New Zealand Equality Education Foundation

(incorporating the International Ex-Fetus Association)

Sexual(1) bias, fathers’ rights, domestic violence, and the Family Court – a reply to Wendy Davis(2)

© Peter Zohrab 2005

Introduction: politics and the law

The most fundamental thing one can state about Davis’ article is that it demonstrates the centrality of fundamental incompetence in the politicised legal thinking of New Zealand today. This incompetence has to do with knowledge of what the Law actually is, and with knowledge of the fact that statements need to be supported by evidence(3). Her article exhibits gross deficiencies in these two basic types of knowledge.

The most striking aspect of her article, which laments the political influence that fathers’ rights groups have gained in New Zealand and elsewhere, is the fact that the excerpt which was reproduced in a large, bolded and italicised font and placed in a box for emphasis has nothing to do with the Family Court or the Law as it is today, but a lot to do with political ideology, unsupported by evidence. The excerpt in question states the following:

Gender bias can prejudice both women and men, but it is not symmetrical. Unlike gender bias against men, gender bias against women occurs in the context of women’s generally disadvantaged position in society and, historically, under the law.

In a journal which is purportedly about Family Law, it is nothing short of incompetence for such a passage even to appear – let alone to be highlighted as the main message of the article. What is even worse is that this sort of incompetence is the norm in the culture of Family Law theory and practice in the Western World today. The word law occurs in this excerpt only in a historical context, which is irrelevant to an article about the law as it is today. The rest of the passage is a claim about women’s allegedly disadvantaged position in society, which is a political, rather than a legal claim. Not only is it political, but it is ideological, because it relies on this catechism having been instilled into us with our mothers’ milk, absolving the author and publisher from the need to provide one shred of evidence – either for the claim about legal history or for the claim about women’s current position.

Legal issues involving sexual bias, fathers’ rights, domestic violence and the Family Court can only be rationally discussed in a context which is free of the guilt-feelings which some stakeholders expect males to feel with respect to historical or non-legal matters.

Moreover, the excerpt from Davis’ article that is quoted above is incoherent and arguably false. It is incoherent to mention “women’s generally disadvantaged position in society” without including the implied phrase “by comparison with men’s position”. It makes no sense to claim that women are disadvantaged without claiming that men are less disadvantaged – yet men are routinely not mentioned in such statements. If men were mentioned, that would naturally open the door to asking what disadvantages men suffer from, and then one might mention their life-span, conscription, workplace accidents, imprisonment rate, suicide rate, health care, and so on and so forth. In terms of legal history, as well, one might want to mention the ways in which women have been free of many of the legal liabilities that men have had to bear.

A good case could be made that men are and have been just as disadvantaged as women both under the Law and generally in society, but I do not want to make that case here, because this issue is not relevant, as I have already pointed out. The interested reader is referred to my book, Sex, Lies & Feminism(4) , and to the plethora of other books on the subject. Moreover, the rise of the Men’s/Fathers’ Movement must surely be an indication that this particular emperor might have no clothes.

It is simplistic to assume, without proof, that the fact that men occupy/occupied most positions of power results/resulted in more discrimination against women than against men(5). Chivalry has been a powerful influence in favour of women and detrimental to men’s interests(6). Paradoxically, it is arguably precisely this simplistic assumption, combined with traditional male chivalry, which produces the bias against men in the Family Court that men have been protesting about.

Much-cited studies such as Joanne Morris’ study of Women’s Access to Legal Services(7) have simply assumed from the outset that women have a greater problem with access to justice than men have, and then have later been cited as if they had proved that this was the case(8). In fact, Morris’ study did not even acknowledge(9), let alone take account of, the submission of the New Zealand Men’s Rights Association, which was principally to the effect that the original study of this type ignored findings of serious bias against men in order to concentrate on relatively trivial types of bias against women(10). Her study was in fact so biased that the Law Commission refused to publish it under its own name(11).

The Men’s/Fathers’ movement(12) has clearly influenced the tenor of the academic debate. This can be seen, for example, from Kimmel’s extraordinary statement that “It is certainly possible and politically necessary to acknowledge that some women use violence as a tactic in family conflict….”(13) One can only assume that the phrase politically necessary implies that some Feminist researchers are reluctant to address female Domestic Violence, and that it has taken the political pressure of the Men’s/Fathers’ movement to overcome this reluctance to some extent. A naïve person might hope that academics would carry out their work dispassionately, unmoved by factors such as whether or not there was a Men’s/Fathers’ movement in existence that would force them to take a male viewpoint into account. However, the fact is that, as Gelles(14) points out, advocacy and research have become intertwined.

 

Double standards

Wendy Davis states what might seem to be the very reasonable position that:(15)“If we are to avoid “social experimentation” in family law, … our practice of family law must be founded on a proper application of the law and reliable empirical data.”

However, it would not be true to say that the current (or, indeed, any previous) practice of family law is/was based on reliable empirical data, which is notoriously difficult to obtain in the social sciences. The revolutionary change to a no-fault divorce model, in particular, was quite clearly not based on any “reliable empirical data” as to the effects of such a change on divorce rates, children’s happiness and psychological adjustment, suicide rates, truancy rates, delinquency rates, drug use, or crime rates, etc.. Consequently, it might give the appearance of double standards if someone were to demand that men’s/fathers’ groups should meet higher evidential standards to support the changes they propose than the standards which previous changes in family law have had to meet.

Wendy Davis states comparatively uncontroversially that:(16)“The object of the DVA(17) is to reduce and prevent domestic violence by recognising that domestic violence in all its forms (our emphasis) is unacceptable behaviour….”

However, the three main approaches of Feminist(18) writers to the issue of female domestic violence are inconsistent with the DVA’s inclusion of all forms of domestic violence. They tend either to:

1. ignore it;(19)
2. mention it only in passing;(20) or
3. excuse it or downplay it in some other way.

Wendy Davis takes the third approach. She states, for example:(#21) “Some women are perpetrators of domestic violence, but there are differences in the type and degree of violence inflicted by women.”

We discuss the truth or falsity of this claim in another section, but, for now, we note merely that she goes on to explain that:(22):

Women’s violence to male partners certainly does exist, but it tends to be very different from that of men towards their female partners: it is far less injurious and less likely to be motivated by attempts to dominate or terrorise the partner.

I discuss the truth or falsity of the claim that female violence is less injurious than male violence in another section, but we note here that this is another attempt by Wendy Davis to downplay the significance of female violence.

As regards the motivation for male and female violence, I ask three questions:

1. Can we trust a Feminist to analyse the motivations of a male perpetrator objectively ?
2. What are the motivations of female perpetrators ?
3. Are their motivations somehow more noble than those of male perpetrators, so that we should ignore the spirit of the DVA and ignore or discount female violence ?

I would answer the above questions as follows:

1. As we saw above, Feminists tend to ignore female violence, mention it only in passing, or excuse it or downplay it in some other way. This makes it clear that their approach is not objective, so we can be confident that their approach to male violence will not be objective, either. The New Zealand Men's Rights Association (NZMRA)’s submission to the Law Commission on Women's Access to Justice(23) stated that the Feminist(24) Department of Justice's report on male-on-female domestic violence Hitting Home(25) was supposed to be followed up by studies on female-on-male and same-sex domestic violence, according to press reports. But when the NZMRA wrote to the then Minister of Justice about these planned studies, he replied: "... there will be no decision on further research on this matter until the findings of Hitting Home" have been fully considered."(26) It was the opinion of the NZMRA at the time that there would be no such follow-up studies, because the Ministry/Department of Justice is to all intents and purposes a Feminist pressure-group, and this prediction has been proved correct so far.
2. Wendy Davis does not discuss the motivations of female perpetrators, but research has found motives for female domestic violence such as not believing that their male victims would be injured or would retaliate, or wishing to engage their attention, particularly emotionally.(27)
3. It would be a controversial and (necessarily) subjective value judgement to discriminate between these various discovered and suggested motivations for domestic violence. It would be consistent with the DVA – as we saw above -- simply to regard all forms of violence as unacceptable.

A third double standard which Wendy Davis applies involves the type of evidence which she finds acceptable. She states that: (28)“Claims of bias against men have achieved some credibility, both in New Zealand and in other common law jurisdictions, despite the absence of empirical or qualitative data to support them.”

She also criticises(29) what she sees as the fact that many allegations of bias are founded on “individual stories, and unreliable or unsubstantiated statistics.”

I are willing to admit that it is difficult to provide convincing evidence of bias against men, but there are very good reasons for this.

1. There is virtually no institutional or financial support for pro-male, as opposed to anti-male research.
2. It is unrealistic to assume that everyone would agree that any particular decision, statement, or action was an instance of, or resulted from bias – i.e. there is a problem establishing intersubjective agreement on the basic data involved.
3. As is well-known, the Men’s/Fathers’ movement has been agitating for the complete opening up of the Family Court – precisely in order for such bias to be exposed more easily and convincingly. The fact that it is (still) largely a closed court makes Wendy Davis’ criticism of the nature of the evidence produced seem somewhat disingenuous. Is she arguing for the Family Court to opened up completely to the public, as well as to the media ? That would seems unlikely, given the tone of her article.

Crucially, however, Wendy Davis makes a mockery of her own criticism by herself commenting favourably on anti-male arguments based on individual stories, and by herself relying on individual stories, etc.. For example, she states:(30) “Section 16B of the Guardianship Act 1968 … reflects … the recommendations of Sir Ronald Davison in his report(31) on the killing of the Bristol children by their father in Wanganui in February 1994….”(32)

The case of the Bristol children was, of course, just an individual story, but it attracted wide publicity, as can be seen from the fact that a report was published about it.

She refers to increases in the numbers of women and children accessing Women’s Refuge services between 1998 and 2003, in a context that implies that this is evidence of an increase in male domestic violence during that period.(33) This is a very questionable assumption, since women entering Women’s Refuges do not have to prove (to any legally acceptable standard) that their male partner has been violent towards them, or that the women themselves did not initiate any violence that occurred, or that the women themselves had not been even more violent than the males involved, etc..

Wendy Davis also quotes this passage with apparent approval:(34)

“Women have reported that some judges have refused protections orders, questioning women’s motivations for applying when they had already been putting up with the violence for so long. Women said they were told that if the violence were actually serious, she (sic) would have applied for protection before this.”

Instead of relying on this sort of anecdotal evidence, it would be more helpful if she were to join with the Men’s/Fathers’ movement in calling for total openness in the Family Court, so that neither men’s groups nor women’s groups would have to rely on individual stories and unreliable statistics such as those mentioned above.

 

Unsubstantiated and false assertions

Wendy Davis states:(35)“Over the period 1998-2003 there has been little public consideration of the perspective of women.”

On the face of it, this statement is astonishingly counter-factual, and can only be explained by assuming that she thinks in terms of the total exclusion of a pro-male perspective as being the norm, or baseline, against which situations are measured. This mindset is indeed the dominant one in the legal profession, in which all institutions(36) adopt a Feminist activist stance. Here are a few counterexamples to her statement from my records.

• On Thursday 20 June 2002, on the TV One 6 O’clock News, TVNZ screened a propaganda-piece about the so-called “gender pay-gap” – as part of its continuing contribution to the long-term Feminist plan to re-introduce pay-parity legislation into Parliament. Instead of straightforwardly putting a Men’s Right activist opposite a Women’s Rights activist on this issue, TVNZ put a unionist (Phil Goulter), together with a disgruntled woman (probably a Feminist) onscreen, followed by the reported rebuttal of some unidentified employer(s). TVNZ almost never gives Men’s Rights spokesmen the right to rebut Feminist spokespersons on the News.
• On 26 December 2002 on the 6 O'Clock News on Television One, a Fathers' Rights activist was screened opposite a Feminist activist on the subject of Domestic Violence. This was heralded as a breakthrough,(37) but it has never been repeated, to the best of my knowledge.
• In 2003, The Hutt News published a supplement called "Life in Wainuiomata, Eastbourne, Petone, Moera, Alicetown & Western Hills", in which it allowed the Police to publish an advertisement which includes anti-male political propaganda and stereotypes.(38)
• On the 6 o’clock News on TV One on 5 August 2002, a New Zealand male weightlifter was described as relying on “pure strength”, whereas a New Zealand female weightlifter – lifting an obviously much lesser weight -- was subsequently described as relying on strength and technique. This is typical of the media’s Orwellian double-think on employment and sporting issues, where there is a political drive to compensate for the “mere fact” of most men being stronger than most women – while using it against men in the context of domestic violence.(39)
• On TV One's 6 o'clock News on 14th September 2003, a Feminist propaganda piece was screened, in which a Women's Refuge organisation used TVNZ as a mouthpiece for sexist and racist stereotypes about South Asian arranged marriages, Domestic Violence and suicides by wives. No statistics, rational argument, or balance was presented.

Wendy Davis quotes from the Law Commission’s report Some Criminal Defences with Particular Reference to Battered Defendants as follows: “It is incontestable… that the large majority of adult victims of serious domestic violence have been women and their abusers have been men….”

The only things that prevent the above statement from being a most blatant untruth are the words “incontestable” and “serious”. Feminists, universities, and the media are on the whole not interested in discussing female domestic violence against men, so it is almost impossible to get facts on this topic disseminated. In that sense, at least, it is (almost) incontestable that the dominant propaganda version of Domestic Violence(40) is true – it just cannot be contested in the public arena because of censorship by the media and the universities. And we have seen that Feminists typically play down the importance of female domestic violence, so, in their eyes, perpetrators of serious domestic violence must necessarily be men.

 

The “myth” myths

One characteristic of Feminist writing on Domestic Violence is the sprinkling around of the word myth as a substitute for reasoned argument. I have counted 11 occurrences of this word in Davis’ article (including the footnotes), and there are four occurrences of this word in the following paragraph:(41)

The stories that women act from bad motives and are prone to lying because of their gender are old, old myths in society and in the law. For example the judicial practice which required juries in rape and other sexual assault cases to be warned that it was not safe to convict on the uncorroborated evidence of the complainant was based on this myth. The continued promotion of these myths by the fathers’ rights movement is not surprising. What is surprising and of concern is the way in which these myths appear to continue to influence discussion about the law on domestic violence and custody and about gender bias in the Family Court.

It seems probable, but not totally clear, that Davis is claiming that women never lie or act from bad motives, but what is clear is that she provides no actual evidence that bears on this matter. We are just supposed to be satisfied by the repetition of the word myth that whatever she disagrees with is untrue. I am not aware that the fathers’ rights movement makes claims about women’s behaviour in general, and Davis gives no evidence or examples of such claims by any specific group or person. On the other hand, Kanin’s research(42) has shown that 40% of rape allegations were admitted to have been false, for the area and period that he studied.

It is an indication of the lack of academic rigour in Feminist writing that so many articles and books appear in print with this sort of low-level slanging-off in them. It is one thing for books and articles to use the word myth in their titles, and then to proceed to give evidence that something is a myth(43)– but it is quite another to use the word myth as if it constitutes a disproof in and of itself.

This unacademic slanging-off is inseparable from the totalitarian attitude to debate adopted by Feminazis(44). This low level of reasoning is only made possible by the intimidation carried out by Feminism as a political movement. Richard Gelles, for example, recounts the following anecdote(45):

A year or so later I was in the audience when my colleague Murray Straus presented the results of a study on which we had collaborated with Suzanne Steimetz …. The study included data on violence by women towards their husbands or male partners. Straus was unable to complete his presentation because the yells and shouts from members of the audience drove him from the stage. To even discuss female offenders, I was told later, could only undermine the case for battered women. Straus, who also considers himself a feminist, was, in his own words … “excommunicated” from the mainstream feminist community. He was rarely invited to speak at conferences on wife abuse, many of the speeches he gave were boycotted, and he has received threats, including death threats, over the past 15 years!

I have had similar experiences of totalitarian behaviour by Feminist law students and even by one law lecturer.(46) If you state something that Feminazis consider to be a myth in the so-called “academic” atmosphere of a modern Western university, you get shouted down, so most people are intimidated into just saying what they think they will be allowed to say. It is important to note that we do not live in “free” societies if such behaviour occurs in our universities, which are supposed to be the ultimate sources of the information we rely on to make our decisions as citizens of democratic countries.

 

Domestic violence research

Criticisms of the Conflict Tactics Scale

However, setting the words inconstestable and serious to one side, there is a huge body of evidence to the effect that female Domestic Violence is at least as prevalent as male Domestic Violence. The best resource for an overview of this evidence is Martin Fiebert’s annotated bibliography of Domestic Violence research.(47) This work, which is being continually updated, examines scores of scholarly investigations, empirical studies and reviews and/or analyses which demonstrate that women are as physically aggressive, or more aggressive, than men in their relationships with their spouses or male partners. The aggregate sample size in the reviewed studies is in the tens of thousands. Specifically New Zealand studies are listed there and elsewhere.(48)

There have been attempts to discredit these results by attacking the underlying methodology, which often relies on the Conflict Tactics Scale (CTS), which is a procedure involving the classifying and counting of types of behaviour. One such attack, The myth of sexual symmetry in marital violence by Dobash et al(49), is cited approvingly by Davis, who states, in that connection(50)“Claims that women are just as violent as men in domestic relationships are not supported by the literature”. This statement undermines her claim to intellectual honesty, however: it is one thing to attack the methodology that underlies a body of research, but it is quite another simply to ignore the vast body of research listed by Fiebert(51) as if it did not even exist !

The study by Dobash et al is a very thorough attack on the CTS, and I am bound, in the spirit of intellectual honesty, to take due note of its criticisms. They set out their basic position as follows:(52)

We shall argue that claims of sexual symmetry in marital violence are exaggerated, and that wives’ and husbands’ uses of violence differ greatly, both quantitatively and qualitatively….. The alleged similarity of women and men in their use of violence in intimate relationships stands in marked contrast to men’s virtual monopoly on the use of violence in other social contexts, and we challenge the proponents of the sexual symmetry thesis to develop coherent models that would account for a sexual monomorphism of violence in one social context and not in others.

This challenge constitutes their first argument against the CTS. Their challenge, however, is severely undermined by their failure to provide any evidence of what they call “men’s virtual monopoly on the use of violence in other social contexts”. They seem to rely, as so often happens in the politicised(53) field of Domestic Violence advocacy, on anti-male stereotypes.

A nuanced approach to violence would distinguish different types of violence -- violence that was linked to high alcohol consumption, for example, would be distinguished from that which occurred as a planned or unplanned accompaniment to an intrinsically non-violent form of crime. Such an approach would then find out what proportion of those indulging in alcohol abuse and intrinsically non-violence crime, etc, were males, and then work out separately what proportion of the males and of the females who indulged in these activites actually used violence. If, for example, alcohol abuse and intrinsically non-violent crime are in themselves male-dominated activities (as one might expect), then any violence resulting from such activities would very likely be male-dominated.

Such an analysis might well find that men carrying out such activities were not in fact more likely to use violence than women – indeed, as women are on average physically weaker than men, one might expect women to be more likely to use firearms than men, who would be more likely to be able to rely on physical, but less severe forms of violence. One may not think highly of men for indulging in alcohol abuse or intrinsically non-violent crime, but that is a different issue. So Dobash et al’s gendered analysis would resolve into an analysis of what sorts of activities men and women get involved in, and of how much violence attaches to those particular activities.

A second type of argument used by Dobash et al is even easier to dismiss – the argument based on evidence that men commit more Domestic Violence which involves data from courts, police, women’s shelters, divorce records, and hospital records. Women’s shelters are run by activists who cannot possibly be relied upon to provide impartial data for scholarly purposes, the courts and the police rely on people making complaints (and the Men’s/Fathers’ movement would claim that they are biased against men anyway), and divorce and hospital records rely on what people say happened in a non-anonymous context, where face-saving and many other factors may come into play. Indeed, Dobash et al themselves admit that “Self-reports of criminal victimization based on national probability surveys, while not without methodological weaknesses, are not subject to the same reporting biases as divorce, police and hospital records.”(54)

Methodological issues are central to this debate. Dobash et al report that “Gaquin’s (1977/78) analysis(55) of U.S. National Crime Survey data for 1973-1975 led her to conclude that men ‘have almost no risk of being assaulted by their wives’.” (56) However, they also state:

Brush (1990)(57) reports that a U.S. national probability sample survey of over 13,000 respondents in 1987-1988 replicated the evident symmetry of marital violence when CTS-like questions about acts were posed, but also revealed that women were much more often injured than men (and that men downplayed women’s injuries).

I will return later to the issue of injuries, but I would like to stress here the importance of the actual questions that are put to the respondents in any such research. As reported in Sex, Lies & Feminism(58), the 1996 New Zealand National Survey of Crime Victims(59) used a questionnaire(60) that did not ask men and women simply whether:

1. Any partner ever actually used force or violence on you, such as deliberately kicked, pushed, grabbed, shoved you or hit you with something; or
2. Any partner ever threatened to use force or violence on you such as threatened to kick, push, grab, or shove you; or
3. Any partner ever deliberately destroyed or threatened to destroy your belongings.

Instead of those straightforward question, the questionnaire asked whether:

1. Any partner ever actually used force or violence on you, such as deliberately kicked, pushed, grabbed, shoved you or hit you with something in a way that could hurt you; and
2. Any partner ever threatened to use force or violence on you such as threatened to kick, push, grab, or shove you in a way that actually frightened you; and
3. Any partner ever deliberately destroyed or threatened to destroy your belongings in a way that frightened you.

The bias against men responding positively is immediately obvious, since men are socialised to downplay fear and to be relatively insensitive to pain. This was confirmed by data from another table(61) in the very same survey, which showed that 50.5 percent of women, as compared to only 31.4 percent of men, reported experiencing fear when on the receiving end of a violent offence. So the results of this survey are useless as evidence of the comparative incidence of Domestic Violence committed by women, as compared to men. The different results reported by Gaquin(62) and Brush(63) point to the possibility that it was questions similar to the above which produced the apparently large differences between male and female domestic violence rates found by the former.

Dobash et al mention(64) findings(65) that men do not report being assaulted by their wives (e.g. to the police) to the same extent as women report being assaulted by their husbands. This is one suggested explanation for the different results thrown up by the different sorts of data that we have been discussing. In refutation, they cite Schwartz’s finding(66), based on an analysis of the 1973-1982 US National Crime Survey data, that proportionately even more men than women reported being victims of domestic violence. However, as we have seen, much depends on the questions that subjects had been asked. If the questions had concentrated attention on assaults that were subjectively “serious”, for example, then that would possibly have produced results different from those that would have been produced by questions that focused on all forms of assault. Men who are prepared to admit to having been subjected to “serious” spousal assaults are prima facie relatively likely to have reported them to the police.

Fiebert(67) cites Brown Gender as a factor in the response of the law-enforcement system to violence against partners(68) as stating that ". . . men who are involved in disputes with their partners, whether as alleged victims or as alleged offenders or both, are disadvantaged and treated less favorably than women by the law-enforcement system at almost every step." If that is the case, and it certainly accords with anecdotal evidence from many countries, then there is little incentive for men to report domestic violence by their partners to the police. Indeed, all the relevant high-profile publicity surrounding domestic violence in New Zealand concentrates on getting women to report domestic violence – the very idea that men should do so is never alluded to, so men are hardly likely to feel encouraged to do so.

Dobash et al report a large number of other criticisms of the CTS method that others have made:(69)

Critics have complained that its exclusive focus on “acts” ignores the actors’ interpretations, motivations, and intentions; that physical violence is arbitrarily delimited, excluding, for example, sexual assaults and rape; that retrospective reports of the past year’s events are unlikely to be accurate; that researchers’ attribution of “violence” (with resultant claims about its statistical prevalence) are based on respondents’ admitting to acts described in such an impoverished manner as to conflate severe assaults with trivial gestures; that the formulaic distinction between “minor” and “severe violence” (sic) (whereby, for example, “tried to hit with something” is definitionally “severe” and “slapped” is definitionally “minor”) constitutes a poor operationalization of severity; that the responses of aggressors and victims have been given identical evidentiary status in deriving incidence estimates, while their inconsistencies have been ignored; that the CTS omits the contexts of violence, the events precipitating it, and the sequences of events by which it progresses; and that it fails to connect outcomes, expecially injury, with the acts producing them….

This is an impressive list of criticisms. However, we have to recognise that the CTS is not intended (or able) to do everything that researchers in the field might want to do. Other methodologies will still have their place, in the context of other research goals. In the context of what the CTS sets out to do, and of what it can reasonably be expected to achieve, some of the above criticisms can actually be interpreted as compliments – especially with regard to the elimination of subjective interpretation on the part of researchers in a highly politicised field. Personally, for example, I might be able to trust the results produced by a Feminist researcher using the relatively objective CTS method, but not the results produced by the same Feminist using a method that allowed him/her to draw conclusions about “the actors’ interpretations, motivations, and intentions,” because (as we have seen) the focus of most Feminist researchers in Domestic Violence research is on the male as perpetrator and on the female as victim, and I would suspect that the latter method allowed plenty of scope for this bias to influence the results.

1. Considering the cited criticisms one-by-one, I would commend the CTS method precisely because it ignores “the actors’ interpretations, motivations, and intentions,” since these are not strictly relevant to the issues of who commits the violence, how much is carried out, and what type of violence is committed. This does not prevent other research methods from addressing “the actors’ interpretations, motivations, and intentions,” though any method which incorporates a model (such as the Power & Control model) which simply assumes that males are more violent or are violent from “more evil” (as subjectively assessed) motives must be seen as sexist, discriminatory and unscientific.
2. As to the second criticism listed above, it is not at all “arbitrary” to exclude sexual “assaults” and rape. Despite the fact that Feminsts have tried to recategorise sexual crimes as assaults, these crimes have, by definition, a sexual element, and to exclude them is by definition systematic, rather than arbitrary. In addition, the word “rape” is sexist and anti-male (since it requires the perpetrator to have a penis), by comparison with terms such as “sexual violation”, which include rape in a gender-neutral way.
3. The third criticism, as to how reliable memories of a whole year’s activites can be, seems prima facie to have merit, but I do not know to what extent CTS studies rely on such long-term memory or whether research has been carried out on the reliability of such memories.
4. The fourth citicism, that the CTS conflates severe assaults with trivial gestures, is bound to be a feature of any Domestic Violence research, since it is a matter of interpretation (by the respondent or by the researcher) what counts as “trivial”. So it is not clear that this problem can be avoided by using a different methodology. Moreover, given the emphasis by Feminist researchers on male violence, there is a danger that using another methodology would open the door to Feminist researchers classifying most female violence as “trivial” and most male violence as “severe” -- especially if they import into situations their pre-judgements about male and female motivations.
5. The fifth criticism is similar, and may be justified, but it may be unavoidable.
6. The sixth criticism is unhelpful, in that it would be arbitrary to classify the parties into “aggressors” and “victims” – expecially if psychological violence is recognised as a phenomenon – unless a foolproof definition of these terms was available. Any such classification would require judgement-calls by the researchers, and they might well be biased by a prior theoretical focus on the male as perpetrator. If the term “aggressor” was interpreted as meaning “initiator”, this might be viable if the research was restricted to physical violence, but it would be unworkable if psychological violence was included, because of the difficulty of defining the latter.
7. The criticism that “the CTS omits the contexts of violence, the events precipitating it, and the sequences of events by which it progresses” is not relevant, since I would see it as a strength of the CTS that it omits these other issues. The CTS concentrates on the frequency and nature of the events and on the perpetrators, and it needs to abstract away from other features of the situation in order to do this properly. Nothing prevents other research methods from examining the contexts etc., but it must be emphasised that experimenter bias is more likely when such issues are included.
8. The final criticism listed by Dobash et al(70) is “that it fails to connect outcomes, expecially injury, with the acts producing them….” It is a feature of Feminist approaches to Domestic Violence that injuries receive a special focus. I will discuss this as a separate issue below.

I have been discussing, above, the criticisms of the CTS which Dobash et al report other writers as making. Now we turn to criticisms of CTS reliability, validity and interpretation that Dobash et al develop as their own, largely original contribution to the debate. They report that Szinovacz(71)“found that 103 couples’ accounts of the violence in their interactions matched to a degree little greater than chance.” They go on to state:(72)

Consider the case of child abuse by stepparents versus birth parents. In various countries, including the United States, a stepparent is more likely to fatally assault a small child than is a birth parent, by a factor on the order of 100-fold …; sublethal violence also exhibits huge differences in the same direction…. Using the CTS, however, Gelles and Harrop (1991)(73) were unable to detect any difference in self-reports of violence by step- versus birth parents…. One must be concerned, then, whether this sort of bias also arises in CTS-based comparisons between husbands and wives.

We cannot expect CTS to be a perfect methodological tool. We have to be aware of its limitations, as well the limitations of alternative tools. The main value of CTS is in its reporting of the proportions of violence inflicted by each of the partners in a relationship. It can hardly be surprising that the partners do not agree in detail as to who did what to whom on each occasion. That is the norm for any conflict situation, where each party, in their own minds, tends to exaggerate the violent actions of the other party and minimise their own violence(74). It is quite normal for the person doing the striking to be less aware of the strike’s impact than the person being struck is. However, it is significant that the CTS consistently comes up with the same global picture: both partners report their over-all violence to be roughly equal.

Szinovacz’s study reportedly involved only self-reporting, as opposed to the mutual reporting that is common in CTS Domestic Violence studies, so it is not strictly comparable. As I suggested above, each partner will tend to under-report their own violence, so the reports of the other partner are important as a corrective to this natural bias. It is also noteworthy how uncritical Dobash et al are with respect to the studies which purportedly demonstrate that stepparents are more violent than birth parents, given the high standards of methodological purity they expect of CTS-based studies ! There are a lot of questions I might ask with respect to how these studies reached their conclusions, despite the fact that I am biased in favour of research results that favour birth-parent-based families over stepparent-based families(75).

Dobash et al also take issue with the interpretation of CTS responses. I think they are right to point out that, since the CTS term “severe violence” may well include such actions as throwing something at a spouse, one cannot just translate it as “beating” or “battering”, as they say has in fact been done.(76) Domestic Violence research is carried out in an academic atmosphere permeated by terms such as “battering”, so it is natural that CTS researchers might feel tempted to translate their findings into these terms. However, I do not think that the term “battered” is either well-defined or useful, and it is best ignored. It originated in the context of a political attempt to blacken the image of men and excuse negative female behaviour, so its use is antagonistic to any attempt to reduce or eliminate all forms of Domestic Violence.

However, Dobash et al are on shakier ground when they go on to state:(77)

Consider a “slap”. The word encompasses anything from a slap on the hand chastizing a dinner companion for reaching for a bite of one’s dessert to a tooth-loosening assault intended to punish, himiliate, and terrorize. These are not trivial distinctions; indeed, they constitute the essence of definitional issues concerning violence. Almost all definitions of violence and violent acts refer to intentions. Malevolent intent is crucial, for example, to legal definitions of “assault”….

I will start with the second half of this excerpt, and point out that it appears to be totally untrue. I am not aware of any definition of violence or of violent acts – legal or otherwise – that refers to types of intentions, such as intentions to “punish, himiliate, and terrorize”. Of course, an assault must be intentional, as opposed to accidental, but that does not distinguish between a slap on the hand and a more serious assault. Neither the New Zealand Criminal nor Civil law definitions of “assault” or “battery” (to which we will return later) refer to types of intentions. Dobash et all cite no authority for their contention, and I do not know what legal jurisdiction(s) they have I mind, but neither UK(78) nor US(79) law refer to types of intentions in its definition of “assault” either, according to the legal dictionaries that I have consulted.

As regards the first half of the excerpt, I do not believe that the repeated Feminist references in the Domestic Violence literature to (male) intentions to “punish, himiliate, and terrorize”, etc. represent anything more than discriminatory fantasies, based either on the Power and Control model or on generalised cultural man-hatred. The website of the parliamentary Inquiry to Review New Zealand’s Constitutional Arrangements(80) states that(81)‘A constitution, some consider, is made up of “the structures, processes, principles, rules, conventions and even culture that constitute the way in which government power is exercised”’, so it is relevant to inquire whether in fact man-hatred has become part of New Zealand culture, and hence part of its constitution. My impression is that other Western countries are similar in this regard.

I will give four examples of what I consider to be man-hatred as regards Domestic Violence – one from the police, two from the Family Court, and one concerning a Men’s Rights activist, who should have known better, one would have thought. Some of these examples are necessarily anecdotal in nature.

The first example is described in my book, Sex, Lies & Feminism, as follows:(82)

On November 19th 1999, I went to see Mr. J. J. Taylor, Family Violence Prevention Coordinator at Police national headquarters, Wellington, New Zealand. I asked to see the Police Commissioner himself, but was put on to Mr. Taylor as the most appropriate person for the topic that I wanted to discuss.
The reason I decided to talk to the police about this issue (I had been working in the same building that housed the police national headquarters for 12 years) was that I had just come across the Fiebert Bibliography …..(83)
I handed him a copy of the Fiebert bibliography, then spoke about the six (minor) workplace assaults I had been the victim of over the past 12 years at the hands of three females – just four floors above where we were sitting (I didn't mention the sexual harassment or intimidation I had suffered in addition to those straightforward assaults). He covered his mouth with his hand as if he was covering an itch to smile. Certainly, the expression in his eyes suggested he was smiling! And I must admit my own instinctive reaction is also to smile when hearing about female assaults on males …, but it was significant to see this reaction from someone in his position in the field of domestic violence….
Then Mr. Taylor mentioned the … New Zealand survey on this topic – "Findings About Partner Violence" by Moffitt, Caspi and Silva (1996)(84), which showed the same thing as the overseas studies – that women hit men at least as often as men hit women.
However, … this is where Mr. Taylor came out with his most telling statement. I can't quote him verbatim, but what he said was more or less that you can't just count "hits" in that way, and that, in one case referred to by Moffitt (et al), the woman had kicked the man because he was holding her by the throat. The implication was, of course, that she was acting in self-defence.
So I asked Mr. Taylor why the man had held the woman by the throat, but he just replied, "Because he was assaulting her !"

The point here was that it had obviously never occurred to Mr. Taylor that the man might have had a reason – a provocation, even – for having grabbed her by the throat. He had excused the woman’s kicking of the man by the fact that he was holding her by the throat, and there the matter rested, as far as he was concerned. The psychological, and probably the political, need was to find a reason for the woman’s action, and thus a reason to put the blame onto the man.

The first Family Court example comes from a public relations documentary about the Family Court that the Family Court itself prepared for screening on television. I wrote to then Principal Family Court Judge P D Mahoney about it after seeing it. Here is the relevant excerpt from my letter:(85)

The Domestic Violence case was one where a Polynesian man was representing himself in court – presumably because he couldn't afford a lawyer. He was objecting to having to go on an "Anger Management" course – where anti-male Male Feminists would attempt to teach him that he was to blame for anything reprehensible that occurred between himself and any female in his vicinity. In the end, being an ordinary, individual, rather than a lawyer, he was not able to withstand the anti-male pressure that was applied to him by Judge Adams, and was forced to agree to go on the course.

After listening to the man's opening statement, Judge Adams summarised his affidavit as saying that the man had had to put up with a lot himself as well (from his ex-girlfriend). Then the Judge said, "I guess that implies that you got out of control." That is an example of gross anti-male bias on the part of Judge Adams. The point of the man's testimony was that his ex-girlfriend had been guilty of psychological and/or physical abuse, and therefore either they should both be punished or neither of them should be.

The second Family Court example comprises the following quotation from New Zealand Family Court Judge K G MacCormick(86):

That more women seek (protection orders) is no doubt (my emphasis) because men are generally physically stronger and more inclined to try to resolve disputes by the use of physical force.

It is not just that the Judge was arguably utterly wrong, as we have seen, and it is not just that such anti-male stereotypes and prejudices are grossly oppressive towards men and destructive of families. The most striking point is that the learned Judge did not feel the need to refer to anything remotely resembling evidence before making a statement like that, and (possibly) basing his judgement on it.

The final example in fact involves the very Men’s Rights activist(87) who alerted me to the existence of Davis’ article(88), and to the possibility of publishing a reply to it. He invited me to his house to discuss a reply to Davis’ article, and he had, unbeknownst to me, arranged for a female acquaintance(89) of his to telephone me there to give me the benefit of her comments on it. In the course of this telephone conversation, I stated my opinion that Domestic Violence never occurred in a vacuum – that no man ever hit a woman, for example, without some sort of provocation, although whether the provocation was sufficient to justify the hitting was a different issue altogether. She made no comment or other audible reaction to my statement. After giving me her comments (which I did not promise to use), she gave me her telephone number.

After that conversation, the Men’s Rights activist told me that she had been a battered woman, and then we discussed aspects of the article. Since I do not just accept someone’s say-so that someone was a so-called “battered woman”, with all the implications of exclusive innocence on her side and exclusive guilt on her partner’s side that that term implies, I raised that issue again with the activist. I started to ask him about her, by saying, “You said that she was a battered woman,” but I was unable to finish my sentence, because he interjected “Definitely !” “Oh,” I said, surprised at his being so emphatic, “So you’ve discussed it with her husband ?” He looked sheepish, and admitted that he hadn’t, so I told him that he wasn’t part of the solution – he was part of the problem. Later, I telephoned the woman, and asked her if she had really been a battered woman, but she was reluctant either to describe herself in those terms or to let me talk to ex-husband. It is fundamental to Natural Justice for both parties to a dispute to be given a fair hearing, but it seems to me that the typical scenario in Domestic Violence cases is that it is psychologically a near-impossibility for any male protagonist to get a fair hearing.

The cultural man-hatred that permeates Western countries must be borne in mind when considering comments such as the following by Dobash et al:(90)

Studies employing more intensive interviews and detailed case reports addressing the contexts and motivations of marital violence help unravel the assertions of those who claim the widespread existence of beaten and battered husbands. Research focusing on specific violent events shows that women almost always employ violence in defence of self and children in response to cues of imminent assault in the past and in retaliation for previous physical abuse…. Proponents of the sexual-symmetry-of-violence thesis have made much of the fact that CTS surveys indicate that women “initiate” the violence about as often as men, but a case in which the woman struck the first blow is unlikely to be the mirror image of one in which her husband “initiated”. A noteworthy feature of the literature proclaiming the existence of battered husbands and battering wives … is how little the meager case descriptions resemble those of battered wives and battering husbands…. Especially lacking in the alleged male victim cases is any indication of the sort of chronic intimidation characteristic of prototypical woman battering cases.

The above claims have no credibility, as far as I am concerned. It is obvious that using intensive interviews and detailed case reports would give free rein to the political and other biases of the researchers. It is clear to me that researchers who were as pro-men as most researchers are pro-women would find that men also “almost always employ violence in defence of self and children in response to cues of imminent assault in the past and in retaliation for previous physical abuse.”

I have no doubt that it is true to say that the case descriptions of battered husbands and battering wives do not resemble much those of battered wives and battering husbands – for the simple reason that there is (as yet) no male equivalent to the politicised man-hatred that characterises Feminist research into Domestic Violence. It would be a simple matter for me, for example, to parody the style of such “research” by interviewing battered men and using the techniques employed by Feminists such as Professor Walker.(91) An understanding of the nature of this sort of “research” can be gained from the following excerpt from a review of one of her works:(92)

The Battered Woman is unsatisfactory as a serious work, and completely unacceptable as a foundation for family law. First, it is profoundly unscholarly. Without objective verification of the incidents herein described, they are nothing more than hearsay. Second, the book does not even pretend to be objective: the woman's side, and only the woman's side, is presented, when it is undeniable that in a large percentage of cases, the woman initiates violence against the man. Third, Prof. Walker's expanded definition of "battering" that includes verbal abuse does not even address the issue of female verbal abuse of men. Fourth, there is no reason whatsoever to believe that Prof. Walker's sample of "battered women" is in any way a representative sample, and even if it were, she presents no statistics to support her conclusions. In fact, most of her conclusions are utterly unsupported by any kind of data, and are simply pronounced ex cathedra.

I do not believe in the reality of the claimed phenomenon of “chronic intimidation characteristic of prototypical woman battering cases”. Given the research methods outlined above, the political bias of the researchers, and the psychological inability of almost anyone in the Western world actually to ask for and obtain from a male involved in a Domestic Violence situation his own point of view in depth, all such cases of “chronic intimidation” are probably nearer to pure fiction than to any other form of writing.

Dobash et al conclude by mentioning homicides and what they call the “need for theory”. I do not propose to discuss homicides, because I consider them a separate issue – no one could claim that an intentional homicide, for example, is an example of intimidation. I dispute their claim that what the field of Domestic Violence research needs is more theory. Anyone acquainted with the Philosophy of Science and/or with the process of university research knows how easy it is to formulate a hypothesis (especially in the Social Sciences), and how hard it is to produce evidence that will convince the creator of any hypothesis that they should abandon it. That is why, in a politicised area such as Domestic Violence research, what we need is more facts and less theory. Her Honour Judge Jan Doogue, in her paper Domestic Violence: Reviewing the Needs of Children, provides a reality check, by stating (93):

The Domestic Violence Act 1995 and s. 16B of the Guardianship Act 1968 were based on the classification of violence within the power and control model. In my experience and that of other Judges this model does not fit the profile of many cases coming before the Family Court in New Zealand.

In conclusion, it seems to me that the CTS certainly does have problems, but they are not as serious as Dobash et al make them appear to be. In particular, the problems are not such as to support Davis’ exaggerated statement that(94)“Claims that women are just as violent as men in domestic relationships are not supported by the literature”. In addition, any criticisms of the CTS have to be considered in the context of the available alternative methods – indeed, many, if not all, of the criticisms appear to have been made by proponents of other methodologies, and even by politically motivated proponents of specific results, which their favoured methodologies, being liable to subjective researcher input, are able to provide for them.

 

The Focus on injuries

One of the most salient features of Feminist writing on Domestic Violence is the emphasis on injuries or being hurt. We have seen it in connection with Brush’s research(95), the 1996 New Zealand National Survey of Crime Victims(96), and the criticisms of the CTS reported by Dobash et al(97). A cynic might connect this with the Feminist focus on the male as perpetrator and the female as victim, because males are generally stronger than females, and thus the injuries suffered by females in Domestic Violence might be predicted to be more severe(98). There is evidence that women actually cope with pain less well than men do(99), but I do not think it would be equitable to create a double standard for this reason.

Section 2(1) of the Crimes Act 1961 defines “assault” in a way that omits any mention of actual hurt or injury. Similarly, in Civil Law, the tort of “Battery” requires no actual hurt or injury. In Cole v Turner(100), Holt CJ stated that “the least touching of another in anger is a battery.(101)” Consequently, there seems to be no legal need for this focus on injuries.

From the point of view of the stronger party, it is grossly unjust to treat violence that produces little or no physical injury as irrelevant. Why should the stronger party simply have to put up with psychological or minor physical violence, on the grounds that, if they retaliated, the injury that they inflicted might be more severe ? That would amount to a carte blanche for the weaker party to indulge in Domestic Violence ! In fact, it is possible that this is the situation that actually exists today in Western countries, because of the dominance of Feminist policies in the area of Domestic Violence law enforcement. Arguably, women are more “gifted” at psychological violence, which makes it more likely that men would have to retaliate to psychological violence with physical violence.

 

The New Zealand legal framework

Davis correctly states that the DVA in part reflects the “Power and Control” model (102), a model which has never been empirically proved to be an accurate reflection of the behaviour that the DVA is supposed to be addressing. Davis provides no evidence for the validity of that model. She explicitly blames men for all serious violence(103), which is arguably negligent and defamatory, since she provides no evidence that all serious violence is committed by men.

To disprove this, all one would have to provide is one counter-example, so I refer the reader to the following news story (104): ”Woman Nearly Rips Off Husband's Testicles in Domestic Spat”(105). Of course, Davis could reply that she meant that most serious violence is committed by men, but she wouldn’t allow me to call a woman a “chairman” on the grounds that most so-called “chairpersons” are male, so why should her much more damaging sexism be permissible ?

Reading between the lines of Davis’ article, one can see what alternative models there might be for Domestic Violence. She refers to one aim of the DVA being to limit the discretion of judges to apply “a no-blame orientation to the resolution of family disputes”, to adopt a “’two to tango’ analysis of domestic violence”, or to impose a requirement for mediation in domestic violence cases.(106)

Davis claims that such models are not based on “reliable research”(107). However, she gives no definition or characterisation of what makes research “reliable”. We have seen that the Feminist Domestic Violence lobby has been prepared to accept as being reliable the grossly unscientific writings of Professor Walker (108), so we are in a position to speculate that, for Davis, “reliable” just means “which gives the correct, Feminist results”.

 

Ex Parte Protection orders and the Bill of Rights Act (BORA)

Davis cites an article by Edward Clark(109) as evidence for the claim that “Academic writing does not support the view that the law about without-notice protection orders is fundamentally unfair to respondents.” Clark only considers one section of BORA – section 27(1), which has to do with natural justice. He takes at face value the Feminist literature on Domestic Violence and seems to be totally unaware of the huge body of non-Feminist research on the topic.

In response to his paper(110), however, I have argued that Ex Parte Domestic Violence Protection Orders (EPDVPOs) prima facie breached several sections of the Bill of Rights Act 1990 (BORA).

 

Do EPDVPOs breach BORA ss 13, 17, 18 and 25 ?

BORA section 25 (on minimum standards of criminal procedure) states:

Everyone who is charged with an offence (my emphasis) has, in relation to the determination of the charge, the following minimum rights:....

Technically, at least, EPDVPOs do not result from someone being charged with an"offence", as such, so this might seem to rule out applying s. 25 to EPDVPOs. However, constitutional enactments such as BORA are typically interpreted purposively and generously (111). For example, in interpreting the word "interpreter" in BORA s. 24(g), the High Court in Alwen Industries Ltd. v Collector of Customs (112)held that "to restrict interpretative assistance to the spoken word would rob the right of its true force."

It is true that in Drew v Attorney General(113), the majority did not find it necessary to decide whether to take a broad or narrow approach to the meaning of the word "offence"in BORA ss. 24 & 25, but in Darmalingum v The State (114), the Privy Council held that a purposive and generous interpretation of the word "charged" in s.10(1) of the Mauritian Bill of Rights was required.

Moreover, apart from restricting the respondent's freedom of movement (BORA s. 18) and freedom of association (BORA s.17) by limiting their ability to approach or contact the applicant, EPDVPOs can often result in other restrictions on their freedom, by limiting their rights in relation to firearms (DVA s. 21), by directing them to attend a demeaning Feminist programme of anti-male indoctrination, based on the power and control model (DVA s. 32 -- interfering with their BORA s. 13 right to freedom of thought, conscience, and religion), and by causing them to pay a fine or to be imprisoned if they breach the EPDVPO ( DVA s. 49). Breaching an EPDVPO is in fact described as an "offence" in s. 49, and this strengthens the case for considering the behaviour that the respondent was initially accused of by the applicant to be the equivalent of an offence.

If that behaviour crosses the threshold to be considered an "offence", it is apparent that there is a prima facie breach of BORA s. 25 subsections (a), (b), (c), (d), (e), and (f). They read as follows:

1. Minimum standards of criminal procedure --
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(a) The right to a fair and public hearing by an independent
and impartial court:
(b) The right to be tried without undue delay:
(c) The right to be presumed innocent until proved guilty
according to law:
(d) The right not to be compelled to be a witness or to
confess guilt:
(e) The right to be present at the trial and to present a
defence:
(f) The right to examine the witnesses for the prosecution
and to obtain the attendance and examination of
witnesses for the defence under the same conditions
as the prosecution:....

As is well known, Family Court sessions are not public, and whether they are fair -- as well as the related issue of whether the court is impartial -- is a matter of heated political controversy. A delay of 42 days (115) is arguably undue, seeing that it involves a restriction on one parent's right to associate freely with his children. This often occurs at a crucial juncture, when the other parent may be trying to alienate their affections from him, and when Family Court proceedings might result in a de jure confirmation of the other parent's de facto sole custody, on the grounds that it would unsettle the children to change their custodial arrangements.

It may well be that mothers are misusing EPDVPOs to achieve that result, and – whether or not that is the case -- it should be a concern that this option is open to them and their lawyers. Lawyers have to make a profit in a competitive business, and if they can provide a desirable result for their clients by giving this sort of advice, they can not be criticised unduly for doing so. The solution would be to remove that legal option.

By no stretch of the imagination does the EPDVPO process involve the respondent being proved guilty -- yet a penalty can be imposed on him, which presumes that he is guilty. This is an issue I will return to in connection with the right to justice (BORA s. 27). Being compelled to attend a non-violence programme is tantamount to being compelled to confess guilt. By definition, an Ex Parte hearing -- except in the Pickwick variation (which allows the other party to be present, but at extremely short notice) -- involves the absence of the respondent. Because he is absent and is not represented at an EPDVPO hearing, the respondent cannot call or examine witnesses. Of course, the applicant does not call or examine witnesses either, but it is arguable that the seriousness of the jeopardy requires at least the ability of the respondent to file a statement of defence and affidavits from at least one witness (e.g. himself).

The freedom of movement (BORA s. 18) that is impacted upon by an EPDVPO is typically the freedom to go to one's own home, which is one of the most severe forms of restriction on one's freedom of movement that could possibly be imposed. Similarly, the freedom of association (BORA s.17) that is impacted upon by an EPDVPO is typically the freedom to associate with members of one's own immediate family, which, again, is possibly the most severe form of restriction on one's freedom of association that could possibly be imposed.

The interference with one's BORA s. 13 right to freedom of thought, conscience, and religion that is involved in being compelled to attend a Power-and Control-model-inspired non-violence course (when one might have been less violent than one's partner, or even not been violent at all) affects the core value of the Bill of Rights: the inherent dignity of the individual.. It is one thing for Feminists to invent and propagate in universities, etc. -- at taxpayer expense -- a sexist model of Domestic Violence that treats men as guilty by virtue of their sex, but it is quite another thing entirely to force men to accept this as the truth by judicial fiat, when it could be contrary to their knowledge of the facts and/or to their personal religious or ethical beliefs.

The case is overwhelming, in my opinion, that EPDVPOs involve a prima facie breach of BORA ss. 13, 17, and 18. Moreover, provided that being a respondent to an EPDVPO crosses the threshhold to being considered "charged with an offence", the case is also overwhelming that EPDVPOs involve a prima facie breach of BORA ss. 25(a), 25(b), 25(c), 25(d), 25(e), and 25(f).

 

Do EPDVPOs breach BORA s 19(1) (on sex discrimination) ?

It is clear that most respondents are male. Table 3 of the Ministry of Justice's Domestic Violence Act 1995 Process Evaluation (116), for example, lists 41 male respondents and only two female respondents. The report states:

Few male applicants, and in particular gay men, are yet using the Act. In the experience of lawyers who have prepared applications for men, as well as court staff who have processed applications and judges who have decided on them, male applicants are not disadvantaged when applying under the Act, but rather they are reluctant to apply. Social taboos, stigma, shame and embarrassment can make it difficult for men to apply for an order. Some men believe that the court system is biased towards women, and that their experiences will not be taken seriously.

The comments about social taboos, stigma, shame and embarrassment may well be correct. However, it is undeniable that the Family Courts are in fact biased against men, given such statements as the following, by Family Court Judge K G MacCormick: (117)

That more women seek (protection orders) is no doubt (my emphasis) because men are generally physically stronger and more inclined to try to resolve disputes by the use of physical force.

The above dogmatic statement was made without reference to any supporting evidence whatsoever.

In addition, the programmes that male respondents are told by the Court to attend inculcate the Power and Control model, which is a sexist and discriminatory model.

So EPDVPOs, as implemented in practice, involve prima facie breaches of s. 19(1). This cannot be rectified by amending the DVA, of course, but it is a real issue nonetheless. The amount of discrimination involved could be lessened by making sure that the Power and Control model is not used as the basis for any of the programmes, and by mounting publicly-funded campaigns ecouraging men to report their partners’ Domestic Volence to the Police. That presupposes, of course, that the Police are trained to treat complaints from males seriously. It is hard to believe that they do, however, when Police recruitment policies involve double standards as regards the physical standards that male and female recruits have to meet. Before men can believe that the Police are not anti-male, therefore, these double standards will have to be eliminated, so that Police culture is no longer infected with the corrupting reality that there is one law for women and a harsher law for men.

 

Do EPDVPOs breach BORA s 27(the right to justice) ?

BORA s. 5 states:

Justified limitations -- Subject to section 4 of this Bill of
Rights, the rights and freedoms contained in this Bill of Rights
may be subject only to such reasonable limits prescribed by law
as can be demonstrably justified in a free and democratic
society.

With regard to the impact of that section, Rishworth et al.(118) state:

The decision as to the requirements of natural justice in particular circumstances both defines and limits the right without recourse to s.5. Although in theory a failure to meet the minimum requirements of natural justice might be justified pursuant to s. 5, in practice this is unlikely to occur.... Where its principles apply there is no room and no need for the operation of s. 5.

Clark's finding of a breach by EPDVPOs of BORA s. 27 is limited to the following ground: (119)

It usually takes weeks longer than the required 42 days for the Family Court to hear a respondent, meaning that their right to be heard is deferred for an unacceptable period of time, breaching their right to natural justice under s 27 of the NZBORA.

I agree with his reasoning, as far as it goes. However, Rishworth et al. mention (120)that there is considerable overlap between s 27 and ss. 23-25. Accordingly, I would submit that the issues I raised in connection with s. 25 (above) would also be grounds for considering EPDVPOs to be a prima facie breach of BORA s 27.

In addition, the considerations I will raise (below) in connection with BORA s. 22 could also arguably be raised in connection with s. 27.

 

Do EPDVPOs breach BORA s 22(the right not to be arbitrarily arrested or detained) ?

BORA s. 22 reads as follows:

1. Liberty of the person -- Everyone has the right not to
be arbitrarily arrested or detained.

Clearly, the initial effect of an EPDVPO is not to arrest or detain the respondent. However, DVA s. 49 provides for "imprisonment for a term not exceeding 6 months or to a fine not exceeding $5,000" (or imprisonment for up to 2 years for certain categories of repeat offenders) for failing to comply with the terms of an EPDVPO or of a direction to attend a programme. So, if, in a given case, an EPDVPO can be said to have been imposed arbitrarily, and the respondent subsequently receives a prison term under DVA s. 49, I submit that he has been arbitrarily arrested and detained in terms of BORA s. 22.

The next question, then, is whether there is scope for the arbitrary imposition of an EPDVPO under the DVA. This is the point at which words almost fail me, because of the sheer scale of the breach that is involved, and because of the fact that it appears to have attracted no public criticism.

DVA s. 13 (2) reads:

13. Application without notice for protection order -- (1) ....
(2) Without limiting the matters to which the Court may have regard when
determining whether to grant a protection order on an application without
notice, the Court must have regard to --
(a) The perception (my emphasis) of the applicant or a child of the applicant's family, or
both, of the nature and seriousness of the respondent's behaviour; and
(b) The effect of that behaviour on the applicant or a child of the
applicant's family, or both.

This subsection seems to me to be unprecedented. Courts routinely have to determine what the objective facts of a case are. In criminal cases, they also routinely have to determine what was going on in the mind of the alleged perpetrator at the time of the alleged crime, in relation to the mens rea elements of the crime, if such is present in the relevant statute. All that is reasonable, since a person has control over his acts (with certain exceptions), and can reasonably be held to account for his own intentions, negligence, or recklessness, etc.

But to be subject to a court sanction -- which may be converted into a fine or imprisonment if one does not comply with its terms -- because of what goes on in the mind of another person is such an unreasonable assault on the inherent dignity of the individual that even the Third Reich(121), that archetype of crimes against humanity, did not go so far in its inhumanity to man. This modern, Feminist, New Zealand provision is certainly arbitrary, but that word does not do it justice – one would surely have to employ a much stronger term here. Just as Nazi Germany was captured by an agenda that included hatred of Jews, so New Zealand has been captured by an agenda which includes hatred of men. Neither Jews nor men are utterly blameless, but to subject men to a regime whereby their liberty is subject to what goes on in the mind of their partner can only be described as the political fulfilment of a psycho-sexually Lesbian(122) fantasy.

 

Are EPDVPOs "essential" ?

The proposition that EPDVPOs are essential, which was argued by Clark, relates principally to BORA s.5. If EPDVPOs are held to be essential, then they may be considered to be a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society.

It is clear that the judgment of Parliament and of commentators such as Clark that EPDVPOs are essential has been based on research that is politically motivated, one-sided and cavalier with the truth. The input from pressure-groups at Select Committee hearings was also undoubtedly one-sided, as far as the politics of Domestic Violence are concerned. As a member of the Men's Movement myself, I am certain that there would have been virtually no Men's Movement input at the time that would have contradicted the Feminists as to the nature of Domestic Violence.

The motivation for enacting EPDVPOs, therefore, must be seen as the understandable emotional reaction by Parliament and the public to the Feminist-inspired fantasy-image of a poor helpless woman being repeatedly bashed -- possibly to death -- by an evil, power-mad man.(123)

There seems to me to be an overwhelming logical argument against the need for EPDVPOs: Search warrants and Ex Parte Interlocutory Injunctions (EPIIs), such as Mareva injunctions and Anton Piller Orders, are directed at the property of the respondent, and are granted ex parte because their effect would probably be nugatory if the respondent was given notice. However, EPDVPOs are directed at the respondent, and do not come into effect until served on the respondent, so there is almost no logical reason why a summons to appear at a defended interlocutory hearing should not be served on the respondent instead. The Domestic Violence Act 1995 does not allow for that, but such a provision, if enacted as an amendment, could protect the applicant by imposing a temporary Protection Order for the period leading up to the hearing, and by automatically imposing a 42-day Protection Order if the respondent or his counsel failed to appear at the hearing.

In that context, the real reason for EPDVPOs seems to be to prevent the respondent (who is usually male) from presenting his side of the story. This is consistent with the common Feminist approach to research and policy-making, which is systematically to exclude pro-male points of view. For example, we have seen (above)(124) how a book that was based purely on women's accounts of Domestic Violence has become the foundation stone of the Feminist campaign on that issue.

My conclusion would therefore be that EPDVPOs are not at all essential, since the nature and extent of the problem they are intended to solve has been distorted and exaggerated beyond all recognition. It follows, if I am correct, that the many and diverse breaches of BORA that they involve may not be considered to be a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society.

 

Should EPDVPOs be mutual ?

Swayed by the Duluth model, Parliament has simply assumed, in the Domestic Violence Act, that Domestic Violence is one-sided, and that the relevant parties consist of one perpetrator and one victim, with no significant cross-over between the roles. Thus, there is no explicit provision for mutual Protection Orders. However, there is nothing in the Act to exclude mutual protection orders.

Paragraph 7.614 of Butterworths Family Law Service states that mutual orders (under DVA s. 18) are not actually banned, but they are cautioned against. If counsel became aware of the issues I have raised above, however, it should be easier for them to convince the Court that mutual orders were appropriate in many instances.

In fact, I would argue for mutual Protection Orders in most cases. One reason is that fairness dictates that, if both parties, on the facts, share the blame for the violence, both parties, rather than just one, should be barred from carrying out such acts on the other party. Another reason is that it is unfair to allow one party to play on the other party's emotions by phoning him, writing to him, etc., and provoking him to respond, or frustrating him through his inability to respond without putting himself in jeopardy. The third reason is that one-sided Protection Orders allow the applicant to manipulate and entrap the respondent, by inviting him to come and see her, and then (on some pretext) claiming a breach of the Protection Order, which results in the respondent acquiring a jail term and a criminal record. I know of one case where that happened, though I cannot make a judgement as to whether the breach was sincerely or maliciously alleged by the applicant.

 

Other issues

Davis mentions(125) the demands of some Fathers’ Rights activists for “equal time shared care”. She attempts to rebut this by saying “There is no reliable social science research to indicate that fathers are spending more time caring for children now than in the past (pre- or post-separation).” However, this is irrelevant. In a scenario where the father works longer hours in paid employment than the mother (or the mother is not in paid work at all), it is an essential household division of labour for the mother to spend more time caring for the children than the father does. That fact does not give the mother a right to continue providing most of the child-care after separation, because her child-care is no longer part of an internal division of labour created to maximise household income. The father may no longer be motivated to put such long hours into his paid job, since part of that motivation may have been to provide an income for his partner.

There is a double standard here: no Feminist would argue that, in the above scenario, the father should retain a proportion of the relationship property and of the relationship income which directly reflected the amount of paid work that the two of them did while they were together, because that would leave the mother with few or no assets and little or no income. So why should the division of childcare reflect the pre-separation situation either – just because it would suit the mother for it to do so ?

 

Conclusion

The Duluth (Power & Control) model of Domestic Violence is clearly discriminatory, and what is needed is a court case or a legislative amendment that recognises this. While judges, lawyers, witnesses and clients are involved in a system where this model is regarded as credible, courts have no ability to decide rationally if mothers are in fact using EPDVPOs for strategic purposes, or if father-child relationships are being needlessly destroyed.

 

Notes

1. The word gender is routinely misused, when in fact the reference is to physical sex. The word gender is properly restricted to social constructs, such as homosexuality, lesbianism, and bisexuality, but the sort of bias in question relates more frequently to sex, rather than to gender. If an allegation of Domestic Violence is made by a woman against her male partner, for example, I assume that the possibility that either of them might conceivably be bisexual is totally irrelevant to the way the allegation is handled by a Court or by the Police.
2. Wendy Davis Gender bias, fathers’ rights, domestic violence, and the Family Court (2004) 4 BFLJ 12, 299.
3. I will be returning to this issue in the context of Davis’ use of the word myth.
4. Peter Zohrab Sex, Lies & Feminism <http://equality.netfirms.com/contents.html> last accessed 6th July 2005.
5. Peter Zohrab The Frontman Fallacy <http://nzmera.orcon.net.nz/frontman.html> or <http://members.fortunecity.com/rightsofman/14frntmn.html> (last accessed 15 July 2005), etc.
6. It is a common saying in the legal profession that “the Law is full of little old women,” by which is meant that many famous cases involved changes to the Common Law that were arguably motivated by a need felt by chivalrous male judges to discover reasons to find in favour of females against males in the cases before them. I am not aware of any research on this topic, but I trust that this topic will be investigated once Masculist Jurisprudence starts being taught at universities.
7. Joanne Morris Study Paper 1: Women’s Access to Legal Services: Women’s Access to Justice – He Putanga Mo Nga Wahine Ki Te Tika (Law Commission, Wellington, 1999).
8. Institute of Professional Legal Studies Professional Responsibility Manual 29 (Institute of Professional Legal Studies, Wellington, 2005). The manual quotes from Morris’ study but states that the major barriers to women’s access to legal services pose barriers to men also – but then refers the reader to paragraph 109 of her study, which clearly states that “women are particularly adversely affected by them.”
9. Supra, n 7, at p 278.
10. New Zealand Men's Rights Association submission to the Law Commission on Women's Access to Justice (1996).
11. This fact makes it highly misleading to refer to it, as the Institute of Professional Legal Studies does (Supra, n 2, at p 29) as having been carried out by the Law Commission itself.
12. The Fathers’ movement is principally concerned with issues of concern to separated and divorced fathers, such as custody, access, and child-support. However, as the movement has matured, many of its members have found that these issues are inextricable from more general Men’s movement issues such as domestic violence, child abuse, false accusations, and anti-male bias in general.
13. Michael S Kimmel “Gender Symmetry” in Domestic Violence: A Substantive and Methodological Research Review (2002) 8 Violence Against Women 11 at p 17, quoted in Davis, Supra n 2, at p 300, which mis-cited it as 8 Violence Against Women 1.
14. Richard J Gelles Research and Advocacy: Can One Wear Two Hats ? Family Process 33, March 1994.
15. Supra, n 2, at p 299.
16. Supra, n 2, at p 301.
17. Domestic Violence Act 1995.
18. The term Feminist is not used here in a derogatory sense, but in the sense of “a person who considers that women are or have been systematically disadvantaged, compared to men.” Some people in New Zealand might consider that everyone must surely be a Feminist, in that sense of the word, but the Men’s/Fathers’ movement contains large numbers of people who are not.
19. For example, see the Women’s Refuge website (<http://www.womensrefuge.org.nz/> last accessed 9 July 2005).
20. For example, see Victims Task Force Protection from Family Violence: A Study of Protection Orders Under the Domestic Protection Act 1982(Abridged) (1992), which devotes just one paragraph to violence by women against men.
21. Supra, n 2, at p 300, quoting from Kimmel, supra n 13, at p 17.
22. Again quoting from Kimmel, supra n 13 at p 17.
23. Supra n 10, at p 2.
24. Gary Buurman states: “Much of the research undertaken, even within government departments, can be classified as advocacy research. In other words, there are specific assumptions or directions that are not to be questioned, and sometimes the methodologies are designed to highlight particular perspectives at the expense of others.” in Stuart Birks and Gary Buurman Research for Policy: Informing or Misleading? (< http://econ.massey.ac.nz/cppe/papers/cppeip07/cppeip07.pdf> last accessed 9 July 2005, Issues Paper No. 7, Massey University Centre for Public Policy Evaluation 2000, at p 4).
25. Julie Leibrich, Judy Paulin & Robin Ransom Hitting Home: Men speak about abuse of women partners (Department of Justice in association with AGB McNair 1995).
26. Letter dated 9 October 1995.
27. Fiebert, M. S., & Gonzalez, D. M. (1997). Women who initiate assaults: The reasons offered for such behavior. Psychological Reports, 80, 583-590.
28. Supra, n 2 at p 299.
29. Supra, n 2 at Footnote 9.
30. Supra, n 2 at p 302.
31. Sir Ronald Davison Report of inquiry into Family Court proceedings involving Christine Madeline Marion Bristol and Alan Robert Bristol. Report to the Minister of Justice (1994).
32. A pro-male analysis of the Bristol case remains to be written, but I am confident that anti-male bias was part of what caused this father to behave so much out of character – just as anti-male bias has informed analyses of his actions.
33. Supra, n 2, at p 302.
34. Supra, n 2, at p 304, quoting from Sheryl Hann The Implementation of the Domestic Violence Act 1995: A Report from the National Collective of Independent Women’s Refuges Inc(August 2004).
35. Supra, n 2, at p 299.
36. The Institute of Judicial Studies, the Institute of Professional Legal Studies, the Law Foundation, the Law Society, the Victoria University of Wellington Law Faculty, the Ministry of Justice, and the Law Commission.
37. See < http://nzmera.orcon.net.nz/tvdvfair.html> -- last accessed 10 July 2005.
38. See < http://nzmera.orcon.net.nz/pubenemy.html> -- last accessed 10 July 2005.
39. I.e. by claiming that men should be able to ignore female violence because most women are weaker than most men.
40. This model is variously called the “Duluth model” or the “Power and Control” model. See, for example, <http://www.menweb.org/batdulut.htm> -- last accessed 15 July 2005.
41. Supra, n 2, at p 305.
42. Eugene Kanin False Rape Allegations (1994, Archives of Sexual Behavior Vol.23, No. 1).
43. As with Dobash et al, infra, n 49, which uses the word myth quite legitimately in its title.
44. i.e. totalitarian Feminists.
45. Supra, n 14, at p 94.
46. See http://nzmera.orcon.net.nz/aprpriat.html>.
47. <http://www.csulb.edu/~mfiebert/assault.htm> -- last accessed 15 July 2005.
48. Terrie E. Moffitt, Avshalom Caspi and Phil A. Silva Findings About Partner Violence From the Dunedin Multidisciplinary Health and Development Study (1996); Ehrensaft, M. K., Moffitt, T. E., & Caspi, A. Clinically abusive relationships in an unselected birth cohort: men's and women's participation and developmental antecedents. Journal of Abnormal Psychology, 113 (2) (2004) 258-270; Jackson, S. M., Cram, F. & Seymour, F. W. (2000). Violence and sexual coercion in high school students' dating relationships. Journal of Family Violence, 15, 23-36; Lewis, A. & Sarantakos, S. (2001). Domestic Violence and the male victim. Nuance, #3; Magdol, L., Moffitt, T. E., Caspi, A., Fagan, J., Newman, D. L., & Silva, P. A. (1997). Gender differences in partner violence in a birth cohort of 21 year Olds: bridging the gap between clinical and epidemiological approaches. Journal of Consulting and Clinical Psychology, 65, 68-78; Moffitt, T. E., Robins, R. W., & Caspi, A. (2001). A couples analysis of partner abuse with implications for abuse-prevention policy. Criminology & Public Policy, 1, (1) 5-36.
49. Dobash, R P, Dobash, R. E., Wilson, M, and Daly, M The myth of sexual symmetry in marital violence (1992) 39 Social Problems 72.
50. Supra, n 2, at p 300.
51. Supra, n 47.
52. Supra, n 49, at p 72.
53. Until recently, activism as regards the social issue of Domestic Violence has been restricted to Feminists who have concentrated on the Power & Control model.
54. Supra n 49, at p 75.
55. Deirdre A. Gaquin Spouse abuse: Data from the National Crime Survey (1977/78) Victimology 2 632-643.
56. Supra, n 49, at p 75.
57. Lisa D. Brush Violent acts and injurious outcomes in married couples: Methodological issues in the National Survey of Families and Households. Gender and Society 4 56-67.
58. Peter Zohrab Sex, Lies & Feminism Chapter 7, 2002 version <http://www.geocities.com/nzequality/4dvlies.html>.
59. Warren Young, Allison Morris, Neil Cameron, and Stephen Haslett New Zealand National Survey of Crime Victims (1996, Commissioned by the Victimisation Survey Committee from Victoria Link Ltd and ACNielsen.McNair).
60. A similar questionnaire appeared in the 2001 Survey.
61. Supra, n 59, at p 81.
62. Supra, n 55.
63. Supra, n 57.
64. Supra, n 49, p 76.
65. Fiebert, Supra, n 47, reports Ernst, A. A., Nick, T. G., Weiss, S. J., Houry, D., & Mills, T. Domestic violence in an inner-city ED (1997 Annals of Emergency Medicine, 30, 190-197) as stating that there was a significant difference in the number of women vs. men who reported past abuse to the police ,19% of women, 6% of men.
66. Martin D. Schwartz Gender and injury in spousal assault (1987 Sociological Focus 20 61-75).
67. Supra, n 47.
68. Brown, G. Gender as a factor in the response of the law-enforcement system to violence against partners (2004, Sexuality and Culture, 8, (3-4), 3-139).
69. Supra, n 49, at p 76.
70. Supra, n 49, at p 76.
71. Maximiliane E. Szinovacz Using couple data as a metnodological tool: The case of marital violence (1983 Journal of Marriage and the Family 45 633-644).
72. Supra, n 49, at p 78.
73. Richard J. Gelles and John W. Harrop The risk of abusive violence among children with nongenetic caretakers (1991 Family Relations 40 78-83).
74. These remarks of mine are not based on any research results, and I would welcome any pointers to relevant research.
75. I tend to think that no-fault divorce and no-fault separation have been an unmitigated disaster, in terms of their effect on divorce-rates, separation-rates, children, and society as a whole.
76. Supra, n 49, at p 79.
77. Supra, n 49, at p 79.
78. Elizabeth A. Martin Oxford Dictionary of Law (OUP fifth edition 2003).
79. See <http://legal-dictionary.thefreedictionary.com/Assault> -- last accessed 20th July 2005.
80. See <http://www.constitutional.parliament.govt.nz/templates/Summary.aspx?id=80> – last accessed 21st July 2005.
81. Quoting Matthew Palmer, What is New Zealand’s Constitution and Who Interprets It?: Constitutional Realism and the Importance of Public Office-holders, p. 2 (Paper yet to be published).
82. See <http://nzmera.orcon.net.nz/4dvlies.html> -- last accessed 20th July 2005.
83. Supra, n 47.
84. Supra, n 48.
85. See <http://nzmera.orcon.net.nz/famsecrt.html> -- last accessed 20th July 2005.
86. A v R [2003] NZFLR 1105, 1107.
87. I see no point in identifying him, so I will not do so.
88. Supra, n 2.
89. I do not see the need to identify her.
90. Supra, n 49, at p 80.
91. See, for example, Lenore E. Walker The Battered Woman (N.Y.: Harper Colophon Books, 1979).
92. Robert Sheaffer Review of “The Battered Woman” http://equality.netfirms.com/batwmrev.html -- last accessed 22 July 2005.
93. Judge Jan Doogue, Domestic Violence: Reviewing the Needs of Children, paper delivered at the 3rd Annual Child & Youth Law Conference 2004, 1-2 April.
94. Supra, n 2, at p 300.
95. Supra, n 57.
96. Supra, n 59.
97. Supra, n 49.
98. In fact, however, Peter Zohrab’s overview (http://www.geocities.com/peterzohrab/dvsumary.html -- last accessed 20 July 2005) of Fiebert’s annotated Domestic Violence bibliography states that there are four studies listed indicating that women suffer more injuries in Domestic Violence than men do, as against three studies showing the converse.
99. <http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2005/07/05/npain05.xml&sSheet=/news/2005/07/05/ixhome.html> -- last