Analysis: The Irish criminal justice system's response to domestic abuse has improved, but outstanding issues still impede successful prosecutions
It is not that long ago when domestic abuse was viewed primarily as a private matter to be resolved within households and something the State, and the criminal justice system, should not concern itself with. Fortunately, the gravity and, unfortunately, the continuing prevalence of domestic abuse is now acknowledged within Irish society and is appropriately recognised as a matter to which the State must proactively respond.
Recent years have seen increased efforts to respond to domestic abuse as both a family law matter and criminal behaviour which should be prosecuted and punished accordingly. A clear watershed moment in this process of recognition was the introduction of an offence of coercive control in the Domestic Violence Act 2018, which for the first time in Irish history, criminalised the controlling and coercive behaviour which is a key feature of domestic abuse.
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From RTÉ Radio 1's Drivetime, Senator Fiona O'Loughlin and campaigner Jason Poole on the introduction of coercive control legislation
More recent legislative interventions in the Criminal Justice (Miscellaneous Provision) Act 2023 have further strengthened the criminal law in this area. This legislation created new offences of non-fatal strangulation and stalking, and strengthened pre-existing provisions relating to harassment and assault causing harm to better protect domestic abuse victims.
But while there have been considerable improvements in the criminal justice system response to domestic abuse, a number of outstanding challenges continue to pose obstacles to successful prosecutions of domestic abuse perpetrators in Ireland. For example, the offence of coercive and controlling behaviour in intimate relationships is challenging to investigate and prosecute.
Police investigations are typically based on an incident-model: that is, there is one incident or a series of incidents in relation to which evidence must be gathered. In a typical assault case, gardaí would focus on that specific incident, gathering witness statements, physical evidence (e.g. medical evidence of injuries sustained, clothing etc) and any available CCTV footage, for example, if the event occurred in public.
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From RTÉ Radio 1's Today with Claire Byrne, Louise Jackson on escaping violence, intimidation and coercive control
By contrast, gardaí must gather evidence in order to establish a pattern of behaviour in coercive control cases. This requires much more intensive investigation and significant knowledge of how to identify and prove the often insidiously subtle techniques of abusers who coerce and control their partners. Research conducted with Irish domestic abuse service providers highlights the 'evidential difficulties' associated with coercive control. Respondents note that a variety of sources of evidence are required so that the sole evidence is not the testimony of the complainant.
Research with police in England, where a very similar coercive control offence was first introduced in 2015, has demonstrated the challenges encountered by police when investigating that offence. Police officers highlighted the ‘mindshift challenge’ faced by officers when adapting to investigating the pattern-based nature of coercive control.
Another English study found evidential opportunities which were not being identified by police or disclosures of coercive or controlling behaviour in witness statements not appropriately followed up on. To effectively respond to coercive control, gardaí need significant resources, as well as specialised training to enable them to detect and properly investigate this offence. The introduction of the offence on its own is not enough to ensure that coercive control is detected and punished in this jurisdiction.
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From RTÉ Radio 1's Today with Claire Byrne, solicitor Orlagh Sharkey on how to seek help through the courts for cases of coercive control and domestic violence
The experience to date of prosecuting coercive control in Ireland has also highlighted another potential shortcoming in this area of criminal justice law and policy and that is the lack of a bespoke, unified offence of domestic abuse. The successful Irish prosecutions for coercive control have typically involved charges not just for coercive control, but also for a variety of other offences such as assault, sexual offences, threats to kill or criminal damage.
However, without a unified offence of domestic abuse, each of these harms is prosecuted as a separate offence (albeit within the same proceedings). This approach does not accurately reflect victims’ experience of domestic abuse, where harms are not experienced as individual incidents but as part of a continuum or pattern of abusive behaviour.
The current approach also raises practical challenges which may impede successful prosecutions. In artificially delineating a victim’s experiences into a series of sample charges for specific offences, victims are required to give evidence with regard to individual incidents. Where a victim has been subjected to a pattern of abusive incidents over a sustained period of time, providing evidence in relation to a specific incident may be challenging, and may in turn negatively impact on their apparent credibility, particularly in a jury trial. The current approach also makes sentencing in these cases unnecessarily complicated, with individual sentences being imposed for each charge, rather than allowing for a more holistic approach, which allows for the imposition of a sentence based on the totality of the harm inflicted on the victim.
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From RTÉ Radio 1's Liveline, Daniel Kane from Blachardstown in Dublin was the first person to be convicted of coercive control in Ireland and his ex-partner, Mary, tells her story
There is a strong case for the introduction of a unified, bespoke offence of domestic abuse in Irish law. An example of such an offence may be found in Scotland, where the Domestic Abuse (Scotland) Act 2018 introduced a domestic abuse offence which incorporates physical, sexual and psychological abuse.
The introduction of an offence like this in Ireland would better reflect victims’ experiences and the complex and pattern-based nature of domestic abuse, as well as addressing some of the practical challenges posed by the current approach to prosecutions in this area. Above all, it would serve an important symbolic function, sending a clear message that domestic abuse, in all its forms, is a crime which the criminal justice system will prosecute and punish accordingly.
There have undoubtedly been significant improvements in the Irish criminal justice system’s response to domestic abuse. However, practical challenges remain which continue to create impediments to successful prosecutions. Sustained resourcing of garda training and investigations, along with further legislative intervention, is vital if victims’ experiences of domestic abuse are to be appropriately recognised and punished by the Irish criminal justice system.
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The views expressed here are those of the author and do not represent or reflect the views of RTÉ
