Discussing the court’s role in domestic violence

November 1st, 2020
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Courts remain limited in their ability to solve the problem of domestic violence. Domestic violence continues to be a broad social problem, which needs to be addressed by society, the government, communities and individual citizens. When the court gets involved, the domestic violence, has already occurred and the courts often have to deal with the messy aftermath. As such, the court’s role remains as it always has been – to use sentencing policy to denounce domestic violence in clear terms and to deter the offender and other persons from committing acts of domestic violence. Courts alone are not able to solve domestic violence. In its report ‘Crime against women in South Africa’, Statistics South Africa (Stats SA) shows that femicide (the murder of women based on their gender) is five times higher than the global average (www.statssa.gov.za, accessed 5-10-2020). This means that in South Africa (SA), women are five times more likely to be killed due to gender-based violence committed by men. The law should, nonetheless, be vigilant in ensuring that its substance and procedures are well-tailored to the needs of those suffering in abusive households. The community should seek to provide a web of supportive services to victims of domestic abuse. The law cannot play its part in a meaningful way in isolation from the larger community of services. A comprehensive approach is required to tackle what some described as genocide against women, specifically in SA.

One of the hallmarks of domestic violence is its private nature. Familial abuse occurs within the supposed sanctity of the home. There is no question that one’s privacy at home is a value to be preserved and promoted, however, privacy cannot trump the safety of all members of the household. If society is to provide an effective means of dealing with domestic violence, it must have a form of crisis response. South Africa’s response thus far has failed victims of domestic violence as domestic violence is not a private matter. To consider it merely a private matter would serve not only to perpetuate it but to remove victims from the protection of the court. Domestic assaults are not private matters, and spouses are entitled to protection from violence just as strangers are. Society has a deep interest in this kind of conduct. It is neither a private matter between the parties to the relationship, nor will the matter go away if there is forgiveness within the relationship. This kind of conduct endangers and imperils society. The guardians of the social interest, the people involved in social work, educators, priests and the police who are called out and into these situations, must have the protection of the law and the understanding that these offences will not be ignored by society or that forgiveness by one spouse will not put an end to the offence.

A child’s early observation of violence among the people they love, plants the seed of acceptance of violence that all too often emerges years later in their own lives. A child is negatively affected when an adult they love and depend on is emotionally, financially, physically or sexually targeted by domestic violence. At the very least, the child’s security and stability are shaken. A child whose parents or caregivers engage in domestic violence is denied appropriate adult role models and thus they are denied opportunities to learn about healthy intimate relationships and problem-solving skills. Abuse and violence in the home creates stressful living conditions. Excessive stress in the home is known to result in trauma and, potentially, in developmental harm. Abuse and violence need not be directed at the child to cause the child emotional and/or psychological harm.

Not every child exposed to domestic violence will incur lasting damage (much depends on the frequency, duration, severity, and access to safety, stability and resources, as well as the stability of the child’s bonds with caring adults who do not engage in abuse). Some short- and long-term conditions childhood of exposure (direct or indirect) to domestic violence, includes increased rates of –

  • aggression and violence; and
  • involvement in criminal and deviant activity.

Engaging in domestic violence is associated with harmful parenting practices. These practices often mirror the behaviour patterns related to coercive and controlling elements of domestic violence. Engaging in domestic violence is also associated with direct forms of child abuse. The risk of physical child abuse increases with the frequency and severity of domestic violence. A child who is exposed to domestic violence is more likely to encounter multiple additional stress-inducing adversities, such as direct child abuse and exposure to other forms of violence than other children.

In the 18th century, a judge named Francis Buller said that a man is entitled to beat his wife with a stick ‘no thicker than his thumb’ (Jennifer Freyd and JQ Johnson ‘Commentary: Domestic Violence, Folk Etymologies, & “Rule of Thumb”’ (https://dynamic.uoregon.edu, accessed 20-9-2020)). Laws do not happen in a social vacuum. The notion that a man has a right to ‘discipline’ his wife is deeply rooted in the history of our society. The woman’s duty was to serve her husband and to stay in the marriage at all costs ‘till death do us part’ and to accept as her due any ‘punishment’ that was meted out for failing to please her husband. These notions are rooted in the sinful nature of man, which turns male headship into domination and female submission into manipulation. In Genesis 2:18 (NIV) it reads ‘It is not good for the man to be alone. I will make a helper suitable for him’. Eve was made from Adam’s rib. Eve was not made out of Adam’s head to rule over him or out of his feet to be trampled on. She was made out of his side to be his equal, under his arms to be protected and near his heart to be loved (www.biblestudytools.com, accessed 20-9-2020).

In the introductory paragraph, I discussed the limited role that a court plays in addressing domestic violence. Courts and law enforcement agencies enter the ring in the last round of the match so to speak. In many instances and regrettably, it is too late as many victims of abusers could attest. The very nature of domestic violence makes it difficult for victims to speak out and seek help. Victims who speak out about abuse still face the prospect of being condemned by popular mythology about domestic violence. Either she (I refer to females as they are mostly the victims) was not as ‘severely beaten as she claims, or she would have left the man long ago’. Or, if she was battered that severely, ‘she must have stayed out of some masochistic enjoyment of it’. We should never compare animals to human beings, but in laboratories, if you shock an animal, after a while, it cannot respond to a threat on its life. It becomes helpless and lies there in a demoralised state, where the animal feels there is no power, and there is no energy to do anything. So in a sense, it happens in human beings as well. It is almost like a concentration camp if you will. You get paralysed with fear. An abuser who has very disturbed or damaged self-esteem tends to counterbalance their actions by diminishing the self-esteem of the victim in numerous ways.

Domestic abuse, which continues unnoticed for lengthy periods, is due to the ability of the abuser having a public and a private face. The abuser’s public face demonstrates acceptable standards of behaviour according to society’s morals and standards. The abuser’s private face is unseen to most. An illustration is the shock and surprise members of the community express when it becomes public that the abuser has been abusive towards their partner. Guilt, lack of self-respect, and shame make it difficult for abusers to step out and seek assistance. Their difficulty is compounded with the lack of appropriate platforms, programmes, and facilities for guidance and assistance. In SA, we have groups for alcoholism and drug abuse. We have rehabilitation programmes and legislation to assist with alcoholism and drug abuse. I do not know of any national programme for domestic violence, which has far more devastating and tragic consequences for our society.

The preceding paragraphs illustrate that domestic violence is not a private matter as it affects society in general. A multi-facetted approach is required to tackle domestic violence. Our approach should be that you catch more flies with honey than with vinegar. I say this, because the court in terms of s 5 of the Domestic Violence Act 116 of 1998 considers an application submitted to it in terms of s 4(7) and may, for that purpose, consider such additional evidence as it deems fit, including oral evidence or evidence by affidavit, which shall form part of the record of the proceedings. In most cases, it is too little too late. A collective approach by the wider community could have addressed the abuse, which in most cases occurred over a long period of time. As the saying goes, prevention is better than a cure. I think an approach that focuses its attention in the following manner, might be more sustainable and effective:

  • Risk-focused (focusing on reducing or preventing risk and its impact): Religious leaders of each local community should play a more active role in identifying possible abusive relationships within their congregations. Logic and common sense dictate in most cases a human will communicate more easily with a known person (their local priest) than with a stranger like a magistrate. The scope of assistance and remedies available to religious leaders are greater than that of magistrates. I say this, because the earlier intervention takes place, the more the chances of rehabilitation. At the risk of being prescriptive, I would venture to suggest teachings about love, the relationship between partners as I referred to earlier may assist. Creating an environment where groups of men and women at first individually and later collectively communicate about families and the role each member should play should be encouraged. It creates an environment where it will be much easier to communicate. I am aware SA is amid the COVID-19 pandemic, but technology through the different instant messaging platforms, such as WhatsApp might be a viable option. Crafting these platforms provides religious leaders with the opportunity to identify couples who might be at risk. It gives the religious leader the opportunity for early intervention and addressing the problem.
  • Resource-focused (adding resources to counterbalance risk): In the event, the first phase does not produce the assistance needed, the Department of Social Development and similar organisations are available. In extreme cases, especially where there is violence, law enforcement agencies must be notified. Social workers or family counsellors could provide professional help and put programmes in place to address and resolve the conflict at a secondary stage.
  • Process-focused: This is the tertiary ground on which courts, in adjudicating s 5 of the Domestic Violence Act applications, have all the information available from the various sources (such as the primary and secondary focused groups) to make an informed decision. The court, due to voluminous applications and the pressure of finalising these applications, will have to make one of three decisions available to its disposal –

–    issue an interim protection order against the respondent;

–    call on the respondent to show cause on the return date specified in the notice why a protection order should not be issued; or

–    dismiss the application.

I am aware some judicial officers will postpone the application for mediation, which will lead to either a withdrawal of the application or one of the orders in terms of s 5 of the Domestic Violence. Innovation and out of the box thinking is required (especially in cases where there is no evidence of the requirements set out in s 5(2) of the Domestic Violence Act. The ‘winner takes it all’ approach has not worked in the past or the present or the foreseeable future. Such an approach will in future, lead to a custodial sentence, which will have devastating effects. We must remember that seeking help from the courts is a last resort for the victim. Unfortunately, most victims do not have a platform to report in the first instance of abuse. Most victims are already desperate and fear for their lives when they approach the courts. Courts should be empowered to make orders for victims and abusers to attend therapy either at the primary or secondary stage before making orders in terms of s 6 of the Domestic Violence Act. I tread cautiously and do not suggest that a blanket approach be followed. Judicial officers and legal representatives must be sensitive to family matters. It is important to remember that many lives are at stake when dealing with these applications. Immediate family members, neighbours, friends, work colleagues, and employers are directly and indirectly affected by decisions that are made. I purposely do not refer to the role of children during the tertiary stage, because as far as possible, children must not for many reasons be involved during the process stage. If the court grants the application in terms of ss 5 and 6 of the Domestic Violence Act, it gives them little movement to manoeuvre when criminal proceedings are instituted in terms of s 17 of the Domestic Violence Act.

Lastly, let us give families a chance to be families in the true sense of the word. Let us create an environment when dealing with domestic violence to provide families with the best opportunity to restore and heal before it destroys itself. As Former President Nelson Mandela said ‘no problem is so deep that it cannot be overcome, given the will of all parties, through discussion and negotiation rather than force and violence’ (www.sahistory.org.za, accessed 5-10-2020). Former President Mandela also said ‘people respond in accordance to how you relate to them. If you approach them on the basis of violence, that’s how they’ll react. But if you say we want peace, we want stability, we can then do a lot of things which will contribute towards the progress of our society’ (www.readersdigest.co.uk, accessed 5-10-2020).

Desmond Francke BIuris (UWC) is a magistrate in Ladysmith.

This article was first published in De Rebus in 2020 (Nov) DR 12.