The proposed new law, inspired by a UK law and known as Clare’s Law, that would allow people to check with the police whether their partner has any history of domestic violence needs some fine-tuning.
The whole scope is to introduce a register of people who have been convicted of domestic violence. The register is not made public but those in a relationship who suspect that their partner might turn abusive can file a request with the Victim Support Agency to inquire whether they have been found guilty of domestic violence in the past.
In this sense, therefore, the new law would not allow just anyone to check on the criminal history of whomever they wanted.
Yet, is all this enough to stem the growing social scourge of domestic violence within our society? While this law will bring with it some definite benefits, there are also drawbacks when considered in the realm of domestic violence, where the increased likelihood of criminalisation and further legislation do not necessarily provide effective safety and security outcomes for women victims of violence.
Mine is a timely critical analysis of the need for and merits of Clare’s Law, coupled with the need to balance the right to protection with the right to privacy and the question of victim empowerment versus responsibilisation and victim blaming.
The introduction of this disclosure scheme for domestic violence in Malta should build on a previous disclosure scheme introduced for sex offenders. The latter scheme authorises, under certain conditions, the public disclosure of a convicted sex offender’s personal information to individuals and organisations residing in the community.
Its introduction was largely driven by public fears and a political perception that the public desired ready access to advice and information about sex offenders living in the community.
While the sex offender scheme is community focused, this domestic violence scheme should be individual focused. Enshrining disclosure processes into legislation would better ensure consistency and provide clearer safeguards to ensure police practice and decision-making are aligned with existing legislation, such as data protection laws.
Consequently, two key elements should underpin this proposed new law: the right to ask and the right to know. Concerning the former, an application could be made by any member of the public who applies to the police for information about whether a person has a history of domestic violence.
In this case, three steps should be followed.
Details about the applicant and request are taken by the police and checked within 24 hours of the initial request, followed by a face-to-face meeting with a police officer and an undertaking to verify application details within 10 working days of the initial request. This would enable a full risk assessment to be completed.
At this stage, the police should meet with multiple agencies (including prison and probation services as well as social and third-sector agencies) to discuss the application and determine whether the disclosure is necessary, lawful and proportionate to help protect the potential victim from abuse.
The whole scope is to introduce a register of people who have been convicted of domestic violence- Mark Said
The ‘right to know’ request should occur where the police proactively trigger a request to disclose information to protect a potential ‘high-risk’ victim from harm from their partner. Mirroring the ‘right to ask’ approach, here, the police would meet multiple agencies to discuss the information and determine whether a disclosure should be made. The same requirements of necessity, proportionality and lawfulness are to be considered.
If the outcome of any application is for no disclosure to be made, guidelines should be provided for an officer to visit the applicant (preferably with a support worker) to discuss the applicant’s safety concerns in light of the partner’s behaviour.
Additionally, if, at any stage of the above process, it is identified that the applicant (or another person) is in immediate risk, then subsequent steps can be bypassed and an immediate disclosure made.
Regardless of whether the request to disclose is based on a right to ask or right to know, all requests should be considered through a risk assessment lens whereby disclosure is considered by a local forum, preferably on a multi-agency risk assessment basis, and should only occur where it is determined there is a pressing need.
While focused on domestic violence-related offending, disclosure should not be limited to such offences and should also include burglary, theft, robbery, affray, arson, possession of a firearm, cruelty to children, people trafficking and sexual offences.
It is only thus that this new law can strengthen the ability of the police and other multi-agency partnerships to provide appropriate protection and support to victims at risk of domestic violence, thereby reducing incidents of domestic violence through prevention and reducing the health and criminal justice-related costs of domestic violence.
Last, but not least, it may seem a petty point but there is also fair criticism that suggests that the feminine branding of such a law fails to take into consideration men who are victims of domestic abuse. Such a one-sided gender branding of domestic violence encourages an attitude of shame and secrecy for men who are victims of domestic violence.
This law has good intentions and powers but can only be effective if supplemented with support networks for the victims of domestic violence.
This is difficult at present, coupled with the huge discrepancy in police services over how long it takes to gather evidence in domestic violence cases and to act, using legitimate powers that have always been available.
Mark Said is a lawyer.