Allegations of domestic violence are frequent in post-divorce/separation situations. The consequences of such allegations can be serious for the alleged perpetrator since occupation of the home and custody of the children may be at stake. There are three main areas of debate in this controversial field.
Legal burden of proof
Fathers' rights campaigners contend that situations where assault has been alleged should properly be dealt with by the criminal courts and not be treated as a untested slur on a man's character in family proceedings. The legal principle of innocent until proven guilty should apply as much to allegations of domestic violence as to any other allegations of criminal behaviour. Furthermore, the legal burden of proof - beyond reasonable doubt - should apply. As against this, others including women's groups point out that the victim may be too frightened to give evidence to the police. Consequently, they argue that the burden of proof should be less, i.e. on the balance of probabilities, or the precautionary principle should be used.
Definition of domestic violence
The legal definition of domestic violence in common law countries (including the USA and UK) also includes non-physical assault e.g. stalking, silent phone calls, threatening language etc and "low-threshold" actions such as touching. Fathers' rights campaigners believe that a low threshold for what types of conduct can be construed as violent will be used in child proceedings to make allegations of violence against them on tenuous grounds. There are three definitions which have generated particular alarm due to the ease of fabrication as a basis for contact denial:
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This is the view that even if there had been no violence, then the fear of violence from the father on the mother would be sufficient to deny contact with the child(ren). This matter is usually addressed in practice by arranging that no direct contact takes place between the parents at the point of changeover or by using contact centres.
- Stress arising from other parent's contact/(custody) application
- This is the view that it is a risk to allow a parent-child relationship to continue where an application for contact results in stress to the child or child's carer. Thus, going to court to obtain parenting time with one's children can be used as a reason to deny it. [1]
- Denial as domestic violence
- There is also concern that a man who denies that he has committed domestic violence may be regarded as committing domestic violence by his very denial.
False allegations of domestic violence
The prevalence of allegations of domestic violence when couples break up is not surprising. However, fathers' rights campaigners contend that many of these allegations are false and are motivated by the gains in property and child custody which may accrue to the alleged victim. High profile cases of false allegations of rape include that made against Neil Hamilton, the former British government minister. It is also pointed out that the Home Office Research Report 191 concluded that men and women were equally likely to initiate domestic violence; several studies in the USA have come to the same conclusion. Many are concerned that the prosecuting authorities simply do not take seriously the violence perpetrated by women on men.
The countervailing view is that there is evidence to disprove arguments that falsification of domestic violence claims are rampant and not genuine. The Domestic Violence Legislation Working Group of Australia has stated that there is no "firm evidence that misuse of the legislation is rampant", in the New South Wales Bureau of Crime Statistics evaluation report of the apprehended violence order (AVO) system have concluded that a majority of women taking out AVOs in situations of domestic violence have done so genuinely.
A further argument against widespread falsification relies upon the fact that lying about domestic violence is perjury which is severely punishable. Whilst this is an attractive argument it is weakened by the observation that perjury is very seldom, if ever, followed up in the family law system .
References
[1] Proceedings often mean a standstill in the child's development while his or her carer's emotional energies are taken up with the case and the child is only too aware that he or she is the centre of attention and somehow responsible for this and the resulting distress. (Reference: Contact and domestic Violence: the Experts' Court Report by Sturge & Glaser 2000.)
See Also
Research
6% of mothers and 3% of fathers self-report having physically abused their children, defined as having hit the child with a fist or kicked the child, thrown the child or knocked them down, choked or burned the child, or used a knife or gun against the child. U.S. Department of Health and Human Services
40% of the time children were maltreated by mother vs. 18% by father. U.S. Department of Health and Human Services - Administration for Children and Families
About 1.3 million women and 835,000 men are physically assaulted by an intimate partner (cf. p. v). U.S. Department of Justice
More than $1 billion spent to police and prosecutors. Since 1995, when a wife feels fearful, it is domestic violence. U.S. Department of Justice: Office on Violence Against Women of 1995
85% of order of protections are awarded to females, 7% of petitions denied. State District Court
Last updated: 08-29-2005 05:31:36
