KEY POINTS:
A report on domestic violence released by the Ministry of Women's Affairs this week deserves the attention of lawmakers and enforcers. Unusually, the report is not a study of statistics, it is a story of real lives, illustrating deficiencies in the law and the policing of it. The
fact that the present law was set as recently as 1995, following an equally powerful report on the subject for the ministry, shows how difficult it is to prosecute domestic brutality and protect its victims.
The principal method of protection, a court order served on the violent partner, is plainly not working. In most of the cases studied, the women had obtained a protection order only to have it breached, often repetitively, and breaches did not necessarily result in an arrest and charge. Little wonder the number of domestic protection orders is declining and victims are wary of seeking them.
Exactly the same trend was noticed 15 years ago and the Domestic Violence Act 1995 was enacted to deal with it. Section 50 stated that offenders who breach a protection order "shall" be arrested "except in exceptional circumstances". It is hard to see anything exceptional in most of the breaches that went unpunished. When police were asked to explain their tendency not to enforce the orders they point to some district court rulings, notably a case in Palmerston North in 1996.
In that case the judge dismissed two charges of breaching a protection order holding that the arresting officer had failed to take account of factors the act says must be considered in a decision to arrest without a warrant. The factors are: the safety of the protected person, the seriousness of the alleged breach, the time since the alleged breach and effect on other persons of making the arrest.
The report recommends these considerations be removed from the act and replaced by a clause requiring an automatic arrest for breach of an order. But the consequence of that might be that orders are not as comprehensive as they have been. They may no longer forbid any attempt to communicate with the victim, for example.
The ministry's researchers criticise police for a tendency to discount "psychological violence" such as phone calls or text messages. These studies often discredit themselves with too wide a definition of violence. Phone calls, text messages and the like may be unwelcome and be regarded as harassment but they are not violence. If the messages threaten violence in any way, police can act under the Crimes Act and should. But they must retain some discretion when asked to arrest someone for an alleged phone call.
Police training needs to ensure that when women say they feel threatened by a "technical" breach of a protection order, the woman receives the benefit of the doubt. Few women in these circumstances ever take action lightly; their tendency is rather to suffer in silence and be endlessly ready to believe a violent man might reform.
Reports on domestic violence invariably bring a protest from a small group of men who claim that women and judges have conspired to deprive them of their children. They will be aggrieved that this report wants the law clarified to ensure women cannot be arrested for using violence in self-defence. But there is all the difference in the world.
Domestic disputes may defy impartial adjudication but when they descend to violence there can be only one culprit. No matter the provocation, a man worthy of the name never assaults a woman. The solution is as simple as that. Boys should be brought up to know it, and the law should never let them forget it.
