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Family Violence Notes

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Family Violence Revision

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5: FAMILY VIOLENCE (i) DEFINING DOMESTIC VIOLENCE YEMSHAW V HOUNSLOW LONODN BOROUGH COUNCIL 2011 SC FACTS
 Y was married and had two child and claimed she was facing emotional, psychological and financial abuse at the hands of her husband (*no physical violence)
 Y applied to the Houslow Housing Authority, arguing she had been forced from her matrimonial home as a result of abuse but because of the lack of physical violence (and its probability), the Housing Authority rejected the argument that the case involved domestic violence, holding that it was reasonable for her to occupy the matrimonial home and therefore the Authority was under no obligation to rehouse her: o Under the Act, a person could be treated as homeless, even if they had a house if it was not reasonable for them to live there and the Act states it won't be reasonable for the person to live there if it is proable that this will lead to domestic violence
 Y seeking judicial review, arguing the definition of 'domestic violence' should not be confined to physical acts of violence only
 CA following Danesh held that violence included physical assaults only (cf. threats of violence or other forms of abusive behaviour)
 Appeal to SC ISSUE
 Should the definition of domestic violence be confined to physical violence?
REASONIN
 Physical violence is an example of violence, but does not G (LADY constitute the only form of violence HALE)
 Citing the dictionary and reports/documents from a wide range of bodies which did not restrict the concept of domestic violence to physical attacks
 Important for housing and family law to take a similar approach to domestic violence to ensure an integrated approach and as the remedies for domestic violence in the FLA included conduct broader than physical violence, makes sense for housing law to take a broad interpretation
 Although at the time of drafting, P would have had an old fashioned understanding of domestic violence (restrict to the physical), P unable to fix the meaning of violence and a wider meaning was justified under the broader statutory purpose of ensuring a person is not forced to remain living in a home where they will be at risk of harm
 The new definition: 'includes physical violence, threatening or intimidating behaviour and any other form of abuse which directly or indirectly may give rise to the risk of violence' REASONIN
 Agreed with Hale, emphasizing the severity of psychological G (LORD harm but insisted that the conduct must be deliberate to fall within the RODGER) definition REASONIN
 Did not dissent but less happy with the approach being taken, G (LORD placing weight on the legislative history of the Act which clearly BROWN) indicated that only physical violence was to be included in the concept of domestic violence
 Believed as a policy issue, the imperative to re-house victims of physical violence was stronger than where there was no physical violence (ie. a lack of the same urgency to rehouse where no physical violence involved)

DECISION

CE

IMPORTAN

 Decision remitted to Housing Authority to determine whether they were under an obligation to rehouse H on the basis of the new definition of domestic violence
 Definition of domestic violence not to be confined to acts of physical violence

Madden Dempsey: what counts as DV - a conceptual analysis Summary:
MD critiques four influential accounts of domestic violence and instead presents an analysis of DV as either strong or weak, centering around three keys elements
 violence, domesticity and structural inequality
 She develops an explanatory model of DV based on these elements Introduction
 The legal academic literature has failed to employ insights developed in the sociological literature to examine the underlying conceptual question of what counts as DV = regrettable failure
 The aim of the article is to set forth a clearly developed conceptual analysis of DV in order to bring clarity to the existing legal debates
 Underlying approach of the article is the idea that DV offenses call for a distinct conceptual analysis and the article provides a moral map that can in part guide the exercise of criminal justice policy in DV cases Three elements of DV: violence, domesticity, structural inequality
  1. Violence: o Many accounts of violence incorporate some strong notion of illegitimacy into the meaning of violence and some go so far as to equate all violence with normative illegitimacy = legitimist accounts conceive of violence as illegitimate by definition and adopt a narrow conception of what counts as violence, typically restricting focus to the use of direct, physical force o MD rejects traditional legitimist accounts but uses the concept of illegitimacy to further analysis, by dividing categories of action into legitimate and illegitimate
 Aims to specify the normative system which is invoked by relying on the legitimacy concept  the normative system invoked is that of morality
 When an act is described as legitimate or illegitimate, it is used in the sense that it is morally legitimate/illegitimate o Structuralist accounts: conceive of all violence as illegitimate by definition and adopt a broad view of what counts as violence, including the direct, physical use of force as well as the existence of structural inequalities (structural violence)
 Rejects structuralist accounts but further the analysis of DV by using the concept of structural inequality as a necessary element of DV in the strong sense o A critique of legitimist accounts:
 Rejects the first premise of legitimist accounts which claim all violence is normatively illegitimate
 The first problem arises when legitimist accounts attempt to identify what counts as violence as an empirical matter based on their understanding of violence as a normatively illegitimate matter
 Working from the normative to the empirical obscures important ways in which the concept of violence actually functions in the English language (ie. The question of normative legitimacy is often understood as a distinct issue from the violence itself - SD - can commit a violent but legitimate act)
 Conversely, beginning with the normative assessment and using that to control the empirical assessment prevents an understanding of the act of shooting and killing a person as violent

The legitimist accounts inability to conceptualise such an act as violent renders these accounts useless in understanding the concept of violence in the way it is used in the CJS
 The second problem arises when these accounts attempt to identify what counts as violence as a normative illegitimate matter based on their understanding of violence as an empirical matter
 The accounts therefore ignore the fundamental normative question of whether a certain act, described empirically, should be considered normatively illegitimate
 MD rejects the second premise of these accounts which claim all structural inequalities are violence
 Little is gained from conflating these concepts because they are distinct and are used distinctly in the CJS
 A proposed non-legitimist, narrow account of violence: o Article proposes that violence can be best understood as a non-legitimist, narrow account  creates a conceptual space in which to understand that violence can be either legitimate or illegitimate and it also adopts a narrow view of what counts, focusing on the direct, physical use of force o This account includes both legitimate and illegitimate violence - violence is a prima facie wrong, the doing of which can be justified all things considered o MD's account conceives of violence narrowly, as the direct, physical use of force but the word physical is not meant to suggest a requirement that violent acts result in injury or damage - a violent act does not need to cause injury or damage and force is used to mean the exertion fo energy or strength upon an object o Violence is also distinguished from abuse - the concept of abuse includes violent and nonviolent abuse - there is a category of nonabusive violence
  2. Domesticity: o Domesticity = the quality or state of being domestic or possessing a domestic character o Two common ways of characterizing domestic and nondomestic violence:
 1. By location  but more recently with increasing CJ intervention, the historical conception of DV as a private matter has been eroded but location may still have symbolic significance (ie. The home signifies a pace of comfort, safety and protection) and when violence occurs in the home, a moral opposition between home as danger and home as protection results and home based violence is the symbolic antithesis of safety and security in the home
 2. By relationship  parties typically have a pre-existing domestic relationship and this carries strong connotations of privacy and also there is special symbolism of physical affection being contrasted with physical violence
  3. Structural inequality: (*might be open to the argument that there might be other forms of structural disadvantage that might be reflected in the relp
- not just patriarchy eg. In same sex couples) o Social inequalities  when social structures sustain or perpetuate the uneven distribution of social power o Constitute prima facie wrongs but have the potential to be rendered justifiable but MD believes most (if not all) structural inequalities are unjustifiable o Two key concepts = power and control o Looking over time  the structure of the relp is unequal An explanatory model of DV, using the 3 elements:
 The model consists of four spheres reflecting the three elements and a fourth sphere which cuts across all three to delineate acts that are legitimate from illegitimate (the sphere of moral illegitimacy)
 The model identifies 13 distinct conceptual categories of action of or relating to DV and attempts to draw distinctions that correspond to empirical and objective

morality and the framework can be used to explain and critique rival accounts of DV
 Important categories: o DV IN THE STRONG SENSE  violent acts occurring in a domestic context that tend to sustain or perpetuate structural inequality and are all things considered illegitimate o DV IN THE WEAK SENSE  violent acts occurring in a domestic context that do not sustain or perpetuate structural inequality but are all things considered illegitimate
 EG. A slap by a woman on her male partner's cheek to convey offense and the actions of a DV victim in its strong sense who engages in violent retaliation of his or her abuser Four accounts of DV:
 1. The violence account: o This is the most influential account and it emphasizes the importance of the violence element o Structural inequality is not a necessary element and instead this account often views DV only in terms of violence and domesticity and emphasizes the relevance of physical harm o This account is unsatisfying because it does not make the distinction between strong and weak DV  taking DV seriously under this account amounts to treating DV similarly to generic violence o This account has been criticized by feminist advocates for failing to consider structural inequality (eg. Consider what happens when there is a dual arrest)
 2. The domestic account: o Most influential account of DV in social science academic literature  focuses on the use of the Conflict Tactics Scale (CTS) o Emphasises the role of the domestic relationship as the crucial element in understanding what counts as DV but it is unsatisfying bc it treats structural inequality as superfluous to understanding what counts as DV o DV is understood as arising out of symmetrical interpersonal conflicts that the parties dysfunctionally attempt to resolve through using violence but the method of research fails to ask questions that might provide relevant data upon which to evaluate the normative legitimacy of the acts o The CTS' tick the box approach excludes empirical evidence for example of asymmetrical power relations that might facilitate normative distinctions in deciding whether the act counts as DV o The CTS lumps together violence in a domestic context which might be considered legitimate with illegitimate violence in a domestic context which conflicts with common usage and suggests a fundamental inconsistency between theory and method - in theory this account adopts a legitimist account of DV but the CTS fails to operationalize this theoretical distinction between illegitimate and legitimate acts and the method is therefore measuring a much wider phenomenon than that which they theorise = problematic
 3. Structural inequality account: o This theory does consider structural inequality but in this account, structural inequality is a necessary element in determining what counts as DV and all violent acts occurring in a domestic setting must sustain or perpetuate a structural inequality to be considered DV = unsatisfying because it leaves out DV in its weak sense o Under most versions of this account, patriarchy is the primary concern and is considered illegitimate in all forms o Proponents of the patriarchal structural inequality account have been criticized for discounting the relevant of other forms of structural inequality
 4. Johnson's account o Radically new approach to DV in empirical research and his primary motivation was to divide DV into 2 distinct concepts:
 1. Patriarchal terrorism/intimate terrorism

o o

o

o o

o

o o

 2. Common couple violence/situational couple violence The key to this approach lies in a methodological critique of the selection bias affecting the empirical research conducted by proponents of other accounts Research subjects in studies conducted by proponents of the structural inequality account are typically drawn from women's shelters/refuges, police reports and court cases and the bias inherent in such sampling techniques has given rise to criticism levied by proponents of the domestic account who in turn claim that their random sampling techniques are free from bias Johnson explains that domestic account's samples are equally biased, because proponents of the domestic account don't in fact interview random samples but interview those who do not refuse to be interviewed and with refusal rates of up to 40% the domestic account's sampling technique systematically excludes large populations among whom power and control may be most pronounced Johnson hypothesis that each type of research is best understood as a measure of different types of DV The first type (patriarchal/intimate terrorism) is measured by research based on a structural inequality account of DV:
 Overwhelmingly committed by men against women
 Appears motivated by men's desire to achieve power and control
 Usually a clear distinction between victim and nonvictim
 Violence tends to escalate over time The second type (situational couple violence) is measured by domestic account research:
 Committed by men and women in roughly equa numbers
 Appears motivated by a desire to get ones way in a particular conflict within a relationship where there is not a general pattern of power and control
 The distinction between victim and nonvictim breaks down
 The violence is intermittent and de-escalates over time Intimate terrorism corresponds to DV IN THE STRONG SENCE and situational violence corresponds to DV IN THE WEAK SENSE BUT MD's account goes further because it examines the underlying conceptual elements that inform the relevant distinctions - violence, domesticity and structural inequality

Reece: feminist anti-violence discourse as regulation Summary:
 Reece wants to examine how feminists respond when non-feminists make use of wide definitions of domestic violence
 Reece argues that the feminist perspective of violence against women has to construct a particular definition of domestic violence
 She is looking particularly at the response of violence against women researchers to the family violence researchers claim that domestic violence is symmetrical

Introduction:
 The dissent feminists are those who argue that the feminist anti-violence discourse has evolved into a highly effective means of regulating human relationships and their warning is that rhetoric against violence leads to a distrust of informality and intimacy in human interactions
 Although there is a popular tendency to attribute the regulatory impetus of antiviolence discourse to the wide definitions of violence predominant in the discourse, Reece argues this is at most part of the picture Wide definitions of violence as regulation
 A body of literature has emerged from the US that argues that the feminist promotion of expansive understandings of violence has evolved into a highly effective means of regulating human relationships = dissident feminism o Regulation of potential perpetrators  eg. In the sexual harassment context by undermining formal rights and freedoms and freedom of speech o Regulation of potential victims  impress a sense of fear and danger, portraying women and passive, powerless and infantilised
 Dissident feminists stress the impact contemporary interpretations of violence have had on human interaction and argue that the emphasis on eliminating discomfort and offence have demanded a near total absence of unpleasantness, requiring hypersensitivity and hyper-vigilance
 They argue this has resulted in barriers being erected, so that people keep each other at a distance  through these barriers, behavior is transformed
 It was inevitable that wide interpretations of violence would prove useful to other constituencies, including those with aims and goals directly antithetical to the aims and goals of the inventors and instigators of wide definitions of violence and as a result, they are critical of non-feminists who use wide definitions of violence to serve non-feminist ends The gender symmetry debate:
 The debate is over whether domestic violence is symmetrical (ie. Equally perpetrated by men and women)
 DV research is commonly divided into 2 distinct approaches: o Family violence approach = FV o Violence against women approach = VAW (*broadly associated with the feminist perspective)
 FV researchers have consistently made findings of gender symmetry in relation to FV, findings which flatly contradict the most basic tenet of a feminist approach to DV - that DV is a highly gendered phenomenon
FAW researchers in critiquing this symmetry claim have tended to focus on the methodology of the research techniques used by FV researchers  the conflict tactic scales o The usual scoring method adopted in studies is that it is only necessary for a man or woman to have committed one act to be classified as violent which means that a woman who has committed one trivial act is equated with a man who has committed several serious acts of a different nature o This sets a puzzle for the FAW researchers, who are seen as being hampered by their own expansive definitions of DV in being able to criticize the deifnitions adopted by FV researchers o They also struggle in going against the position developed by Kelly and commonly adopted by FAW researches that is it wrong to create a hierarchy of abuse based on seriousness o In criticizing the conflict tactic scales, they have moved beyond arguing that the method employs overly broad definitions of violence  they now argue that this body of research conflates physical and sexual acts with nonphysical abusive acts, which should be differentiated o BUT this conflation is also present with FAW research o SO the standard criticism made is not that there are overly wide definitions of DV employed but that FV RESEARCH IS INSENSITIVE TO CONTEXT - it

concentrates on narrowly discretr acts and de-contextualises acts where distinctions need to be drawn o VAW researchers believe violent acts need to be studied within the wider context of the intimate relationship Violence in context: VAW research and the importance of studying violence within the context of the intimate relationship
 VAW researches believe research should place DV in an entire social context - the context of wider power relations, the content of which is gendered power imabalances
 They argue the findings from FV research need to be situated within a framework that recognizes heterosexual relationships as sites of struggle between the exercise and acceptance of male power
 VAW researches argue that studying violence within the context of an intimate relationship means studying violence in the context of a relationship of domination; in the context of patriarchy
 VAW research conceptualizes DV as a form of domination and control, with physical violence characterized as merely one tactic embedded among many tactics, all integral to a systematic pattern of power and control
 The specific embodiment of context that VAW researchers believe is missing from FV research is the cluster of control tactics
 There is no doubt that DV can only be understood by recognizing that it does take place in the context of women's inequality and that women's oppression and DV are intimately intertwined
 However, when contemporary VAW researchers maintain that violence must be studied in the context of patriarchy, they are not exploring the connection between the concepts of violence and patriarchy but rather are collapsing the concepts of violence and patriarchy
 They regard the cluster of control tactics as at least as harmful as physical or sexual violence and it is important for them not to become overly focused on physical or sexual acts that are seen as at most part of an overall pattern of control
 They view control tactics either as a defining feature of or at least a clear species of DV Consequences of violence in context
 The VAW approach to DV represents a remarkable downplaying of the physical 
this downplaying reaches its zenith when VAW researchers choose not to count acts of physical or sexual violence as DV unless they are accompanied by the appropriate cluster of control tactics
 The non-physical is treated as profoundly more important than the physical because it both sets the context for and determines the meaning of the physical
 VAW researchers have made the relatively modest converse claim that control tactics are generally associated with men's physical and sexual violence against women and are not generally associated with women's violence against men
 The statement that DV is not violence unless it is associated with a wider cluster of control tactics is definitional and therefore unchallengeable by empirical evidence
 Making the presence of control tactics an essential component of DV becomes more and less significance once we realize that employing control tactics just is what men do to women, and not what women do to men
 For some VAW researchers it is not a matter of empirically investigating whether or not a man questions his female partner's activities or criticizes her family or friends  this is instead just what men do
 Conversely, because women do not use control tactics against men, when women do commit acts of physical or sexual violence against men, they do not count as DV
 Women's acts of violence against men just do not have the same meaning as men's acts of violence against women
 DV is thus defined as what men do to women, and not what women do to men
 This is the only way that VAW researched can hold on to all of their tenets =

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