Friday, 9 January 2009

What about teh menz?

Cross posted

The Domestic Violence (Enhancing Safety) Bill is open for submissions, and as is usual, the bill has been reviewed to assess consistency with the Bill of Rights Act .

The bill proposes a significant increase in police powers. Specifically, police will be able to issue orders to force an alleged offender to leave the home (remember, this is a domestic violence bill) for up to five days. In effect, it's a temporary eviction order.

Idiot / Savant is upset about the increase in police powers. He thinks they already have enough power to deal with domestic violence, via their capacity to arrest alleged offenders, and that given the history of police in New Zealand as heavy-handed, it's a dangerous extension to their powers to punish people, and a serious infringement of the fundamental human right to due process.

The thing is, there's another set of human rights that comes into play here, and that's the right to live without suffering violence and without fear of violence. I/S points out that we need to balance up the right to due process against the right to live without violence. He comes down on the side of due process. I come down on the side of the right to live without violence. I don't think this is an unreasonable extension of police powers, and nor do I think that it will significantly erode the right to due process.

It's worth taking a step back, and thinking about why we might want to give police these powers i.e. the power to remove people from their homes. More than just a step back - let's take a look over the Tasman, at the Tasmanian "Safe at Home" initiative.

The idea behind "Safe at Home" is that women and children should be safe in their own homes. When women and children are forced to leave their homes, due to domestic violence, then the wrong people suffer. If anyone should be required to leave home, in order to keep women and children safe, then it should be the person who is perpetrating the violence.

Under the Safe at Home intiative, Tasmanian police officers have the power to issue orders removing alleged perpetrators from homes for up to 12 months. The orders can be appealed and revised, through a standard appeals process. A similar regime is in place in Western Australia, whereby perpetrators can be removed for up to 3 days.

Okay.... let's start the countdown. How long before someone makes a comment to the effect of "But men are victims of domestic violence too? What about TEH MENZ?!!!"

First up, the Tasmanian and Western Australian legislation talks about alleged perpetrators without being gender specific. Nevertheless, it's clear that the legislation and the various measures that may be taken are aimed at men. That's because research shows that
href="">more domestic violence is perpetrated by men against women and children

Study members were asked in separate questions about their mothers being “hit or hurt”, or threatened and then their fathers “hit or hurt” or threatened by the other partner. Of the 236 exposed to violence, 171 (73%) reported mothers being threatened, and 158 (67%) reported mothers being physically assaulted by the male partner.

One-third (33%) of those exposed to violence reported threats to the father, and 29% reported that the father was physically assaulted by the female partner. Altogether, 39 (16%) of the exposed group reported violence by the mother only, 67 (28%) by both partners, and 130 (55%) by the father only. When physical assaults only were considered, 23/181 (13%) were by women alone, 46 (25%) involved both, and 112 (62%) were by men only.

(That's from an article in the New Zealand Medical Journal reporting on results from the Dunedin Multidisciplinary Health and Development Study. That's the study where they are follwoing a very large cohort of Dunedin children from birth onwards. If you don't regard that as a reliable source, then clearly we are just not even on the same planet.)

Second, I don't like the idea of a 12 month exclusion either. That strikes me as far too long, creating a serious problem for the man removed from his place of residence. There's a review of the Tasmanian legislation going on right now and an early report has identified the length of time for which orders may be issued as being problematic (PDF here).

However, that doesn't mean that all exclusion periods are necessarily bad. It just means that you need to have a careful think about how long any exclusion period should be, and what structures you need to put in place to make sure that they work effectively.

I think the exclusion period needs to be 72 hours. That's just enough time to cover a Friday night eviction being appealed in a court on the following Monday morning. That seems to me to be reasonable.

That means that there need to be properly resourced courts to hear appeals very, very quickly. In other words, this is a "money where your mouth is" moment for the National government that introduced the bill. If they are serious about protecting women and children, then they need to put in place measures that will enable these protection orders to work effectively. And that means resourcing courts properly. There will almost certainly need to be easy access to legal assistance for men who have been removed from their homes, and for women who are trying to ensure that they and their children are safe.

Then there needs to be a place for the men to go to, somewhere that is not a prison cell. I/S has suggested that police have all the powers they already need, in the power of arrest. But that means an alleged perpetrator ends up in a cell, which seems to me to be far more of an infringement against due process than being told to stay away from your place of residence for up to 72 hours. So this is another resourcing issue: police officers who issue restraining orders need to ensure that the man who is removed has somewhere to go to, and if necessary, they need to find accommodation for him. If that means putting a man up in a motel for 3 nights, then so be it. Better to do this, than to have a violent person hanging around a house where vulnerable women and children are living.

It's a balance thing. Absolutely, being removed from your home is an infringement against your rights. But we infringe against rights all the time, in the elaborate system of compromises that makes up our political state. Equally, living in fear of violence infringes against human rights. And I do like to think of women as being human beings, and so entitled to human rights after all, even if, as Catharine MacKinnon argues, all the evidence suggests that no one takes human rights for women very seriously at all.

So I support the move to introduce police orders that exclude perpetrators of domestic violence from their homes, although I think the period of exclusion should not exceed 72 hours. I think that forcing the victims to leave means that the wrong people suffer. And although the perpetrator's rights will be compromised, there are ways to minimise the disruption. And wouldn't it be nice, if just for once, women could be counted as human.


Hugh said...
This comment has been removed by the author.
muerk said...

Well said, I agree. Whilst I see I/S point, I think it's outweighed by women and children (and the odd guy) having a safe home. I think practical protection is more important than due process.

Why should kids have to pack up and leave their homes because of the violence done by an adult?

David said...

The police already have enough power is these situations. IMO this legislation is window dressing and as such will achieve little very good and will allow for further injustice and abuse of power.

Anonymous said...

With the caveats that you're talking about it makes a lot more sense. As stated it's quite problematic - there's not even a requirement to make sure the the supposed offender is dressed, let alone that they have what they need to survive for five days. While I'm sure that the p*lice would always be reasonable and never overstep the boundaries, let alone make incorrect assumptions, I'd still rather have some formal safeguards. I'd hate to see someone kicked out then promptly arrested for vagrancy...

Even the stats you give suggest that 20% or so of cases could be the woman getting the boot, but my rough reading of the stats here doesn't show that proportion of arrests, let alone convictions.

Muerk, "practical protection" is more often the result of due process than the contrary, at least when it comes to restraining the PTB. Blue meanie notwithstanding, people who spend a lot of time associating with criminals generally develop a skewed view of humanity. Like you, they assume that women are always victims and need to be protected, regardless of the actual situation. Talk to the local women's shelter about their problems with violent women and the protocols they have as a result...

Kicking the kids out is actually something I think needs to be regarded much more seriously. Right now way too much "family law" results in kids losing their home for the convenience of their parents, and that sucks. I've read recently of a few cases where the parents have agreed that the kids stay put when the couple break up, and the shared custody involves the parents shuttling between the kids home and whatever other accommodation the parents have. That makes much sense to me, at least in more amicable breakups. Even in tense ones, listening to the kids and letting them decide if they can is a much better idea than leaving them to pick up the bits after all the decisions have been made.


Anonymous said...

Oh, and "enough powers"... not really. The plod are often reluctant to arrest because people get out of that quite fast and they don't have a lot of accommodation available. So they tend to priorities... violent drug addicts first sort of thing.


Idiot/Savant said...

I/S has suggested that police have all the powers they already need, in the power of arrest.

And more importantly, the power to prosecute offenders. Which ought to be what they're aiming at, right?

Current practice apparently is that they arrest people and then do not charge them. That is a gross abuse of process, and one for which individual police officers should be held responsible (the chances of that being, oh, about as high as the chances of their implementing the rcommendations of the Bazeley report into police misconduct).

As for the policy framework, I can see why a "cooling off" period is desirable and likely to be effective, and limiting people's movements is less of an infringement of liberty than sticking people in a cell. But both the duration and process in this bill suck. At least if you are in a cell you can challenge your detention. But if a police officer issues one of these orders you can do... nothing. There is no judicial oversight, no test of the evidence, no check on the police. The only mechanism is a High Court judicial review, beyond the financial means of almost everybody, and too slow to do any good.

I've seen one suggestion for a different process which would provide a cooling off period with proper judicial oversight, which I think I'll be pushing as an amendment at Select Committee - but I'll let the person responsible post it on their own blog rather than stealing their thunder her. But it clearly can be done properly, with a little thought. Which raises the obvious question: why didn't they?

Hugh said...

Muerk, whenever due process is removed, we're always told it's in order to protect somebody. While I can accept that you think that practical protection is more important than the rights of alleged criminals, we really need to ask whether this dichotomy is actually applicable. That is, does this removal of rights actually protect people?

I'm reminded of John Howard's massive intervention of the self government of indigenous Australian communities. Whenever somebody criticised the lack of due process, they were always told that the most important thing was to protect children from abuse.

I find it quite sad that the police are presumed to be worthy of trust and entitled to the benefit of the doubt when acting against accused abusers, but not when they are the accused abusers. To put it more bluntly, would you have handed Clint Rickards this power?

Idiot/Savant said...

To put it more bluntly, would you have handed Clint Rickards this power?

Hell no.

And while not all police officers are Clint Rickards, the potential for abuse is precisely why there must be proper judicial oversight.

Emma said...

Okay, so if the offender isn't being jailed, what keeps them out of the home for 72 hours (or how ever long is decided)? I mean, the problem with protection orders right now is not that they're not being handed out, but that they're almost impossible to enforce.

I don't see this deterring the worst offenders, the most violent. I do see the potential for abuse. That's why the trade-off isn't worth it for me.

Julie said...

Readers may be interested in Anita's continuation of this discussion over at Kiwipolitico too.

Ari said...

Well, the issue of violence and safety I is urgent enough I think that this law deserves a good chance to work and demonstrate whether it allows the police to help out when they previously couldn't. With a highly ethical police force, I wouldn't have any objection to the law in practice.

That said, I have to support I/S in principle. Any police force that rapes, spies, harasses, and beats the populace as frequently and blatantly as ours does is not ready for this type of power. We really need some comprehensive and truly independent oversight for the police that can hold them accountable.

Hugh said...

With a highly ethical police force, I wouldn't have any objection to the law in practice.

Is there any law that wouldn't work perfectly with a highly ethical police force? Unfortunately the nature of policing makes such a contingency unlikely at best. If we are really to put our faith in the police, we wouldn't need laws at all, we'd just trust them to do the right thing.

Even if one is inclined to give the police the maximum benefit of the doubt the inescapable fact is that their role is to enact the law, not use their own discretion.

I'm sorry to carp on this point but it gets right to the heart of the matter to me. As I/S rightly says, we can't trust the police with the powers they do have, and the idea that giving them more power will correct their behaviour is startlingly naive.

We have no guarantee that the police will use this power only to evict people who are accused of abusing their partners. I see nothing to prevent them from using it on anybody they want to harass. Anti free-trade protesters, immigrants, homosexuals, you name it. Out of your house for 72 hours, see you in court.

As I said earlier, usually this blog has a commendably sceptical view of the police's goodwill. Unfortunately there seems to be a rather gaping blindspot when the police are supposedly acting on behalf of an abused woman.

Idiot/Savant said...

Out of your house for 72 hours, see you in court.

Or not; the bill proposed by the government has no effective power of review, and no way of challenging the police's decisions. There is redress when it is used in bad faith, but that is a high barrier to meet, and as we have seen from John Dewar, the police are more than happy to cover for their own.