talk and we must facilitate that engagement. We must listen but we also must believe. I would like to leave here today confident that we have addressed the issue of the need to believe children and people who make complaints. People do not make up stories of abuse. People do not want their relationships to fail: they want their relationships and their family units to succeed. Everyone wants that. That is the place we need to come from in terms of our understanding of this issue.
I acknowledge the Minister's work on the Bill, which consolidates the law on domestic violence into one piece of legislation. It will provide additional protections for victims of domestic violence and, importantly, it will, or should, meet the requirements of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, more commonly known as the Istanbul convention, which is a really important convention. This is about creating safety for women, children and families. I acknowledge the briefing document provided to the Oireachtas by Safe Ireland. It is a very informative document. The agency has taken the time and the trouble to assist us in our legislative work. There is collaboration between the NGOs and other agencies on this issue. People are sharing their personal experiences. It is not easy to do that. It is not easy to share that one's family relationship has broken down. It is not easy for any man, woman or child to say, "I am a victim of crimes in my own home"; "I do not feel safe in my own bed" or "I fear my lover or what was once my lover and companion". That is not easy to do. We need to be there to support people. This Bill attempts to do that. I thank all of the people outside of this Chamber who have suffered and contributed to this Bill and have kept the pressure on over many years to see it enacted.
I support all of these amendments. I thank the Members of Seanad Éireann for the work they have put into this Bill. I refer in this regard to the usual ten or 12 Members who-----
-----research and table amendments, contribute to the debate on them and, importantly, remain in the House to hear the Minister's response. There are many who come in here, chaw-mouth, and leave. The people here now are consistently here on these issues. I acknowledge that they are here to listen and to engage. This is about ensuring we have a better Bill. It is about supporting the Minister and others in the creation of good legislation. I wish the Minister well with the legislation and I thank her for taking the time to be here today.
I join with other speakers in welcoming the Minister to the House and in congratulating her and all of the civil society organisations, including Safe Ireland, the National Women's Council of Ireland, Women's Aid, Barnardos and others, for their work in driving this Bill forward. I believe these amendments will strengthen the Bill and thus deliver the outcome all of those who have put work into it over the years have been seeking.
The crucial amendment is the amendment proposing a definition of "domestic violence". There are more than 36 references to domestic violence in the Bill but no definition of what constitutes domestic violence. The Minister will understand the importance of a clear definition of what constitutes domestic violence.
There is not a common understanding of it in society, within families or across Europe. The Minister signed Ireland up to the Istanbul convention and I know she is eager to move to the next stage of ratification. There can be no doubt that the comprehensive definition of domestic violence in the Bill, which is also a Council of Europe definition, is what we need because it is comprehensive and includes physical, sexual, psychological and economic violence. My colleague spoke about economic violence with regard to adult safeguarding. These are all intertwined areas of control. Many of us have heard examples of that from advocacy organisations. Almost everyone here will know of examples in their own lives involving friends, families or neighbours who have been in abusive relationships, the subtleties of that abuse and its inter-linking aspects.
I note a typographical error has been pointed out. We are very open to working with the Minister on the question of a definition, but it must be based on and enshrine the definition of domestic violence in the Istanbul convention, that is, the Council of Europe convention. It also must include definitions of coercive behaviour and controlling behaviour. That must be spelt out.
In terms of the psychological definition, we acknowledge that the list as we have phrased it is not comprehensive because psychological cruelty can take very innovative forms and we recognise it may need to be expanded. These are to give an example to and plant a question mark in the minds of those supporting those who have experienced domestic violence about the types of activities engaged in, which might seem subtle but are important in terms of harassment within the family and the effect of the threat of violence. I will touch on that when dealing with amendment No. 52.
On the question of definitions, as others have said, it is not necessary to send this signal legislatively. It sends a clear message, educationally and culturally, to those who are enforcing the law but also to the victims of violence in that when they experience something which feels like intimidation and abuse, it is abuse and they are able to look to that. It sends a signal to perpetrators and potential perpetrators and it also sends an important signal across Europe. I represent this House at the Council of Europe and I see that there is a backlash and a push regarding domestic violence. We need to be part of the advance guard that fully supports the Istanbul convention and its definitions. We will be happy to work with the Minister on that aspect.
On amendment No. 52, which the Minister will see has comprehensive support across the House, this amendment takes this a step further, which is to talk of coercive and controlling behaviour as an offence. Its omission is regrettable. Barnardos and almost all of the advocacy groups have spoken about the fact that domestic violence as a specific offence is not included in the legislation. It is a real omission and this proposal in respect of coercive and controlling behaviour is an opportunity to address that.
We know from the Garda Inspectorate reports that even though domestic violence is not recognised as a crime, it is a volume crime. The Garda Inspectorate report describes it as one of the highest volume of incidents which occur and are recorded, even though we now know, as it has emerged in recent years, that they were under-recorded. We know there is a huge volume of incidents of domestic violence and we need to acknowledge that. The Office of the Director of Public Prosecution has expressed its concerns about prosecution but we have seen in the United Kingdom that there have been successful prosecutions. As mentioned by my colleague, there were 59 successful prosecutions, and 125 other cases were taken. Unless we have a crime of controlling and coercive behaviour, we will neither address nor capture domestic violence.
If we look to something like assault, we are literally talking about a tiny part of the picture. For example, as damaging as any assault is the linking of that assault to somebody's experience. I refer to someone who walks around in fear for months because they know that when they engage in normal behaviour such as contacting a family member or talking to their co-workers they may be visited with violence. That threat of violence and control, and the fact that someone might seek to destroy one's relationships with others in a wider circle, is the climate in which an incident of assault takes place and it is very hard to prove. It is known by many domestic violence organisations that many of the forms of assault that take place such as choking, for example, can be extremely difficult to demonstrate and prove. However, a litany of control is something that can be captured and shown. I ask the Minister to consider that this crime is being monitored in the UK and to send a signal to society in respect of it.
Recently, in Russia, we have seen a roll-back whereby effectively, they have decided that violence within the home is acceptable except in the cases of hospitalisation and broken limbs. There is a dynamic happening globally to the effect that abuse within the home can continue and is in a separate space. Unless we are part of the positive dynamic such as we have seen in the UK that says that all forms of abuse within the home will be tackled, taken seriously and treated as a crime, we are lending succour to the negative trend taking place globally and contributing to a dynamic which is seeking to roll back and legitimise violence against women. I urge the Minister to continue with her original intent and renew a commitment to a reference to a crime of domestic violence or specifically controlling and coercive behaviour in this Bill. That would send a valuable signal to women, men and children across Ireland. I look forward to the Minister's response. I hope she will be able to work with us and that we can move forward on this issue.
I thank the Minister for attending the House and for her dedication to the Bill over the course of this Seanad term. I thank also the Women's Council, Women's Aid, Barnardos and Safe Ireland in particular for aiding the Fianna Fáil group in tabling some of its amendments. As many of my colleagues have pointed out, those groups have done a good deal of the hard work on the Bill for which I thank them.
Fianna Fáil supports this Bill to help address the appalling problem of domestic violence and violence against women in all its manifestations. Domestic violence is a deeply traumatising act that demands Government action.
Members who were watching TV on Friday night may have seen the interview with Norah Casey, who bravely outlined her tale of domestic violence. It was thought-provoking and took everyone by surprise. She presents herself as a strong, independent woman. One would never think something like that could happen to her but she was able to outline her story, which was horrific. It is a story to which many of us can relate. We all have a friend who is in a similar situation with a very controlling partner, be it a man or a woman. Getting out of that situation and recognising that the problem exists is very brave. It was very brave of Ms Casey to share her story with us last Friday night. I want to acknowledge that because it hit home.
The Bill aims to improve the protections available for victims of domestic violence. The court process is cumbersome and is the last place a victim of domestic violence wants to go to seek help. Anyone who has been to Dolphin House will know it is very intimidating. The person is kept in a holding cell downstairs where there are crowds of people.
The building leaves a lot to be desired and is not the safe place victims need. The operation of the courts, including the system for listing cases, is in terrible shape. While the Bill does not address these issues, it makes it a little easier for victims by providing a right to be accompanied to court. This will shelter victims a little from the deprivation visible in Dolphin House where people living in Dublin must seek safety and barring orders. The provision allowing victims to give evidence by television link is also very welcome.
Victims of domestic violence who are cohabiting with, or are parents of, the perpetrator will be able to apply for an emergency barring order lasting for eight working days. A person who applies for an emergency barring order will not be required to have a greater or equal interest in the relevant property. Many of these provisions will be discussed in detail and the Fianna Fáil group has tabled a large number of amendments with the support of Safe Ireland. I support the Bill and look forward to the Minister's response to many of the amendments, which have been considered by various groups and are worthy of acceptance.
As previous speakers stated, this is a crucial Bill which should be implemented as quickly as possible to assist the most vulnerable. We see victims of domestic violence in our clinics day in and day out.
The statutory guidelines which judges will take into account when deciding to make an order are crucial, especially with the definition of violence placed in context. The guidelines will help applicants and their representatives to present their case. This means the most vulnerable applicants and their dependent children will be better served by the justice system when they face the risk of serious harm by the perpetrator. It is important that people are able to have someone accompany them to court, particularly where they have young children.
I have been contacted in my clinic by people who have paid €130 for free legal aid. Once they hand over what we describe as a "slip" to a solicitor, they must pay another €130 if they seek a maintenance order within six months. This should not happen in cases where people must go to court again because a partner does not make maintenance payments. I ask the Minister to address this issue.
Almost one in three Irish women - 31% - experience some form of physical violence, while 70% do not contact services, including the police, following violence. We are at the top of the European table in this regard. An awareness campaign is needed in this area. The most vulnerable in society must be made aware of their entitlements and provided with help. There is no women's refuge in Carlow, my local area. This means people seeking refuge in the area are sent to Kilkenny or Waterford, which is unacceptable. Every town should have a refuge for women with young children who are the most vulnerable in society. The barriers facing women in fear of losing their children who do not have money or a place to go and do not want to break up their family cause low self-esteem, depression and feelings of anxiety and guilt. Moreover, women in this position lose confidence.
I recently encountered a woman who broke up with her partner as a result of violence. They had been renting a home for years but because her name was not on the lease she could not obtain a barring order. This issue needs to be addressed in legislation. A woman with small children whose name does not feature on the tenancy agreement cannot secure a barring order against her partner.
Everybody has spoken about how important and serious domestic violence is and it is vital, therefore, that the House pass the Bill as quickly as possible. I thank the Minister for coming to the House.
I welcome the Tánaiste to the House. This is exceptionally important legislation, on which people have worked hard. I echo the point that it always seems to be the same people who do the heavy lifting. I commend the non-governmental organisations which have supported Senators in drawing up amendments. As everyone, including the Tánaiste, will agree, all of the amendments have been tabled with the best of intentions with a view to improving the legislation. Once implemented, the Bill must work in the courts and must, therefore, be legally proofed. This is where the good offices of the Tánaiste and the Attorney General come into their own as it is their duty and responsibility to ensure the legislation stands up to scrutiny.
I was struck by the example of domestic violence cited by Senator Murnane O'Connor involving a couple with small children who were renting a house and one partner's name was not on the lease. This is a practical example of the difficulties people experience. We have a responsibility to close loopholes such as this in a way that protects vulnerable women. In the majority of cases where couples rent a house, the names of both partners will be on the lease. When the name of a woman with small children who is cohabiting but in a violent relationship and clearly lives in a property is not on the lease, it is reasonable to expect the State to provide protection. I have not encountered similar cases. Other speakers made similarly strong points. I encourage the Tánaiste to consider the contributions to this debate and identify how the legislation can be enhanced on foot of all of the concerns expressed by Senators. She must ensure the Bill stands up when, as is unfortunately always the case, it ends up in the courts.
I thank Senators for the hard work they have put into the Bill and the various amendments that have been tabled. I very much respect the spirit in which the amendments have been tabled and look forward to discussing them. My approach is very much one of wanting to work constructively on the Bill. We have a shared goal of strengthening its provisions and ensuring we deal effectively with the crime of domestic violence.
It is not acceptable that anyone should be subject to the type of abuse, fear and intimidation we have heard about. I emphasise that domestic violence is a pernicious evil and much too prevalent. It has devastating physical, emotional and financial consequences for individuals, families and children.
The purpose of the Bill is to consolidate and reform the law on domestic violence to provide better protection for victims. We also wish to enable the country to ratify the Council of Europe's Istanbul Convention. I assure Senators that the Bill, as presented, facilitates this. It also includes important new provisions on emergency barring orders, forced marriage, better protection for victims going to courts, including allowing more support and the use of video. These will make the experience less traumatic, where possible.
Before going into the detail of the amendment, a number of matters have been mentioned by Senators. One of these relates to the fee that obtains. I have already indicated in the Dáil that I have a submission from the Legal Aid Board and that we should remove the fee. I will look at the point Senator Murnane O'Connor made in respect of someone coming back in. The Senator's point is relevant and I will give consideration to it.
Senator Ardagh referred to the conditions in the courts. The position regarding Dolphin House clearly needs to be dealt with. We have a new property at Hammond Lane. The then Minister of State with responsibility for the OPW and current Minister for Health, Deputy Harris, and I did a great deal of work on the matter. The building in Hammond Lane will be the new family law complex. A planning group has commenced work on the project. It will be a terrific facility, with rooms for witnesses and children and much better facilities. This development is absolutely overdue.
I appreciate what Senators are trying to do with their amendments, which seek to provide a definition of "domestic violence" and create a specific offence of coercive control. I want to make an important point on the framing of these amendments. The amendment to section 2, as submitted, is confined to defining domestic violence. That is very important because there is no linking of the definition with any subsequent provision in the Bill. That needs to be looked at. There is no point in having a definition if it is not linked and if there is no implementation that follows from it. I am sure Senators will accept that. If I was to accept the amendment, the effect it would have is not clear because it is not linked with other provisions in the Bill. That is a technical point but one with many implications
Is the Minister prepared to accept the principle of the amendment?
I will get on to that now.
There is also an attempt to capture coercive and controlling behaviours, including those with a psychological element. I have no ideological difficulty with defining domestic violence or creating an offence of coercive control. I have no ideological resistance to that whatever. The key question is will it be effective and is it going to be supportive of victims in the real world, namely, in the courts? That is the question we have to ask and we need to be sure that the answer is "Yes".
I will go through some of the detail with Senators because it is important that I am very comprehensive about this. If the latter proves to be the case, we will achieve the best result. Consideration was given to establishing an offence of domestic violence during the drafting process. We also looked at coercive control. Senators will appreciate from the amendment that what constitutes domestic violence encompasses a very wide currency and spectrum of behaviours. We all recognise that. The question is how does one match that with what happens in the courts in terms of prosecuting these cases. As Senator Norris said, it is extremely difficult to come up with an exhaustive list and, for obvious reasons, we all recognise that. It is a complex issue and the amendment, as proposed, demonstrates how problematic it is to define it in statute. Behaviours in a domestic setting which involve emotional abuse, humiliation and fear, are clearly detrimental and an abuse of the trust associated with an intimate relationship but the key is that effective legislation needs to be enforceable. That is the criterion against which we must measure this. Is it enforceable in the courts? Is it going to make it easier or be helpful in taking these cases?
Many instances of domestic violence take place in private. The difficulties in obtaining evidence of non-physical behaviours and the harm they cause in order to satisfy a criminal standard of proof that is beyond reasonable doubt and secure conviction are obvious. All the agencies represented here today - Safe Ireland, Women's Aid, the National Women's Council and Barnardos - will be very familiar with the problems relating to this issue. The difficulties in securing convictions in respect of relatively simple offences - and I use that term in context - such as assault, could potentially be compounded in the case of an offence of domestic violence. That is something for which we must watch out. When we considered this issue, we had very wide consultations across the criminal justice agencies, by which I mean people with a keen interest in this matter who would be prosecuting in the courts. I will now outline the advice I received.
There is not a gap in the range of offences that can be prosecuted in domestic violence cases, primarily under the Non-Fatal Offences Against the Person Act 1997. Acts of physical violence, such as assault, assault causing harm and sexual violence, are already offences, as is the threat of violence. Non-violent abuse is also captured by the harassment and coercion provisions contained in the 1997 Act. Likewise, causing damage to property, animals and so on is an existing offence. Prosecuting an offence of domestic violence in addition to other existing criminal offences could make prosecutions more complicated and could create a further burden on victims. That is the advice I have from the people taking these cases in the courts and who observe how they are prosecuted now and how they go through the courts. That is their view.
As matters stand, the courts can take into account the fact that such acts took place in a domestic setting when sentencing an offender. Senators will recognise that there are lots of overlaps with existing criminal offences and duplicating offences in the amendment that is being put forward. That is a fact. To summarise, the reason it is not there is because the issue regarding the exhaustive list and the crime of violence and other crimes I mentioned are already captured in legislation and as a result of the concern that proving a crime as complex as that encompassed by the proposed definition would be very onerous. The downside of putting a very complex offence on the Statute Book is that it will not be prosecuted, while assault and the other crimes I mentioned may be prosecuted in a domestic violence context. If the former proved to be the case, a message would be sent out to the effect that the offence of domestic violence would not be prosecuted. That is not what any of us wants because it would be misleading and would not reflect the seriousness of the situation.
I wish to make a few more points on both the overall situation and the international position. Amendment No. 53 would have the effect of moving operational independence in respect of investigations away from An Garda Síochána and into the political arena. It is a long-standing principle that the Minister for Justice and Equality has no role in respect of the conduct of Garda investigations. I ask Senators to consider that because I do not think it would be good to move away from that principle now. We make a point of the Minister for Justice and Equality being separate from operational decision-making regarding investigations and I would be concerned about changing the position in that regard.
In March 2017 the Scottish Government published the Domestic Abuse (Scotland) Bill, which defines abusive behaviour as including psychological abuse. The legislation is still before the Scottish Parliament. There has been an offence of coercive control in the UK since December 2015, as Senator Bacik mentioned. UK media reports from August 2016 indicate that since the offence of coercive control was introduced, there have been more than 22,000 prosecutions for general domestic violence. Recent research has found that since its introduction, 202 people have been charged with the offence of coercive control. Senator Bacik did mention some information in respect of this matter. However, there is little enough available regarding successful prosecutions. The first person convicted of coercive control was jailed in September 2016 and that conviction was in addition to convictions for serious physical assault which led to the victim suffering permanent disability.
That can demonstrate some of the potential difficulties associated with successfully prosecuting such an offence on its own.
What I hope I have done is outline the reasons a particular approach was taken regarding the Bill - the complexities of the definition. I have been struck by what the NGOs and Senators have said. What I would like to suggest is that I take account of the points that have been made here today, that I consult again with the Attorney General and the Parliamentary Counsel, and I examine, if possible, taking account of the points that I have made, if there would be benefit in trying to move forward on the points that have been made by Senators today. I certainly want to make absolutely sure that anything we do, and I think Senators will agree, is in the interests of victims and ensures that we can strengthen the legislation and make it easier, if at all possible, to take prosecutions but, equally, not do anything to damage prosecutions that might be taken under other legislation. I would propose asking Senators that I would have time to examine this matter and come back on Report Stage. That would be my suggestion regarding this matter. I have had a preliminary discussion with the Attorney General on it.
I may have been inadvertently discourteous because I am the only one not to welcome the Minister to the House but it is such a formula. We always welcome all Ministers to the House. I also would like to pay tribute to the various organisations that have so effectively briefed us, which my colleagues also did but I neglected to do so.
I thank the Minister for her temperate and considered approach to the matter. I thank her for showing a desire to co-operate with this House to improve the legislation. She asked whether the amendments will be effective. She raised reasonable doubt about some aspects, for example, the question of proving a situation in court. If it is just hearsay or if it is just the supposed victim of violence saying, "He said this to me" or "He threatened violence" then it is a judgment call. There is no absolute mechanism of proof in that situation. I am not sure if we want to leave that in but, again, it is a matter for the Minister to consider.
She also asked whether the amendments are acceptable to victims. I think they pretty certainly are because these amendments were essentially suggested by the organisations that represent victims. It is fairly unarguable that the victims would support these amendments.
In terms of the definition, I have made the point that it is difficult to be exhaustive. On the other hand, the interpretation section lists definitions for the court, a dependent person, an emergency barring order, the full age, an interim barring order, the Minister, the prohibited degree of relationship, a protection order, a respondent, a safety order, a spouse and welfare. It seems a little bit odd when one defines all of these things that appear fairly obvious to the ordinary person on the street that we baulk at defining what are the central elements of the legislation.
The Istanbul Convention has been mentioned. I would like to put on record Article 33 of the Istanbul Convention which reads, "Parties shall take the necessary legislative or other measures to ensure that the intentional conduct of seriously impairing a person's psychological integrity through coercion or threats is criminalised." The gloss that I got on this matter is that the proposed events of controlling or coercive behaviour drafted in similar terms in the corresponding UK legislation, in section 76 of the Serious Crime Act 2015, would capture the coercive and controlling aspect of the behaviour described in the Article. According to my advice, the existing defence of harassment under section 10 of the Non-Fatal Offences Against the Person Act 1997, as amended, does not capture the controlling or coercion aspect. The Bill presents an opportunity to advance the ratification of the Istanbul Convention by inserting an offence that captures exactly the sort of behaviour identified in the Article.
I would like to refer to a case, and I already did so without naming Natalie Hammond and her partner, Mr. Hemming. I would like to expand on the kind of things that he did. I have already instanced in another case that the heating was switched on and taps were left running. Mr. Hemming refused to put her name on the deeds of their house, which goes directly to the situation referred to by Senator Murnane O'Connor. I am very glad that the Minister has agreed to consider this matter. It does seem wrong that children in this situation simply by a technicality, and one in which there is clear evidence that the partner or whatever one wants to call him, and it is usually a him, refused to put a name on the deeds. That fact let him out of the situation. He also monitored her mail, scrutinised her bank statements and tampered with her phone. That is pretty ghastly behaviour. Unsurprisingly, the judge at the trial described Mr. Hemming as overbearing, controlling and jealous.
Senator Bacik referred to a study of 358 domestic homicide reviews conducted by Dr. Jane Monckton-Smith that showed control was seen in 92% of domestic killings. That proves how important the question of control and coercion is. It is not just the battering. The control is part of the environment that facilitates the battering and it is almost always present. Control is something that must be addressed. The study showed there was obsession in 94% of cases and isolation from family and friends in 78% of cases. The following statement made by Dr. Monckton-Smith must be taken into consideration by this House. She said that the British Government brought in legislation, "because coercive control is really dangerous to women and children, not just because it’s unpleasant." It is not just something that is nasty and we say, "Oh God, that is dreadful." It is actually dangerous to women. I am very glad that the Minister has agreed to consider these situations and to come back to us on Report Stage and shows the potential for a good day's work in the Seanad.
I recognise that the Minister is willing to work on amendment No. 1 that seeks to insert a definition for domestic violence in the Bill and that it is applied to the whole Bill. We are happy to work with the Minister on this matter for Report Stage.
I am concerned somewhat by the message given by the Minister about viewing coercive crime as a crime. We have talked about the type of messages that we send out from here. I am very concerned that a message has been sent that this matter is too complicated. Many of us know people who are or have been in abusive relationships. Therefore, we know how difficult it is to leave such relationships due to the network of control, psychological oppression and the doubt that is planted in the victim's brain. One of the messages that one gets from victims is that when they try to extract themselves from an abusive, coercive or controlling relationship, it is complicated. We reinforce the message that this matter is too complicated, that it is a matter just for the two people involved and that society has no interest because it is so complicated if we simply say it is too complicated for the courts. How the hell is anybody meant to get out of a relationship when he or she knows that society considers what a victim is experiencing to be too complicated for our laws and procedures to take on? I believe it is straightforward. Good work has been done elsewhere. There are practices and behaviours that are wrong and abusive. Such practices and behaviours need to be identified and named. The fact that the list may expand does not stop us from identifying the behaviours that exist now. We must identify them as wrong and ensure that they can be reflected in our courts.
As Senator Norris has very adequately said, if we are ratifying the Istanbul Convention we need to engage and deal with coercive behaviour. It shows how silent and invisible this issue has been that we are told that there is not a gap and I strongly disagree with this. To say that there is not a gap, to say that physical and sexual violence and the threat of violence and harassment adequately cover the behaviours we have heard about today, all of those subtle behaviours: the question of isolation; the destruction of relationships; the monitoring - these do not fit the normal threat of violence and harassment-----
Senator Higgins, I am sorry for interrupting you but as per the order of the House it is now 2 p.m. Could I ask you to move the adjournment of the debate please.
Do we have to adjourn it?
Apologies. We will come back to this, I am sure. Yes, I can move the adjournment of the debate and look forward to its resumption and to constructive engagement in between.
Thank you Senator Higgins, thank you colleagues.