French couples had better learn to fight fair.
A proposed law will make chronic insults and belittling between husbands and wives a criminal offence in France. It is believed to be the first law anywhere to make such a sweeping definition of “psychological violence” within marriage a matter for the courts.
Although the law (expected to be implemented in about six months) isn’t designed to send spouses to jail for nagging about dirty dishes in the sink – despite a flurry of blogging to the contrary – it has raised questions about how to define psychological abuse between couples, and how far courts can realistically go in making sure that husband and wives are nice to each other.
The legislation, which is similar to a French law already passed covering psychological abuse in the workplace, will make “conduct or words” repeated for the purpose of damaging the victim’s life and mental health an offence with a penalty of up to three years in jail.
“This sounds like a lot of work for lawyers,” said Philip Epstein, a Toronto family lawyer, who suggests that such cases, especially in a Canadian context, would be hard to prove. Since there would no physical evidence, judges would be left with the complicated task of assessing “he said-she said” testimony, Mr. Epstein said.
Also, “It would be very difficult to draw the line,” he said. The law could easily result in false accusation. “In marital situations, there is never any black and white.”
Canadian courts have become more aware of the impact of psychological abuse, particularly in assessing risk within families.
According to a 2004 Statistics Canada survey, emotional abuse is reported at twice the rate of physical abuse; about one in five women and men said they had experienced emotional or financial abuse from their partners. The most common examples: calling the victim names or insulting them; jealous accusations, and demanding to know their whereabouts and company at all times.
But while research has found that psychological abuse can be more damaging in the long term than physical harm, experts studying the issue acknowledge it’s very difficult to define.
“When does just being mean escalate into abuse?” asked Leslie Tutty, a professor of social work at the University of Calgary who studies domestic violence. “And if professionals like social workers and psychologists haven’t defined it that well, how on earth do we expect police officers to intervene?”
To reach a criminal level, she suggested, the abuse would have to be chronic, targeted to a vulnerable aspect of the victim, such as finances, and be so severe that the victim feared for their safety. Still, those conditions would be difficult to prove in court; even more so when child custody or divorce was at stake.
“When you are counselling people who are getting divorced, they often describe their partner as ‘abusive’ – it’s entered the common vernacular,” Prof. Tutty said. “When, in fact, divorce is awful and people tend to do mean things to each other.”
Although the wording of the law is vague, French officials have said it is meant only to deal with the most “insidious cases.” These are “situations that leave no visible scars,” French Prime Minister François Fillon explained, “but which leave the victim torn up inside.”
But courts, experts say, often fail to get convictions even in cases when they have the physical scars of abuse for evidence.
“We don’t even deal with the laws and policies that we have at our disposal properly,” said Victoria lawyer Diane Turner. She recently participated in a provincial inquest after Peter Lee, who had been released on bail despite police concerns about his family’s safety, killed his wife, her parents and his six-year-old son and then committed suicide in 2007. “We have tools we don’t even use now,” Ms. Turner said.
She suggested that most countries would be smarter to use their resources to move cases through the courts more quickly, and provide better social support for families in trouble. In Calgary, for instance, a pilot project teams a police officer with a social worker; they visit and offer help to high-risk homes where domestic problems have come to the attention of police, but charges were not laid.
“That’s really preventative work,” said Kevin McNichol, the executive director of HomeFront, a social agency involved in the project. There are many times, he said, “when police come and look around and say, ‘We’re not referees, we’re not marriage counsellors, and we don’t see a crime.’ But everybody knows that’s a problem home. As a community, we are now responding.”
Of course, criminal laws are also designed to be a deterrent. After Canadian domestic violence legislation was strengthened in the 1990s, Ms. Turner said, many “people who thought they were entitled to [abuse their partners] were pretty surprised to find themselves in custody.”
Deterrence may, ultimately, be the main objective of the new law in France – a country that has traditionally been slow to address domestic abuse and where, according to government statistics, 157 women and seven men were killed by their partners in 2008.
