Criminal law: Tackling domestic violence in the UK

Jun 03, 2019

Written By Sophie Nevrkla

Propelled forward by the #metoo movement, the conversation surrounding domestic violence is gaining momentum in the UK. How has legislation on this issue changed over the years? And, as our understanding of what constitutes domestic abuse changes, how will the law shift to accommodate this?

Last year, New Zealand became the first nation to offer 14 days paid domestic violence leave for any woman forced to flee a violent home. Closer to home, Prime minister Theresa May launched a consultation to seek views on the government’s draft Domestic Abuse Bill last March, which aims to transform the UK’s approach to handling cases of domestic violence.

Such cases have brought a fresh focus on what's often the most private of crimes. Across government, domestic abuse is defined as “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”. But part of the problem is that it has no statutory definition.

Because of this, individuals are usually prosecuted under a range of acts that can be linked to domestic abuse, such as threats to kill, assault or rape. This makes convicting individuals for acts of domestic violence complicated, compounded by the fact that victims struggle to report crimes to the police at all. Figures from the Crime Survey indicate that 26% of women aged 16–59 have experienced some kind of domestic abuse, with 15% of men experiencing the same. But due to low reporting figures, the extent of the crime is probably much worse.

The law has moved painfully slowly with regards to domestic abuse. May’s bill, in her own words, will “seek to put an end to this abhorrent crime for good”, and moves in the right direction by promising to provide a straightforward legal definition of domestic abuse that includes economic abuse and other controlling behaviour. But domestic abuse has been part of society for as long as there have been domestic unions.

Then

In the mid-19th century, there was no conception of the term “domestic abuse”. Men were still responsible for their wives and children, and could use force to control them—though by 1866, laws did exist to imprison men who beat their wives too severely. In 1878, the Matrimonial Causes Act finally made it possible for a woman to seek legal separation from an abusive husband, and in 1891 the right to use corporal punishment on a wife was removed.

However, while a City of London bylaw made it illegal for a husband to hit his wife between the hours of 10pm and 7am, this is only because the noise was keeping neighbours awake. Laws were still made (for the most part) by, and for, men.

It was only in the latter half of the 20th century that things began to change. The Domestic Violence and Matrimonial Proceedings Act of 1976 enabled women to seek a court order against an abusive husband without divorce or separation proceedings. A court could order a man out of the matrimonial home as a result, whether or not he owned it or the tenancy was in his name. The mid-1970s also saw the arrival of safe houses and refuges, opened by women-centred charities such as Rape Crisis and Women’s Aid.

From this point on, the legislation focused on closing the loopholes that allowed women to be mistreated in a domestic setting. The Prohibition of Female Circumcision Act of 1985 made female genital mutilation illegal, with the FGM Act of 2003 and the Prohibition of FGM (Scotland) Act of 2005 extending the legislation to cover acts committed by UK nationals outside of the UK’s borders.

Rape within marriage was made a crime in 1994, with the Domestic Violence, Crime and Victims Act of 2004 making common assault an arrestable offence. In the last few years, the legislative has focused on changing the law to make the non-physical aspects of domestic abuse illegal. Clare’s Law (2014) allows police to disclose details of an abusive partner’s past, while coercive control became a criminal offence for the first time in 2015. Laws such as these have laid the groundwork for the Domestic Violence Bill, announced by Theresa May last year on International Women’s Day.

Now

In the forthcoming Bill, the separate strands of past legislation are brought together to address what domestic violence looks like today. Drafted with help from experts, charities, frontline professionals and those affected by domestic abuse, the new law will—in the words of May—provide a “statutory definition of domestic abuse that includes economic abuse, alongside other non-physical abuse”.

The government promises that the Bill “will better protect victims with new domestic abuse protection orders”, allowing police and courts to intervene earlier and stop abuse from escalating before the situation worsens. This focus on prevention is complemented by the PM’s promise to improve understanding among frontline professionals, law enforcement officers and prosecutors, so they can take action as quickly and effectively as possible.

A large part of the consultation will centre on how to allocate funds. The government promises the creation of a Domestic Abuse Commissioner, to act as a “national champion” for victims and hold the government to account. There will, says May, be £20 million allocated to accommodation-based services, so that women fleeing abusive homes have a safe place to go. This draws influence from the New Zealand model, which emphasises the importance of providing women with support when they choose to flee a violent situation.

May promises that the new bill will allow for tougher punishments in cases involving children. It proposes the creation of a statutory aggravating factor in sentencing, similar to what exists currently in law for hate crimes. This strand of the bill focuses on how to respond in cases of extreme domestic abuse, both to help the victims and convict the perpetrator.

There are other aspects of the Bill that are still being debated, including the potential for Clare’s law to be enshrined in legislation, and proposals to give domestic abuse victims the same status in court as those who have suffered modern-day slavery or sex offences. This would mean that they would be automatically eligible for the range of special measures available in criminal proceedings, including giving evidence behind a screen or via video link.

As well as making practical, concrete changes to UK legislation, this proposed Domestic Violence Bill seems to have a larger, attitudinal shift in mind. In the words of former home secretary Amber Rudd, the bill aims to “fundamentally change the way we as a country think about domestic abuse, recognising it as a crime that comes in many forms”. Rudd adds that the Bill aims to “protect individuals and families at the earliest opportunity” before the abuse “has a chance to escalate”.

This notion of changing the definition of domestic abuse and how we, as a society, frame it, lies at the heart of the Domestic Violence Bill. These comments were echoed by Suzanna Jacob, CEO of SafeLives, who views the consultation on the bill as a “true opportunity to have a national conversation about how to end domestic abuse”, and Jo Todd, founding CEO of Respect, who called it an opportunity to “create a step-change in how we deal with domestic abuse”.

The Future

The first goal will be getting the Bill passed in parliament—at the moment, it is still in the consultation stages. It would be a momentous piece of legislation, but Kate Ghose, CEO of Women’s Aid, has pointed out that the bill cannot and must not exist in a vacuum.

“We want to see the Bill encompass and go beyond changes to the criminal justice system,” she says. Ghose has called for “policies on housing, education, health, immigration and the welfare system, to name but a few, to ensure that every survivor and her child can safely escape domestic abuse”.

Many are calling on the government to pass intersectional laws that will help all individuals, within and beyond the conventional domestic setting. Though prostitution remains illegal in the UK, many sex workers face higher risk of physical violence and sexual assault than the majority of women do in other professions. Often, the legal conversation surrounds the criminal status of prostitutes, with Leeds famously trialling the UK’s first “red light district” in Holbeck last year. Regardless of legal status, sex workers still encounter violence from clients, often in domestic settings; something difficult to prosecute when their profession is a crime in itself.

BAME women in the UK experience higher rates of domestic homicide and are three times more likely to commit suicide than other women in the UK, according to Women’s Aid. BAME women’s experiences of trying to escape domestic abuse may be “compounded by racism” and victims may shy away from speaking to authorities or service providers for fear of a “racist response”.

The network BAWSO (which provides specialist services to BAME women) notes several factors that are likely to make BAME women more socially isolated, including language constraints, immigration status, socio-economic barriers and lack of understanding of BAME cultural or religious issues by mainstream service providers. Women of colour may also experience different forms of domestic abuse and violence than white women in the UK, including FGM, forced marriages and honour killings. In the coming years, it will be important for the government to make laws to accommodate the BAME community and the unique issues faced by women and men in this sphere.

Though domestic violence is an issue that predominantly affects women, 15% of adult men have also fallen victim to emotional, economic and physical abuse, with the recent case of Alex Skeel and his abuse over a three-year period by girlfriend Jordan Worth gaining traction after a BBC Three documentary.

More than anything, education and awareness is key. Along with the government’s prevention strategies and the increased emphasis funding services to help the children affected by it, there may be moves to put domestic violence on the PSHE curriculum or send independent educators into schools, in order to raise awareness at an early stage.

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