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DOI: https://doi.org/10.34069/AI/2023.64.04.9
How to Cite:
Stepanenko, O., Stepanenko, A., Kolodina, A., Kaminskyi, P., & Staurska, O. (2023). Phenomenology of domestic
violence. Amazonia Investiga, 12(64), 94-101. https://doi.org/10.34069/AI/2023.64.04.9
Phenomenology of domestic violence
Феноменологія домашнього насильства
Received: April 15, 2023 Accepted: May 15, 2023
Written by:
Oksana Stepanenko1
https://orcid.org/0000-0003-4677-9868
Аndriy Stepanenko2
https://orcid.org/0000-0001-8824-2212
Anna Kolodina3
https://orcid.org/0000-0002-7097-0155
Petro Kaminskyi4
https://orcid.org/0000-0001-7778-8279
Oleksandra Staurska5
https://orcid.org/0000-0003-2269-3699
Abstract
The issue of combating domestic violence is one
of the most important in today's conditions, both
in Ukraine and throughout the world, because
violence is recognized as violating human rights.
In order to improve the situation and implement
mechanisms for combating domestic violence at
the international level, a system of international
legal protection of the rights of persons, affected
by this phenomenon has been created. The
purpose of the work is to assess and study the
provisions of international legal acts aimed at
combating domestic violence. The research
methodology is a complex of methods: historical,
comparative-legal, descriptive, systemic-
structural, dogmatic, sociological and modeling,
induction and deduction, and philosophical
method. As a result of the study, an analysis of
the features of the emergence and development
of international legal regulation in the field of
combating domestic violence was carried out, in
particular, the system and features of individual
international acts aimed at regulating relevant
relations are considered. Also, the criminal law
rules regulating the fight against domestic
violence were analyzed. Attention is drawn to the
development and experience of the criminal-
legal response to the investigated phenomenon in
the international community and its
1
Ph. D., Associate Professor of Department of Criminal Law of National University «Odessa Law Academy», Ukraine.
2
Ph. D., Associate Professor of Department of Criminal Procedure, Detective and Search Activities of National University «Odessa
Law Academy», Ukraine.
3
Ph. D., Associate Professor of Department of Criminalistic of National University «Odessa Law Academy», Ukraine.
4
Ph. D., Assistant of Department of Criminal Law of National University «Odessa Law Academy», Ukraine.
5
Graduate student of the Drpartment of Criminalistic of of National University «Odessa Law Academy», Ukraine.
Stepanenko, O., Stepanenko, A., Kolodina, A., Kaminskyi, P., Staurska, O. / Volume 12 - Issue 64: 94-101 / April, 2023
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transformation in modern conditions. The
possible directions of the development of
international legal regulation regarding the
criminal legal response to domestic violence in
Ukraine and the world have been determined.
Keywords: phenomenology, domestic violence,
forensic qualification, family relations, legal
regulation.
Introduction
The family is an important element of both the
nation and the cultural community. At the same
time, the family mirrors society and the changes
taking place (in particular, those taking place at
the psychological level, quality of life).
Domestic violence should be understood as a
socially dangerous act that encroaches on the
institution of the family. Violence in the family
affects not only relations within the family itself
but also results in the emergence of illegal
attitudes in society. Domestic violence is an
integral part of the general structure of violent
crime, which includes actions related to physical
and mental violence against a person or the threat
of its use.
Taking into account the task of states to ensure
human rights and combat crime, each state must
make efforts to create safe living conditions for
its people, including in the development of
effective methods that prevent the spread of such
a phenomenon as domestic violence.
But it is worth noting that for a long time, the
problem of domestic violence was considered the
prerogative of established customs and traditions
and remained outside the scope of legal
regulation, and interference in family life by the
state and society was considered a gross violation
of privacy. This results in a significant number of
latent offenses that have been overlooked by law
enforcement agencies.
The international movement for women's rights
contributed to drawing attention to the problem
of domestic violence at the global level because
it is women who suffer the most from violent
actions by members of their families. Currently,
domestic violence is not a geographically
isolated problem and every day damages the
most valuable human goods - honor and dignity,
health and life. Therefore, it is important to
develop mechanisms for combating domestic
violence, taking into account the peculiarities of
this phenomenon. This determines the relevance
of an in-depth study of the phenomenology of
domestic violence as an important phenomenon
and individual characteristics of criminal
behavior.
Based on the above, it is appropriate to formulate
the tasks of this research, which are: 1. To
analyze various approaches to understanding the
nature and content of domestic violence. 2. To
investigate the peculiarities of domestic violence
as a phenomenon in the criminological aspect.
3. To characterize such categories as family,
marriage, and family relationships in the context
of research into the phenomenology of domestic
violence. 4. To note the advantages and
disadvantages of different approaches to
understanding the evolution of the content of
domestic violence. 5. To offer the author's view
on the improvement of means of combating
domestic violence.
Theoretical Framework or Literature Review
The criminal-legal characterization of family
violence is explored in the work of Bandurko
(2013). In particular, the author noted that among
criminological problems, one of the main, but at
the same time debatable and least developed, is
the problem of studying the identity of a criminal
and an offender who commits domestic violence.
The concept, essence, and causes of violence in
the family are considered in the work of
Botnarenko (2016). The question of the
phenomenology of crime as a branch of
criminology was analyzed by Veprytskyi (2013).
Thus, the scientist notes that the phenomenology
of crime details available approaches and factors
depending on the type of crime, its causes, and
conditions, based on the fact that in criminology
crime is often defined as a social or socio-legal
phenomenon, as "a relatively massive,
historically changing social phenomenon, which
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has a criminal-legal nature, a class essence and
consists of the entire set of crimes committed in
a certain state in the relevant period".
The peculiarities of proceedings in the form of
private prosecution and proceedings based on
agreements and the question of when the refusal
to prosecute is an insufficient argument are
analyzed in the work of Glowyuk (2019).
Humin (2011) analyzed the theoretical and
practical aspects of a person's violent criminal
behavior. Separate issues of violent acts as
criminal and punitive acts are analyzed in the
work of Ignatov (2005).
General theoretical provisions of legal
psychology are outlined in the textbook by
Konovalov, and Shepitko (2013). Cross-cutting
and isolated concepts of the criminal law of
Ukraine were investigated by Navrotskyi (2020)
Standards for the prevention of family violence
at the UN and Ukrainian realities are analyzed in
Orlovska's article (2014). In particular, attention
is paid to the UN model legislation on crime
prevention, as well as institutional reform to fight
crime.
In their work, Perelighina and Mytnyk (2018)
concluded that there is currently no unified
definition of the concept of domestic violence. In
our opinion, domestic violence should be
understood as any act of physical, sexual,
psychological (in the form of emotional or verbal
violence), or economic violence committed
against family members, close relatives, as well
as persons who live with the abuser in the same
house.
Legal and psychological aspects of conflict
resolution related to violence in families were
studied by Sydorenko (2001). Tkachenko (2013)
conducted a theoretical and criminological
characterization of the factors that cause violence
in the family.
The key principles of gender policy in the
criminal law of Ukraine and the main directions
of reforms in combating violence against women
and domestic violence are studied in the work of
Kharytonova (2018).
International experience and modern problems of
family violence are analyzed in the work of
Yakhyazade (2013). In the opinion of the author,
the effective overcoming of the problems of
violence in the family requires further
improvement of the provisions of domestic
legislation, elimination of conflicts in the
legislation, an increase of requirements for law
enforcement agencies, as well as an increase of
the level of legal education of the population.
Methodology
The use of the general scientific dialectical
method helped to form the general
methodological basis of the study and to identify
and deeply reveal the social nature of domestic
violence. By its legal nature, the dialectical
method is a method of learning a reality in its
contradictions, integrity, and development.
Therefore, this method contributed to revealing
the essence of domestic violence, as well as to
understanding how this phenomenon developed,
and what made it necessary to pay more attention
to countering domestic violence. Moreover,
thanks to the dialectical method, taking into
account the general trends in the development of
teachings on violence and its countermeasures,
conclusions were formulated about the future
possibilities of developing legislation on
countering domestic violence.
The formal-dogmatic method played an equally
important role in the conducted research. This
method is important for analyzing the content of
legal norms. Given that the essence of this
method is to study law per se, without
comparison with other areas, this method helps
to reveal legal categories, define concepts, and
legal constructions, and understand legal
techniques. Therefore, the application of the
formal-dogmatic method made it possible to
analyze the theoretical developments of various
aspects of countermeasures and causes of
domestic violence.
When conducting legal research, it is important
to analyze problematic issues using the formal-
legal and structural-functional methods. Thus,
the formal-legal method allows for tracing the
interrelationships between the internal content
and external expression (form) of state-legal
phenomena and institutions. The structural-
functional method offers the study of social
phenomena and processes as a structurally
dismembered whole. Therefore, the formal-legal
and structural-functional methods as a whole
contributed to the review and analysis of legal
norms that regulate issues related to the
prevention of violence in the family
environment, the definition of the subjects of
domestic violence, and, in general, the definition
of the phenomenology of domestic violence.
Modeling, analysis, and synthesis methods were
used in the process of developing ways to
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improve the organizational and legal framework
for combating domestic violence. In particular,
the modeling method helped to analyze the
possible ways of developing legislation to
combat domestic violence, and the analysis and
synthesis made it possible to better understand
the phenomenon of domestic violence.
A statistical method was used to process
statistical data to understand the scale of
domestic violence and to identify victims of
domestic violence.
Results and Discussion
Before considering the issue of the
phenomenology of domestic violence, let's
analyze the definition of phenomenology.
In general, the term "phenomenology" comes
from the Greek words phainómenon, which
means "that which appears" and lógos –
knowledge. Phenomenology is a so-called
philosophical direction, the basis of which is the
observation and description of the phenomenon
as it is in the mind of the observer, and puts the
study of phenomena in the first place, that is,
what appears in the mind of a person when he
perceives this world. Scientists define
phenomenology as a branch of philosophy that
considers the qualities and characteristics of
objects and the relationship between them as a
necessity, as a phenomenon of nature. The tasks
of phenomenology are the formalization of
relations between objects and their presentation
in the form of laws and interdependence.
Phenomenology of social studies by formal
means the structure of social systems, groups,
other constituent elements, their development
and interaction, and dependence (Veprytskyi,
2013).
Phenomenology is actively used not only in
philosophical research but also in criminal law,
helping researchers gain a deeper understanding
of the phenomena associated with certain
criminal offenses.
The phenomenon of domestic violence belongs
to social phenomena that have several aspects
and depend on many factors. Domestic violence
is a real-world phenomenon that occurs within
the family and between people who have certain
personal relationships. The key features of this
phenomenon are that the violence is directed by
one person against another and that it occurs in
the context of family relations, that is, between
close people who have both social and, no less
important, emotional ties.
Scientists from many fields of knowledge pay
attention to the study of the problems of violence:
philosophy, sociology, political science, history,
law, psychology, anthropology, and others. We
agree with O. Yu. Sydorenko, who notes that
violence is a "general psychological,
philosophical, sociological, moral and legal
category" (Sydorenko, 2001).
In philosophy, violence is studied in the context
of ethics, politics, and social philosophy. Quite
often, violence is seen as a philosophical
phenomenon that reflects problems of power,
control, morality, and law.
The authors of the philosophical encyclopedic
dictionary understand violence as the use of force
or the threat of its use (Philosophical
encyclopedic dictionary under the editorship of
M.T. Maksimenko, 2002). In turn, the American
philosopher Sh. Wolin points out that violence
comes from the Latin word "violentia", which
means a spontaneous and uncontrolled
manifestation of force, as opposed to the concept
of the legal and normal use of force by the
institution of the state (Wolin, 1970).
Philosophers examine the question of what moral
limits should be placed on the use of violence and
whether it can be morally just. Thus, the
philosophical approach to defining violence
focuses on the ethical aspects of this concept and
how it is related to moral values and principles.
In turn, sociologists examine the concept of
violence in the context of social dynamics,
human interaction, and the influence of social
factors on the formation of violent stereotypes.
Sociologists define violence as "coercion
(action) carried out by an individual or a group of
persons to achieve a set goal and which is
associated with the direct infliction of physical,
psychological or moral harm on another person
or with the threat of such infliction"
(Andrushchenko, Bekh, & Bashkirev, 2002).
From a psychological point of view, violence is
a complex phenomenon that includes not only
physical actions but also psychological pressure
and emotional violence. The definition of
violence in psychology is usually based on the
concepts of power, control, and behavioral
submission.
At the same time, scientists, philosophers,
sociologists, and psychologists point out that
violence can have both destructive and
constructive functions. The destructive function
of violence is that it causes harm to another
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person who becomes a victim of violence. It can
be physical, psychological, sexual, economic,
and other violence. The destructive function of
violence can cause injuries, pain, fear, and other
negative consequences not only for the victim but
also for those around him. In turn, the
constructive function of violence is that it can
perform a useful social role. For example,
violence can protect the interests of the state in
the event of external threats, defend the rights of
citizens against government oppression, and
ensure security within the state. In addition, cases
of self-defense or the use of violence to stop
another violent person can have positive
consequences for the individual and society.
Violence is generally defined as an influence, the
use of physical force against someone; rape,
violence, coercion; the use of force to achieve
something; coercive influence on someone,
something; actions with the use of physical or
mental force against someone, rape, coercion,
violence (Kalashnyk, 2002). It is also defined as
"intentional influence of one person on another,
against the will of the latter, which causes this
person physical, moral, property damage or
contains a threat of causing said damage with a
criminal purpose" (Shemshuchenko, 2002).
Analysis of numerous scientific literature in the
field of criminal law makes it possible to note
that most scientists define violence as an
influence. So, it is possible to define the
following positions regarding the understanding
of violence:
− "intentional, socially dangerous and illegal
influence carried out through mental or
physical assault by a person on other
persons, as a result of which damage is
caused or a real threat is created to life,
health, honor, dignity and other rights and
freedoms of citizens, which are guaranteed
by the Constitution of Ukraine and are
protected by the criminal law" (Humin,
2011).
− "energetic influence on the organs and
tissues of the human body, their
physiological functions, through the use of
material factors of the external environment
(mechanical, physical, chemical and
biological) and/or informational influence
on his psyche, which is done against his will,
capable of causing death, physical and/or
mental trauma, as well as limit a person's
freedom of expression or action" (Ignatov,
2005).
− "external influence on a person or a group of
people, coercion, causing damage to life and
property, which are carried out against the
will of those against whom they are directed;
the physical or mental influence of one
person on another, which violates the latter's
right to personal integrity, with the aim of
achieving a certain criminal result"
(Konovalova, & Shepitko, 2013).
− "inflicting bodily harm, killing or
threatening to do so" (Navrotskyi, 1997).
V.O. Navrotsky notes that since ancient times,
the term violence has denoted physical impact on
another person's body. "sexual" violence.
(Navrotsky, 2020).
Taking into account the above, the following
approaches to the definition of violence in
criminal law can be distinguished:
1) violence is exclusively a physical influence
on another person;
2) violence is both physical and psychological
impacts on another person.
In addition, the economic impact is also possible.
Given the presence of various forms of violence
and the fact that it is quite important to foresee
criminal liability for their commission, violence
cannot be defined only as a physical impact. That
is why defining violence as a comprehensive
criminal law concept is justified by defining it as
a physical and psychological impact on another
person.
Also, the following basic signs of "violence" are
distinguished in the scientific literature:
1. Violence is a socially dangerous
phenomenon because it poses a threat to the
normal functioning and development of both
society as a whole and its individual
members;
2. It is an illegal act, that is, it violates the
norms of the law;
3. Violence is committed with intentional guilt;
4. Violence is expressed in an active influence
on another person, that is, it is an active act
manifested through certain forms (for
example, a blow, a push, etc.);
5. This action is coercive, that is, it violates the
principle of voluntariness;
6. Coercion manifests itself in the form of
physical, mental, and sexual influence;
7. The result of violence is the damage caused:
moral (psychological suffering, stress, etc.)
and material (expenses for treatment,
lawyers' services).
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Each of these three broad categories is divided
into new subgroups that reflect more specific
types of violence.
Interpersonal violence is divided into the
following subgroups:
− domestic violence that occurs between
family members, including regarding
children;
− violence in the community, which occurs
against someone with whom the offender is
not in a family relationship and, as a rule,
outside the home (violence at school
(bullying, mobbing), violence in the youth
environment).
So domestic violence is one of the types of
violence, and therefore it has all the above-
mentioned signs of violence and certain special
features, which we will mention further.
O. V. Kharytonova notes that "domestic
violence" correlates with the English term
"domestic violence". The word "domestic" has
connotations of "family, domestic, home,
family". Therefore, when we talk about domestic
violence, we need to understand that we are
talking not only about the home in the physical
sense of the word, the place of permanent
residence of a person but about a certain
symbolic space where "domesticity" is derived
through the delineation of the circle of persons to
whom the legislation applies about domestic
violence (Kharytonova, 2018).
The organization "La Strada - Ukraine" defines
"gender-based violence" as violence that is
perpetrated against people because of their
gender or affects mainly people of a certain
gender. This is an extreme manifestation of
discrimination based on gender, the victims of
which are women most often. At the same time,
the following types of gender-based violence are
distinguished: physical violence; psychological
violence; sexual violence; economic violence;
domestic violence; persecution; rape; sexual
harassment; female genital mutilation; forced
sterilization; forced abortion; forced marriage;
crimes in the name of so-called honor; violence
in an institutional environment; violence in war,
conflict and post-conflict situations; human
trafficking; gender discrimination (La Strada
Ukraine, 2018).
Taking into account the mentioned
characteristics, the question arises whether it is
always possible to assert imperatively about
domestic violence in the case when the victim of
a criminally punishable act is a member of the
accused's family?
In the decision of the Supreme Court of April 7,
2020 (Resolution 647/1931/19, 2020) it is stated
that in this case, the prosecution claimed that the
accused committed the crime as a result of a
sudden quarrel. The court stated that such
wording in itself does not indicate that the
violence was caused by a certain discriminatory
attitude towards the victim. Also, it was not clear
from the content of the indictment that the
incriminated act of aggression was one of the
episodes in the atmosphere of domestic violence
that developed between the accused and his
mother. The reference only to the fact that the
victim of the crime is a member of the accused's
family is not enough to assert the existence of a
situation of domestic violence in the sense given
to this term by the Istanbul Convention and the
law adopted for the purpose of its
implementation. In order to substantiate the
applicability of the exception regarding domestic
violence in paragraph 7, part 1 of Article 284 of
the Criminal Procedure Code to a specific case,
the prosecution must prove circumstances that
indicate that the victim of the incriminated crime
is at the same time a victim of domestic violence.
This does not exclude the fact that evidence of
the existence of a situation of domestic violence
may be contained in the very circumstances of
the crime, which prove that a certain case of
violence is a manifestation of behavior
characteristic of domestic violence.
Summarizing the above, domestic violence as a
phenomenon encompasses the following
characteristics:
− this is an illegal, intentional physical and/or
psychological influence of one person on
another;
− committed through physical, psychological,
sexual, or economic violence;
− are committed in the family or within the
limits of the place of residence or between
relatives, or between former or current
spouses, or between other persons who live
(lived) together in the same family, but are
not (were not) in family relations or in
marriage between themselves, regardless of
whether the person who committed domestic
violence lives (has lived) in the same place
as the victim;
− one of the parties belongs to a certain
vulnerable group and/or is in a vulnerable
situation;
− violence is committed on the basis of a
person's specific role;
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− such violence causes various kinds of
damage or creates a real threat of causing
such damage.
Conclusions
1) The problem of domestic violence is
complex and not fully resolved, despite the
fact that it has a significant interest both
among scientists and among organizations
of the international community.
2) It is generally accepted to consider violence
as an attempt on life, the use of physical
force or coercive influence on someone, or
resistance to force. However, it is important
to consider other forms of violence, such as
economic, sexual, and psychological.
3) The term "domestic violence" is mainly used
by foreign legislation, science, and practice.
But due to its legal nature, the identification
of the terms "family violence" and "domestic
violence" is often to blame. We believe that
the main difference between the concepts of
domestic and family violence is that the
criminological sign of domestic violence is
the place of its commission, and it is not
always connected with the sphere of marital
and family relations, and the concept of
"family violence" has a family character of
the motivation of the commission illegal acts
and is directly related to the concept of
"family".
4) It is necessary to distinguish between
domestic violence as a phenomenon,
domestic violence as an administrative
offense, domestic violence as a criminal act,
and criminal offenses related to domestic
violence. The following studies will be
devoted to the disclosure of the content of
these categories.
Regarding further scientific research, we
consider it necessary to analyze the international
experience of combating domestic violence and
to investigate the effective regulation of
prevention of violence in the family.
Among the main areas of improvement of the
mechanism of combating manifestations of
domestic violence, it is worth mentioning the
strengthening of legal responsibility for
committing acts that can be qualified as
manifestations of domestic violence; providing a
wider range of law enforcement agencies with
powers aimed at stopping domestic violence and
bringing persons guilty of such acts to criminal
and other types of legal responsibility;
introduction into domestic legislation of the best
models of combating domestic violence, which
have proven themselves in foreign countries;
implementation of a wide range of measures
aimed at the prevention of domestic violence.
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