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Books > Law > English law > Private, property, family > Gender law
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Domestic Violence Law Reform and Women's Experience in Court - The Implementation of Feminist Reforms in Civil Proceedings (Hardcover, New)
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Domestic Violence Law Reform and Women's Experience in Court - The Implementation of Feminist Reforms in Civil Proceedings (Hardcover, New)
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The fact that domestic violence is a serious and ongoing social
problem has been well recognized since the women's movement made
the hitherto private experience of violence against women in the
home into a political issue in the 1960s and 1970s. In Australia, a
major national prevalence study of violence against women conducted
by the Australian Bureau of Statistics in 1996 found that 23% of
women who had ever been married or in a de facto relationship-1.1
million women-had experienced violence from their partner at some
stage during the relationship. Feminist legal scholarship, however,
has highlighted the many failures of criminal law to respond
adequately to women's experiences of domestic violence. Civil
remedies for violence and abuse seem to offer better possibilities:
there is a lower standard of proof, and the woman is the subject of
her own action rather than merely being the object of proceedings.
The availability of civil remedies has, in many cases, resulted
from feminist campaigns to fill the gaps in protection left by the
criminal law. It has also been argued that civil actions provide
scope to change public discourses and legal understandings of
violence against women. Listening to women's stories might force a
revision of traditional conceptions and myths about what
constitutes violence, its causes and effects, and "appropriate"
reactions to it. This study investigates the ways in which women's
experiences of domestic violence are heard and understood in civil
court settings, and examines women's experiences of telling their
stories (or at least attempting to do so) in those settings. The
two areas on which the study focuses are intervention order
proceedings in State Magistrates' Courts, and residence, contact,
and property matters in the federal Family Court in Australia. The
relevant legislation in the two jurisdictions is either partly or
wholly a product of feminist legal activism. The study, therefore,
seeks to determine whether the feminist claim that the criminal law
silences women also pertains in the context of new civil claims
specifically designed to respond to women's experiences. The
general history and theory of law reform suggests that reforms
often strike problems in the process of implementation. But because
law does not operate monolithically, the exact nature of those
problems is not necessarily predictable. In the context of this
study, implementation problems may arise from social and legal
discourses about domestic violence and about victims of violence
which tend to operate constantly across the legal system, and/or
they may arise from the particular rules and structures found in
each institutional setting. There is thus a need for detailed
examination and analysis of how these various elements operate and
interact in different court settings. In undertaking this task, the
study has two objectives. First, it draws conclusions about the
nature of implementation problems in the two jurisdictions in order
to inform future feminist activism around violence against women.
Secondly, it makes a more general point about the importance of
procedure in feminist legal theory and praxis. In Australia in
particular, feminist legal scholars and advocates have placed a
heavy emphasis on doctrinal revision and have largely ignored
issues of implementation. The study argues that procedure
(conceived broadly to encompass the what, where, how, and who of
legal proceedings) crucially shapes women's experience of the legal
process, and is neglected by feminists at their peril. This book
will be of interest to feminist jurisprudence and law and society
scholars and researchers, and to activists and advocates in the
field of domestic violence.
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