Social and Legal Measures in the Prevention of Domestic Violence –

Consultants’ response to Government’s responses to

consultants’ recommendations

Dr. Edward K.L. ChanThe University of Hong Kong The principal consultant of the

Study on Child Abuse and Spouse Battering – A Consultancy Study Commissioned by SWD, HKSAR

• Two consultancy reports released in June, 2005– Report 1: Chan, K. L. (2005). Study on Child Abuse an

d Spouse Battering: Report on findings of Household Survey. [A Consultancy Study Commissioned by the SWD of the HKSAR]. Hong Kong: Department of Social Work & Social Administration, the University of Hong Kong.

– Report 2: Chan, K. L.; Chiu, M.C. & Chiu, L.S.(2005). Peace at home: Report on the Review of the Social and Legal Measures in the Prevention and Intervention of Domestic Violence in Hong Kong. [A Consultancy Study Commissioned by the SWD of the HKSAR]. Hong Kong: Department of Social Work & Social Administration, the University of Hong Kong.

• Report 1 presented all possible prevalence rates of child abuse and spouse battering in HK.

• We now know that the “tip of the iceberg” is about 1-2%, i.e. % reported cases among violent cases in a year.

• Report 2 listed 21 recommendations on social and legal measures in the prevention of domestic violence. They could be categorized into three areas:– Batterer Intervention Program (BIP)

– Reform of DVO (Cap 189)

– Review of DV policy, mandatory reporting, arrest, prosecution, DV court, DV fatality review, victim & witness protection, training.

Policy address Oct 2005

• Government policy in handling domestic violence in Hong Kong (Para. 48)– “The Government does not tolerate domestic

violence. – We provide protection to victims of domestic

violence, in particular women and children. – We will also pursue the perpetrators of violence

and bring them to justice.”

1. Zero-tolerance

• What is tolerance? Counter examples: – negotiation of frequency and nature of violence

acts in the definition of violence– justification of violence by arguing the

intention & consequence of violence– Existing media publicity: no message on the

criminal nature of family violence

• What is the meaning of zero-tolerance?

What should be contained in zero-tolerance of domestic violence policy?

• Consultancy report (para. 7.12)– Clear definition of domestic violence

– Domestic violence is a crime

– Clear message to the public: not one single act of violence should be accepted or tolerated

– Safety first

– A perpetrator should hold sole responsibility for the use of violence

– Family approach of investigation of violence

– Multidisciplinary collaboration

2. Victim / child protection

2.1 Function of injunction order under DVO (Cap 189)– Prevention of violence, not penalize perpetrator– Cover cases that are not severe enough to

charge with criminal ordinances– Minimal protection

Who are NOT protected under existing DVO?

• When the relationship is over, violence is over?• Children and elderly … are too young and too old

to be protected?• Children – should be represented by parents or

guardians. • Not for other types of domestic violence• Gay or lesbian? Sorry!• Not to mention relatives or in-laws -- They’ll

never be attacked?!

Government’s responses (paper submitted to LegCo

Panel on Welfare Services on 05Nov3)

• “we have no in-principle objection to the proposal of extending the scope of coverage of the DVO to cover former spouse or former cohabitee”

• “premature to consider … to cover same-sex cohabitants before the public has built up consensus on the social acceptability of this approach”

• “A child under 18 is deemed a person under disability (Order 80 Rule 1). It is undesirable to allow a person under disability to prosecute actions on his own without the guidance of another person of full capacity. To allow a person under disability (which by definition includes not only a child but also a mentally incapacitated person) to bring legal proceedings on his own could give rise to the possibility of abuse of the process of court.”

• Thus, a child should consult the abusive parent or the abused parent first!

Consultants’ comment:• Is it true that everyone before law is equal?• Is law-making based on public consensus?• Should a person be examined first on “the

possibility of abuse” before one is legitimate to be protected?

• It reinforces a traditional value that child is the property of their parents which is a risk factor of child abuse and is violating to the Convention on the Rights of the Child, UN - Children are neither the property of their parents nor are they helpless objects of charity. They are human beings and are the subject of their own rights.

2.2 Court-mandated batterer intervention program (BIP)

• Why to consider social intervention program from the criminal justice perspective?

• BIP: A product of Therapeutic jurisprudence • Dennis Saccuzzo: “In therapeutic jurisprudence, the goal is

to make decisions that affect behaviour in a positive way, such as to begin the healing process for victims of domestic violence or the rehabilitation process for (domestic violence) batterers”.

• Bruce Winick: “legal actors that deal with domestic violence cases – police, judges and other court personnel, prosecutors, and defence lawyers – can perform their roles in ways that can help to rehabilitate offenders and bring about healing for their victims”.

• BIP is NOT treatment, it is NOT welfare.• BIP is a sentencing option• It combines the functions of legal

punishment & education• The foci are on victim’s safety, ending

violence and holding batterers accountable to the use of violence, NOT on individual welfare

• The goal of BIP is not on individual treatment which could be in conflict with victim safety

Goals of BIP

• Government response: – “Among others, the Consultants have suggested in para.

6.20 of the Report that the criteria of success should be defined as ending violence as reported by victims, reducing the re-offence/recidivism rate, increasing victim safety and reducing drop out or the attrition rate. We consider that the criteria for measuring success of BIP should also included attitudinal changes, increased self-control, and ability to empathize with the victims etc., which are equally important. Also, as these are programmes for the batterers, the focus will inevitably be on the batterers, though the outcome will help enhance victim safety. “

Consultants’ comment:

• Emphasis on batterer’s individual growth may jeopardize victim’s safety

• One example: confidentiality – Safety of victims VS privacy of

batterers/offenders

Whose human right? Batterer or victim?

• Government response: – “…the imposition of a requirement on a person

to attend BIP on mandatory basis may amount to a restraint of liberty and right of movement of the person concerned and have human rights implication.”

– “… there may be significant human rights implication if the order to attend BIP is given without a conviction of a crime, as some quarters have suggested.”

Consultants’ comment:

Post-conviction: BIP as a sentencing option

Batterers can choose imprisonment if they refuse to attend BIP

Batterer as offender – who defend for victim’s human right?

Context of BIP

• Criminal justice responses as a pre-requisite of the success of BIP. e.g. – monitoring after referral– mandatory counseling order in laws

• Pilot phase of BIP by SWD prepare the formation of the Batterers’ Intervention Programme Authority, standards, coordinated legal and community responses.

3. Bring perpetrators to justice

• Criminalization of violence: an example of marital rape

• Review professional reporting, police practice (arrest, investigation), prosecution, Domestic Violence Court, DV Fatality Review

Mandatory reporting

• Negative effect of mandatory reporting: dual arrest[Mr. M.K. Lee, Commissioner of police (on 25Nov2005)]:

– 「強制性」措施在一些地方實行後郤被發現有一定程度的反效果。例如因怕配偶被拘控而拒絕求助；或因雙方互相指控而要進行雙重拘捕 (dual arrest)

Original version in consultancy report

• Para. 7.31 Nevertheless, in a research conducted in 1994 among prosecutors and police, it shows that dual arrest is rare; the study also shows that police support the policy. The shortcoming of mandatory arrest, as argued by Jennie Long, is often caused by the lack of social support provided to the offender and, hence, can be compensated by court-mandated counselling. Also, there is a study showing that even though the victims do not want their batterer arrested, they are willing to support the arrest if the criminal justice system can provide them assistance and support.

What to do next on violence prevention?

• Professional reporting mandatory reporting: teacher, health professionals, social workers

• Universal screening• Early identification: Home visitation for

families-at-risk: labeling?• Training & curriculum development:

trainers’ credential