Domestic violence victims can seek a range of orders under the Domestic Violence Act 1996 which, it is hoped, give additional protection from violence. Like all family law cases in Ireland, domestic violence applications are held in camera and the public is excluded from the courtroom. However, if a domestic violence order is breached, a criminal prosecution is brought and held in public. Anyone can attend the hearing and the media can report on it. After years of this unacceptable position being tolerated, it appears that situation will change.
I can find no policy justification for the existing law and it appears to be a loophole: no-one thought to say, by the way, if an order is breached the prosecution should take place in camera. Because of the risk of publicity, it is unsurprising that victims of domestic violence often do not wish to appear as a witness for the prosecution. In a worst case scenario, the very mention of potential media publicity can discourage a victim from even seeking an order in the first place.
It is entirely unsatisfactory for victims of domestic violence to be put in the position where they will not participate in a prosecution or report a breach due to fear of adverse publicity. Publicity does not only affect the victim but also children, who are often involved in episodes of domestic violence. Even if they are not involved the victim is likely to be conscious that the children may be old enough to learn of case reports in the local paper. Victims, rightly or wrongly, may still wish to protect an abuser’s reputation for the good of the wider family and the publicity involved in prosecutions will discourage them from reporting a breach or appearing as a witness.
Despite the fact that newspapers can report breach prosecutions, reports rarely appear. I don’t have statistics on prosecutions, but they seem to result from only a small fraction of the number of domestic violence orders granted. It is hard to avoid concluding that the risk of publicity is a factor. I recently reviewed the available statistics on domestic violence orders since 2001 and was struck by the following:
- from 2001 to 2010 there was a decrease of approx 24% in numbers applying for orders under the 1996 Act;
- the greatest reduction in applications was for barring and interim barring orders, down approx 39% and 54% respectively.
The 2011 annual report of the Courts Service shows an increase in applications for domestic violence orders in that year as compared with 2010 but the overall trend over the past 10 years has been downward. There may be many reasons for the dramatic decline in applications under the 1996 Act but the reluctance to prosecute breaches must be having a knock-on effect on the willingness of victims to go to court for an order in the first place.
In August, I wrote to the Minister for Justice asking if this loophole would be closed. Today I received a reply: it will.
[The 2010-2014 National Strategy on Domestic, Sexual and Gender-based Violence National Strategy] addresses the improvement of legislative provisions to protect victims of domestic violence. Among the proposed improvements is an amendment to s.17 of the Domestic Violence Act 1996 to provide for the anonymity of parties to proceedings for breaches of orders made under the Act. The proposed amendment is expected to be included in a Criminal Justice (Miscellaneous Provisions) Bill which is presently with the Attorney General’s Office.
The National Strategy mentioned improvements to domestic violence legislation, as did the Fine Gael manifesto and the Programme for Government, but neither explicitly refer to closing the publicity loophole.
It is good news that the Government is now doing so.
A Clatter of the Law 
That is excellent news, it was a ridiculous situation and one that was always very difficult to explain to the victims. Our local journalists usually exercised discretion and on occasion the judge would ask them to leave or remind them of the sensitive nature of the proceedings, but I had one applicant very upset when a local paper printed not just the facts of the breach hearing but also of the events that lead to it and some very personal information about her teenage daughter, all relevant to the breach hearing but awful to read beside the local news.
Absolutely. The local paper here (Limerick Leader) is also sensitive although I believe their policy was that they anonymised if asked. Following on from complaints from local domestic violence supports they’ve changed the policy further and I think the default is not to identify now. While I can understand judges directing no publication or no names etc., as things stand they have no power to do so.
Great news indeed. Victims are traumatised enough on making initial complaint without the stress of being informed a breach hearing is to be public. A good development. Surprised by dramatic reduction in Barring orders / interim orders though .. Womens aid etc would lead one to believe it is the opposite.
One wonders if the publication of identities is the biggest deterrent to taking court action.
Perhaps there are other more immediate reasons; economic, child-welfare and personal-safety considerations.
I wouldn’t argue it is the biggest deterrent but it’s certainly a core one. There are always other reasons although legal aid is available for domestic violence applications on an emergency basis. A number of organisations offer refuges (eg. Adapt House in Limerick) and so child welfare and personal safety concerns can be helped in that manner.
If anything, economic, child welfare and personal safety concerns should motivate court action rather than deter. Many people in a domestic violence situation may be unwilling to take court action or unwilling to admit that it’s necessary. At the very least, victims should use the services that are there (legal aid, local support groups, HSE, etc.), whether or not they progress to court.
@Rossa Those services (Such as Adept House or Edel House in Cork) are so grossly underfunded and already overstretched, they turn away women and children in need. A lot of these families in crisis do not have the fiscal resources and/or family support to find an alternate way through. The women and men involved are often so psychologically traumatized they do not often have the mental strength to find out what services they can access if they have already met one brick wall. The closing of the breaches loophole is a definite step in the right direction. But I would suggest that state responses across the disciplines are still woefully lacking.
That is without doubt.
Boom or Bust, it seems that such deserving services are condemned to draw the short straw. No votes in personal suffering?