It’s hard to overstate the reach of the British Supreme Court’s ruling in this case (Daily Mail, 1/27/11). It was decided on Thursday and from that date all aspects of domestic violence law have been completely changed. Prior to the court’s ruling, the word “violence” in British law relating to domestic violence had been interpreted to mean physical assault. Thursday’s decision expands the definition of “violence” to include an astonishing and entirely unprecedented range of behaviors.
Raising your voice at a husband or wife, or a boyfriend or girlfriend, now counts as domestic violence under the landmark Supreme Court judgment. The decision also means that denying money to a partner or criticising them can count as violence and bring down draconian domestic violence penalties from the courts.
The case arose when a woman applied to a local council for housing separate from that of her husband. She did so based solely on her claim that he was violent toward her. But when the council learned that he had never been physically violent, it turned her down and she appealed. The Supreme Court’s ruling means that British taxpayers will get to provide housing for the woman, not because she’s in any physical danger; no one, not even she, claims that. No, the reason she gets a new place to live is that she says her husband shouted at her, a claim he denies. She also said he didn’t give her money for household expenses. Assuming that he did what she claims he did, he engaged in domestic violence according to the Supreme Court. And after Thursday, so does every other person in England. Five judges on the court led by Lady Hale seem to have been feeling in the dark for a justification of their decision. On one hand they consulted a dictionary and found that its definition of “violence” includes both physical assault and “extreme fervor, passion or fury.” That a court should base its opinion on a definition as loose as that beggars reason. A child could imagine a hundred instances to which the words “extreme fervor, passion or fury” would apply that couldn’t conceivably be called domestic violence (or could they?). Sexual passion, excitement about a football game, anger at the government apparently could all qualify. Perhaps aware of the carte blanche they were giving to courts across the land in future cases, the judges groped for another reason for such a radical change in British law. And, contrary to their consulting the dictionary, they declared that whatever we may think a word’s meaning is, it changes over time and so, irrespective of what Parliament intended and irrespective of what people generally understand the word to mean, it now means something else. And that ‘something else’ happens to be what the court said it meant on Thursday. Friday? That may be another matter. Stay tuned. As to parliamentary intention, dissenting judge Lord Brown
said he had a ‘profound doubt’ as to whether the domestic violence provisions were ever intended ‘to extend beyond the limits of physical violence.’
And as to the court’s contention that the fact that the meaning of words changes over time allows the court to ignore reasonable limitations on those meanings,
Family law expert Jill Kirby yesterday drew a comparison between the ruling and the Humpty Dumpty character in Lewis Carroll”s Through The Looking-Glass, who said words meant whatever he wanted them to mean. She said: ‘The judiciary are taking the Humpty Dumpty view, and it risks undermining confidence in the legal system.”
But beyond the mere parsing of words, the court’s ruling is utterly untenable and irresponsible on so many fronts, it’s hard to deal with them all. First, it’s abundantly clear that the ruling declares open season on all intimate relationships. While mere allegations of physical violence have been used for many years to have fathers thrown out of homes and the lives of their children, at least they could sometimes rebut the allegations with physical evidence. How do you rebut your wife’s claim that you shouted at her or criticized her? The answer is simple; you don’t. Second, unlike physical violence, the behavior now called domestic violence by the court is legal. Parliament has passed no law that prohibits people from raising their voices in the privacy of their own homes as long as they don’t disturb their neighbors. And there is no law telling adults how to budget their private money so as to pay their expenses. So what the Supreme Court has done is punish, in what the article correctly calls “draconian” ways, lawful behavior. Third, don’t the British have a right of free speech? Does that right not extend to passionate expressions of opinions and not simply bland murmurings? Fourth, what interest does the British state have in telling adults in the (supposed) privacy of their own homes how they have to talk to each other? Fifth, what interest does the British state have in telling adults in the (supposed) privacy of their own homes how they are to budget their funds? Sixth, this ruling covers not only housing issues which is bad enough. Far worse, it applies to family law as well. Henceforth, according to the court, a father can be tossed out of his house and denied contact with his children for the crime of raising his voice or allegedly having done so. In short, the government’s attack on the family, far from being lessened as it should have been years ago, has been immeasurably increased. Now it’s official; unproven and unprovable allegations of lawful behavior can (and will) be used to tear families apart, and all because five judges have so ruled. Seventh, let no one be deceived into believing that this ruling will be applied in a gender-neutral way. Domestic violence law hasn’t been to date and this ruling will be more of the same. For over four decades, men and fathers have been demonized in law, education and popular culture. The result is that, when women bring a claim of domestic violence, they are often believed whether they back up their claims with objective evidence or not. Men, having been demonized, get no such privilege. So the consequences of this ruling will be sexist, overwhelmingly used by women at the expense of men. Don’t believe me? Just look at the photo in the linked-to article. Who’s depicted shouting? More importantly, we know that fathers with children at home seldom file for divorce because they know to a certainty that they’ll lose their children. That was the finding of a massive study of over 40,000 divorce cases in four states of the United States conducted by sociologists Margaret Brinig and Douglas Allen. Women file 70% of divorce actions for the same reason – they know they’ll get the kids. Now the British Supreme Court has made doing so even easier than it has been to date. Fathers won’t cry “domestic violence” based on being shouted at because they know they’ll lose the kids if they do. So the court’s ruling is a direct slap at fathers and yet another assist to mothers who’ve decided that their kids don’t need a dad after all. Eighth, what if a father yells at his teenage son? According to the judges, that’s domestic violence and we all know that parents can lose their parental rights if violence against kids is proven. So apparently one “For the last time turn that music down!” is grounds for termination of rights. As I understand the court’s ruling, it can’t happen any other way. And then, what happens if the kid yells at his father. Is that domestic violence too? Let’s be clear. This is one of the worst imaginable decisions. Essentially everything about it is wrong, from its basic reasoning to its unquestionable consequences. The worst thing about it is its tendency to dramatically undermine families that are under far too much stress as it is. The British Parliament should – no, must – immediately move to correct this misguided ruling. It must enact legislation that states clearly that when statutes say ‘domestic violence’ they mean physical violence. It is not for courts to willy-nilly distort the plain meaning of Britain’s laws in the service of radical notions of social engineering that, over the years, have proven themselves to be far more deleterious to British society than not. If Parliament fails to immediately correct this travesty of “justice,” the consequences to British society will be incalculable.