D. Domestic violence and family privacy

The right to a private family life does not include the right to abuse family members. International and regional human rights instruments universally guarantee the right to a private life and to a home. The family is a private place, a source of comfort and nurture for the mutual growth of its members. Again, this value is enshrined in international and regional human rights instruments and acknowledged by the United Nations in, for example, the proclamation of 1994 as the International Year of the Family. While the importance of the family as a societal structure should not be underrated, excessive faith in its nurturing capacities may lead to efforts to sustain the family unit even where members are being victimized by other family members. Thus, the maintenance of the family as an intact unit may, in some cases of domestic violence, allow it to take precedence over the interests of the individual within it. The right to be free from domestic violence or the threat of domestic violence is a fundamental and universal human right.

Finally, any practitioner working in the area of family violence must recognize that a certain level of domestic violence is condoned by most societies. Physical discipline of children is allowed and, indeed, encouraged in many legal systems and a large number of countries allow moderate physical chastisement of a wife or, if they do not do so now, have done so within the last 100 years. Again, most legal systems fail to criminalize circumstances where a wife is forced to have sexual relations with her husband against her will. Allied with this condemnation is denial that domestic violence is a serious issue which may have long-lasting effects on the victim, the perpetrator and other family members. Indeed, in the case of violence against wives, there is a widespread belief that women provoke, can tolerate or even enjoy a certain level of violence from their spouses.

These values, which legitimate a certain amount of family violence, shape the attitudes of the public and practitioners in the context of the problem. They recur as themes when innovative strategies to confront domestic violence are considered and, moreover, combine to a large degree to undermine strategies that have been introduced.

In the main, domestic violence has been seen as a problem requiring legal solutions, but the policies that people involved in law making and the approaches people within the legal system have pursued when grappling with the issue have not been uniform. In all countries where domestic violence has emerged as a serious issue, people involved with the law have been forced to confront a central question, which is what role, if any, the criminal justice system should play in the management of domestic violence.