What the law establishes

After long years of gestation, the law on protection against domestic violence has finally seen the light of day. The rules adopted are useful tools in this struggle to assert human rights within the family, but, at the same time, the legislative effort has stopped halfway. Let us look at the lights and shadows of this recent measure.

The law establishes that any person who has been injured or mistreated, physically or psychologically, by a member of their family may bring this situation to the attention of the family court judge. In the case of children or legally incapable persons, the facts must be reported by their legal representatives (mother, father, guardian or curator) or by the public prosecutor’s office. Also required to make a report are welfare, social or educational services, public or private, health professionals and any public official who has become aware of such episodes of aggression in the course of their duties (arts. 1 and 2).

We believe that the new provisions are judicious in that they seek to stimulate civic responsibility from within the legal field. A concealed fact means covering up harm and even the possible death of defenceless creatures. Public disclosure is a gateway to the family that needs help. Informing the court is not only an act of responsibility when vulnerable beings such as children, the elderly or the legally incapable are concerned; as Cirillo and Di Blasio put it (2), the report becomes “a clinical instrument for achieving communication with a family that would otherwise be inaccessible”.

Opening a new, non-repressive channel for bringing the problem into the open is an important step forward, tending to make visible the facts of family violence, hidden in the half-light of intimacy. We verified, in research we conducted (3), that the victims of violence, health professionals, teachers and even the ordinary citizen are reluctant to inform the police of such facts. On the one hand, the report is experienced by the professional as an act of betrayal that makes them guilty and, on the other, criminal justice is perceived as a structure that can neither contain nor resolve the conflict. What are the effects of bringing the matter before the family courts?

The effects of bringing the matter before the judge

Protective measures

In the first place, the judge, once the reported facts have been established, has the power to adopt protective measures to prevent the repetition of the violent acts. The judge may exclude the perpetrator of the abuse from the family home, for as long as they deem necessary, whether spouse or cohabiting partner; likewise, they are authorised to issue an order forbidding the aggressor to approach the home, workplace or place of study of the affected person. If the person who has been subjected to ill-treatment has had to leave their home, the judge may order their reinstatement in that home, excluding the aggressor from it.

Finally, in the same proceedings, the judge has the power to fix provisional maintenance, to award custody of the children and to establish a contact arrangement with them (art. 4). It is important that the same judge should have the power to resolve these problems, because very often the woman puts up with ill-treatment for lack of resources or for fear of losing custody of her children.

The mediation hearing

In the second place, after adopting the necessary protective measures, the judge summons the parties to a mediation hearing, urging them to take part in educational or therapeutic programmes, according to the diagnosis made (art. 5).

The shadows: when the perpetrator of the violence refuses treatment

While the mediation approach seems to us appropriate, the law offers no solution when this approach fails. That is, in cases where no agreement is reached, where the perpetrator of the ill-treatment does not want to submit to therapeutic or educational treatment or, having begun it, later breaks it off. The law has stopped halfway, because if the perpetrator of the abuse obstructs the therapeutic path, the court’s action comes to an end and impunity sets in again. We know that the perpetrators of violent acts frequently find it hard to acknowledge their problem and that it is difficult for them to ask for help, even if they want to get out of the situation. The court’s mission is precisely to protect the integrity of the person and, at the same time, to establish the appropriate containing framework for attempting the recovery of the family nucleus, with the necessary monitoring of the therapeutic action by means of reports submitted by the professional involved.

In other legislative proposals, for cases where the perpetrator of the violent acts refused to submit to the therapeutic or educational programmes, broke them off or reoffended with acts of violence, sanctions were envisaged such as fines, the performance of community service, or the communication of the acts of violence to the professional associations and trade unions to which the perpetrator belonged. The intention of these non-custodial measures was to symbolise, through the law, the social disapproval intended to delegitimise behaviours often experienced as normal.

In short, the law adopted meets the demands of society in that it opens a new space for reporting, broadens the protective rules and makes mediation possible. However, the change is overshadowed if, faced with the impossibility of applying a therapeutic approach, through the perpetrator’s own will, the judge remains bound by that decision and is prevented from administering justice by means of appropriate powers of sanction.

A law is not the complete solution

Finally, we wish to stress that, while a law against family violence can help to mitigate the phenomenon, it is not the complete solution to it, but one more element in the multiplicity of actions to be undertaken, such as: social policies tending to improve people’s quality of life, educational programmes for parents to help them in their child-rearing role, community support mechanisms, specialised training of health professionals and officials for the early detection of abuse, training of police personnel, and interdisciplinary family centres or neighbourhood family counselling services. In other words, it is important to offer people different avenues through which they can bring up their family problems and receive help or guidance. Moreover, for the law to be effective, it is necessary to give people the possibility of access to the court, to offer legal assistance and to devise mechanisms so that they know the rights and resources that exist.