INTRODUCTION

This chapter will explore how human rights arguments play out in the context of legal remedies. The focus will be on abuse between people in an intimate relationship. Subsequent chapters will explore issues that arise in particular contexts: for example, where there are children, or cases of elder abuse or parental abuse. The arguments made in this chapter will be generally applicable, but will need to be adapted in those contexts.

In exploring the legal responses to domestic abuse, it is important to remember three key lessons from Chapter 3. The first is that the government, the police, the prosecution authorities and the courts are required to take positive steps to protect victims of violence. Rights in the domestic violence context should not be seen as restraining government activity, but rather compelling it. Second, where the court must achieve a balance between the property and privacy interests of the abuser and the right to protection of the victim, rights should be used to require the courts to place most weight on the protective interests of the victim. Third, international rights treaties require particular attention to be paid to the interests of children. This third point will be developed further in Chapter 5.

THE RANGE OF LEGAL RESPONSES

In very broad terms, legal responses to domestic abuse can be divided into criminal law and civil law. This has traditionally been a fundamental distinction in the law. Criminal proceedings are brought by the state to recognise a public wrong and result in a punishment being imposed to acknowledge that wrong, promote the rehabilitation of the offender and deter criminality. Civil proceedings are brought by individuals seeking remedies for a wrong done to them: to provide compensation or to stop a wrongful act continuing. In the field of domestic abuse, these distinctions have become blurred, certainly in English law, with, for example, criminal penalties being used for breach of civil orders, and criminal proceedings being used to protect victims. Despite the increasing overlap between these, it is still helpful to use them as broad divisions. At a conceptual level, they are significant because, crudely, criminal law proceedings represent the protection of the interests of the state in relation to domestic abuse, while civil law proceedings represent the protection of the interests of the victim in domestic abuse.