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 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.