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Domestic abuse law: helping or hindering victims?

About The Author

Sophie Cole-Hamilton (Writer)

Sophie is a second year law student at the University of Birmingham. Sophie aspires to qualifying as a solicitor, with an interest in all areas of private law. Outside of her studies, Sophie is part of the Birmingham Law School pro bono group and has a passion for writing.

Domestic abuse is a personal and traumatic experience for all victims, with each being manipulated and harmed in a different way. For the past twenty years, legislators have sought to create laws to protect abuse victims. However, given the wide variations in abuse, this has proved extremely difficult. Will this government finally solve the puzzle on how best to deal with domestic abuse, its victims and its perpetrators?

What can be defined as “domestic abuse”?

The official government definition of domestic abuse was updated in November last year: “any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality.”

The abuse can encompass, but is not limited to psychological, physical, sexual, financial or emotional abuse. The term “behaviour” is defined as: “a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten”.

A background to domestic abuse: who are the victims and how much help are they given

Some believe sympathy has not always been given to female domestic abuse victims. Carolyn Ramsey, an academic at Colorado Law School, suggests that at the beginning of the 20th century, women were seen as frail and weak. Society saw women as needing protection, and therefore many abusive male partners were prosecuted. On the other hand, women were rarely prosecuted when they were abusive to their male partners.

However, these attitudes changed as women acquired more rights, including equal pay, increased divorce grounds and more rights to contraceptive methods. Ramsey argues that many now see women as equal in society; sympathy for female domestic abuse victims has decreased. “Walking away” from an abusive partner is now viewed as an easy thing to do, and many do not understand the permanent damage an abusive relationship can have on victims.

Despite this idea, many of the main domestic abuse organisations such as Womens Aid and Refuge centre their campaigns and fundraising on female victims.  Although 38% of domestic abuse victims are male, this statistic is neglected by the media. Many view domestic abuse as a gendered issue, with women as the victims and men as the perpetrators.

This approach is criticised by abuse charities helping male victims, who argue that they are often laughed at by the police and, as a result, do not report the abuse they suffer. Mark Brooks of the Mankind initiative, a charity helpline for male victims, says it is a scandal that victims of domestic abuse are not treated equally. He argues that instead of treating domestic abuse as a gendered issue, each victim should be helped as an individual.

It is in no doubt that a home prone to domestic violence is a harmful environment to raise a child in. Children living in violent homes are often viewed as victims, whether or not those children are abused. According to the Department of Health, at least 750,000 children will witness domestic abuse per year. Women’s Aid says it is common for children who have witnessed domestic abuse to become anxious, depressed, and withdraw from social situations.

On the over hand, studies have shown that as an alternative to internalising their distress, some children will become aggressive instead. Brown and Bzostek found that men who witnessed domestic violence as children are more likely to commit domestic violence, whereas females who witness domestic violence are likely to be victims in later life. These statistics are worrying, and many feel something must be done to help children who have experienced domestic abuse.

Tackling childrens attitudes to domestic abuse is difficult, but education can play a huge part in teaching children about healthy relationships. A recent study by the University of Manchester found that education of adult relationships could have a positive impact on secondary school childrens attitudes. Professor David Gadd, leading the study, argued that it was essential that we appraise young people about the risks of domestic abuse in intimate relationships in order to seriously reduce its prevalence in European countries.

Proposals for new domestic abuse law

Earlier this year, Her Majestys Inspectorate of Constabulary (HMIC) published a report revealing “alarming and unacceptable” weaknesses in police dealings with domestic abuse. The report found that many constabularies had few or no specialist domestic abuse officers, despite it being linked to 8% of all crime, and also showed failings in evidence gathering. It said that victims of domestic abuse faced “a lottery” of how their claim was dealt with by the police dependent on their police force. According to the report, 269,700 domestic abuse crimes have been reported in the last year, with a million calls being made to the police. It is clear that change must occur to rid our society of domestic abuse.

Following this damning report, the Home Office has vowed to make serious changes to domestic abuse law. Their plans include tackling police and public attitudes and giving more help to those who are emotionally and psychologically abused. In order to achieve this, the Home Office has released consultation paper proposing changing current domestic abuse laws.

The consultation paper, “Strengthening the Law on Domestic Abuse”, focuses on whether a new offence is needed to capture patterns of coercive and controlling behaviour in intimate relationships. It invites the general public, including victims of abuse, organisations representing victims and police officers, to share their views of domestic abuse and how it should be dealt with. But will a new Bill help tackle domestic abuse, or further complicate existing legislation?

Some critics are sceptical about the impact a new Bill may have. Julie Bindel, founder of Justice for Women, argues that instead of introducing a new Bill, the criminal justice system should instead be properly trained in implementing current laws in order to better help victims.

Recent changes to domestic abuse law

This is not the first time our current government has attempted to help domestic abuse victims. Earlier this year, the Domestic Violence Disclosure Scheme, otherwise known as Clares Law, was introduced permanently to police forces in England and Wales after being piloted in four constabularies. This allows potential domestic abuse victims to ask the police if their partner has any previous record of violent crime.

Theresa May has argued that this is a way for potential victims to find out about a partners violent past before its too late, enabling them to either stay with their partner or leave. However, critics of the scheme have argued that this idea is too simplistic.

Jane Keeper, Refuge’s Head of Operations, thinks this is targeting the wrong problem. Many violent perpetrators are not known to the authorities: even if a potential victims partner does have a violent past, police and the potential victim will be kept in the dark.

It is also naïve of Theresa May to believe that victims can simply “up and leave” their partners. This assumption ignores issues such as where victims and their children could seek refuge. Furthermore, the emotional and psychological abuse many victims face may mean this scheme will not be used as often as anticipated. This is because sometimes emotional and psychological abuse can “brainwash” a victim to the extent that they believe the abuse they suffer is deserved. Victims such as this would therefore never consider going to the police or using the disclosure scheme.

Current domestic abuse laws

In 2004, the Domestic Violence, Crime and Victims Act (DVCV) was created, the first piece of legislation for nearly 30 years to focus on domestic abuse. The Act makes injunctions available to cohabiting and same sex couples, and also makes restraining orders applicable to any crime committed by a violent abuser. Although this piece of legislation was welcomed by domestic abuse charities, it is thought that the current legislation does not go far enough. Refuge have said that although the DVCV Act gives a clear message to perpetrators that domestic abuse is abhorrent and criminal, it has no effect if specialist services are not created to properly implement the changes. Ten years later, the evidence of specialist services to help victims is scarce.

Section 1 of the DVCV Act amended the Family Law Act 1996 (FLA) by introducing section 42(a), which came into force in July 2007.  This provision states that non molestation orders (a type of civil injunction which prevents abusive partners from using or threatening violence against a victim) are now dealt with by the criminal courts rather than the family courts, meaning such a breach will be treated as a criminal offence rather than a civil wrong. This change was made after many victims of domestic abuse criticised the ineffectiveness of treating a breach as a civil contempt of court. It was hoped that this would deter abusive partners from breaching the order, and would also take the strain off victims bringing a civil case against their partner.

However, Women’s Aid have expressed concern that making these breaches criminally culpable will cause the victim to have less control over the case. With civil claims, victims are in control of their case the whole time, as they bring proceedings themselves. However with criminal cases, CPS involvement would mean victims would stand as witnesses only. The trial could therefore reach a conclusion they did not want and have no control over. As well as this, the stigma and weight attached to being convicted of a criminal offence may deter victims from reporting a breach of a non-molestation order. This is particularly applicable to abusers and victims who have children together.

Together with non-molestation orders, Section 33 of the Family Law Act 1996 (FLA) has introduced occupation orders. Occupation orders are civil injunctions granted by the family courts, which regulate who can live in the family home. This has helped many victims of domestic abuse, such as refuge-seeking victims who are able to return home and exclude their abuser, and those who no longer feel safe living with their abuser.

However, many victims of domestic abuse who are granted injunctions under the FLA are let down by civil courtsadministrative errors. It has been reported that courts often reveal victims’ contact details to their abuser. This allows abusers to track down and cause more harm to their apparently safe ex-victims. One such victim, Christabel Young, says that within ten minutes of receiving a non-molestation order from the civil court with her new address displayed, her ex-partner was banging on her front door and threatening her. “I was terrified and angry”, Young says. “Any shred of safety I felt was gone in an instant.” It seems that until the courts can address this issue, domestic abuse victims who manage to escape their violent perpetrators will never have their safety guaranteed.

As well as the DVCV Act and the FLA, the Protection from Harassment Act 1997 (PHA), as amended by section 111 of the Protections of Freedoms Act 2012 (PFA) now includes two criminal offences related to stalking. The first offence is “stalking”, contained in section 2(A), whereby a person pursues a course of conduct (does something more than once) which amounts to stalking. This course of conduct amounts to stalking if it amounts to harassment, the acts/omissions are associated with stalking, or if the perpetrator knows or ought to know the course of conduct amounts to harassment. Examples of stalking contained in the PFA include following, watching, or spying on a person.

“Stalking involving fear of violence or serious alarm and distress”, contained in section 4(A), has the same provisions as “stalking”.  However, the persons course of conduct must also cause the victim to fear violence on at least two occasions, or must cause the victim serious alarm or distress, which has a substantial adverse effect on the victims usual day to day activities.

These new offences, particularly the offence under section 4(A), may finally allow domestic violence victims to see action taken against stalkers before they have the chance to cause any more physical or psychological damage. However, although the “course of conduct” does not have to be two of the same incidents (it could, for example, include following a person home one day and breaking their window several days later), this may be harder to implement than is perceived. The PFA does not mention time limits; if the incidents are spread out, will police still treat this as a course of conduct? Some stalking behaviour is also hard to evidence, for example a perpetrator hacking and monitoring a persons online use may be harder to prove than a smashed window.

Solving the problem: what should be done about domestic abuse law?

In order to help domestic abuse victims, it is important that our political and legal systems fully understand the emotional, physical and psychological trauma that victims face. Updating and implementing legislation is only the first step of tackling this huge problem; the government should provide more services to further help victims of abuse, and the effect of domestic abuse on children should also be examined further. More should also be done to safeguard those who order injunctions against former abusers, to ensure they are fully protected.

Until the government, the police and the courts fully understand current domestic abuse legislation, introducing new legislation will only further complicate matters. Only then can the victims of domestic abuse be sure of their safety, and only then will their abusive perpetrators be brought to justice.

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Tagged: Criminal Law, Family Law

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