Gender Neutral Laws and Heterocentric Policies: “Domestic Abuse as Gender-Based Abuse” and Same-Sex Couples
| Author | Brian Dempsey |
| Pages | 381-405 |
| Published date | 01 September 2011 |
| DOI | 10.3366/elr.2011.0058 |
| Date | 01 September 2011 |
Domestic abuse is a major social problem which causes significant individual and economic harm.
Domestic abuse is the generally accepted term within Scottish policy debate as opposed to e.g. intimate partner abuse or domestic violence. For an analysis of the economic impact of domestic abuse see e.g. S Walby,
The government's “domestic abuse (as gender-based abuse)” construct, explored below, was adopted in 2000: see n 56 and text thereto.
On taking office in 2007, the SNP minority administration adopted the style “Scottish Government” in preference to “Scottish Executive”. For clarity, all references will be to “government”. The focus is on the first two governments as, although the SNP government inherited the “as gender-based” definition, it was the first two administrations which facilitated its development and thereafter rigorously implemented it.
In the interests of clarity trans/transsexual/transgender people are treated simply as being in their preferred sex and therefore, if in a relationship, simply in a same-sex or mixed-sex couple. For an exploration of some of the particular issues faced by trans people see B Dempsey, “Trans people's experience of domestic abuse” 2010 SCOLAG 208 and A Roch, J Morton and G Ritchie,
The law has always taken a position on violence and abuse within intimate relationships, arguably at first in terms of both specifically allowing a degree of violence by way of “reasonable chastisement” from the husband to the wife
Clear authority for this “right” is difficult to locate. Fraser is somewhat unclear but states, in relation to possible defences available to a husband in an action of separation, “the old law gave the husband a right moderately to chastise his wife by corporal punishment, and the doctrine has been laid down even as the law at the present day. But this is a rule so utterly inconsistent with modern manners as not to be one which it is at all probable the Court will sanction”: P Fraser,
See e.g. S M Okin,
The somewhat clumsy and ambiguous term “those experiencing abuse” is used in preference to “victim” as the latter term tends to label people against whom domestic abuse is directed as passive recipients; “survivor” has similar problematic connotations.
A number of government and Member's Bills, statements before Committees and in the Chamber of the Parliament, many funding initiatives and the existence of a Scottish Parliament Cross Party Group on “Men's Violence against Women and Children” attest to the attention afforded at least some aspects of domestic abuse.
See e.g. B Dempsey, “Lesbian, gay, bisexual and trans people and the law” in M Mulhern (ed),
Since devolution, the approach to domestic abuse in Scotland has been dominated by the particular “gendered” definition of domestic abuse adopted by successive Scottish governments. While a genuine gendered approach (as opposed to definition), seeking to capture the importance of the different experiences and responses of women and men when they experience domestic abuse in the context of a highly-gendered society would be of value, in practice government policy in Scotland has been to implement a very particular, feminist-inspired definition which, rather than being sensitive to all gender dynamics, has focussed almost exclusively on the experience of women in mixed-sex relationships. This, it will be argued, has been to the detriment of both men and women who experience domestic abuse in same-sex relationships and their children.
Men in mixed-sex relationships, and their children, are arguably also significantly disadvantaged, but consideration of their situation is outwith the scope of this article.
The development and use of the “domestic abuse as gender-based abuse” construct by the first two Scottish governments is not interrogated with the aim of making gendered relations disappear but rather in order to explore the implications of the universalisation of this particular definitional construct on persons experiencing abuse in same-sex relationships. It is not the purpose of this article to seek to diminish the reality of domestic abuse experienced by women at the hands of male partners; nor does the author seek to depoliticise or decontextualise our understanding of domestic abuse. On the contrary, this article will argue that what is required is a more sophisticated gendered approach than that so far promoted by politicians, activists and academic commentators – one that respects the experiences of persons in same-sex couples and considers how legal and policy regulation impacts upon lgbt people in the context of formally gender- and sexuality-neutral laws. An understanding of the reality of lgbt people's experience of the law relating to domestic abuse, and also of the interaction of those experiences with the dominant feminist definitional construction of domestic abuse, has the potential to improve not just how law affects those in same-sex relationships but also how it affects all those who experience domestic abuse.
This article will first establish what is known about the reality of domestic abuse in same-sex relationships before seeking to impose clarity on the Scottish government's peculiar definition of domestic abuse and establishing that it is an unusually narrow construct that in practice excludes many people who experience abuse. It will then critique attempts to accommodate recognition of same-sex domestic abuse with the government's definition, concluding that there is a need for greater rigour, clarity and honesty of analysis and a more nuanced understanding of the reality of domestic abuse. The author's position is that greater attention to the experiences of lgbt people would not only make a significant contribution to addressing the interests of all persons experiencing domestic abuse and that their exclusion represents a breach of the government's obligation to promote equality.
See e.g. Scotland Act 1998 ss 29(2)(d) and 57(2); Scottish Government,
Until relatively recently, there was very limited official and academic knowledge of the realities of lgbt family structures and dynamics as a result of a combination of discriminatory laws and widespread social prejudice.
See e.g. S Whittle,
W S Kulkin et al, “A review of research on violence in same-gender couples” (2008) 53 Journal of Homosexuality 71 at 72.
Given the paucity of research on same-sex domestic abuse, especially on male couples,
There is very little research in Scotland: see D Gadd,
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