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The existing laws on domestic violence
Domestic Violence and The Law
Table of Contents
Part 1 –IntroductionP.1
Part 2 – Domestic Violence & The LawP.1
Part 3 - Where We Have Come FromP.12
Part 4 – Critique and Moving ForwardP.14
- Civil Law ProblemsP.16
- Criminal Law ProblemsP.19
- Conclusions and Some Thoughts For The FutureP.21
Abstract: The author discusses the law’s current response to domestic violence and its’ history from the mid-1970’s. He then discusses the problems inherent in the current Civil and Criminal Law provisions and concludes by suggesting some reform options such as a new jurisprudential approach to domestic violence, new crime of domestic violence and some other ancillary reforms.
The perpetration of various kinds of violence within familial relationships is one of the most insidious problems society faces. The incidence of violence within such relationships is not on the decrease; in 2001/2002 the British Crime Survey reported that there were 635,000 of reported incidents of domestic violence of which 81% were women. One striking statistic is that in England & Wales the police receive a call on domestic violence every minute, this means 1300 calls a day are to report domestic violence. The widespread nature of domestic violence seems to have hardened legal actors such as Judges and Lawyers against the penalising of domestic violence to any great extent. The maximum sentence for breach of civil remedies is 5 years but this is rarely used and problems with the criminal prosecution of perpetrators of domestic violence especially due to victim withdrawal are widespread. In this work I intend to outline the current law as it stands and then critique it using a combination of examples from other countries, conclusions from empirical studies and theoretical underpinning. Whilst I am critiquing the current system I would like to dispel any notions that I am substituting some sort of utopian ideal, I explicitly acknowledge the role of other social actors within the solution to domestic violence such as Police, Social Services, Health Visitors, Probation Officers and many others however the law plays both a symbolic and punitive role in the stigmatisation of certain forms of behaviour and it is the contention of this writer that the law isn’t doing this to a significant enough degree at the moment.
- Domestic Violence and the Law
In discussing the emotive concept of domestic violence it is useful to have a touchstone definition to which we can refer and in doing so I will use the social (if not legal) definition as represented by Women’s Aid:
‘Domestic violence is physical, psychological, sexual or financial violence that takes place within an intimate or family-type relationship and forms a pattern of coercive and controlling behaviour’
As with other social phenomenon the law doesn’t recognise domestic violence as a discrete state of affairs, in that sense it is very much like the law’s treatment of cohabitants in that it isn’t a status like marriage confers or assault confers on other forms of violence but more like a collection of disparate laws with no cohesive recognition of the phenomenon’s existence.
The remit of Criminal Law has obvious application to situations of domestic violence both the ‘Physical’, ‘Sexual’ and ‘Psychological’ aspects of domestic violence can be caught by the traditional crimes of Rape and Assault. The Criminal Law has made some significant advances since the late 1970’s when awareness of the social cost of domestic violence was starting to be comprehended and this very much due to the pressure from certain feminist writers and activists putting domestic violence at the forefront of Criminal Law’s consciousness. One of the major turning points has to be the landmark case of R v. R which criminalised Rape within marriage, prior to this it was felt that the sanctity of marriage and the division between personal and public concerns delimited law’s regulation of a married couple’s relationship. The general trend since R v. R has been a shift away from the rather austere form of legal liberalism that constituted the jurisprudence surrounding domestic violence to a more invasive and paternalistic approach. In the crime of Assault a more sophisticated account of domestic violence has been developed to deal with silent phone-calls that undermine the necessity of assault in offences against the person and the more general recognition that domestic violence can take many forms and cause both psychological and physical harm. In recent years there have been more specific crimes such as the two offences of ‘Harassment’ and ‘harassment that puts a person in fear of violence’ and most recently the crime of breaching a non-molestation order made pursuant to the Family Law Act 1996 Part IV in the Domestic Violence, Crime and Victims Act 2004. This in the context of wider legal changes for example the revolution between the dictum in DPP v. Morgan and the recent Sexual Offences Act 2003 is but one example of where feminist perspectives on issues such as consent and violence have began to pervade legal thinking. This is on top of the Home Office’s ministerial group lead by Baroness Scotland, the appointment of a female solicitor-general and the head of the Family Law Division who is also a female leading to an elevation of domestic violence up the legal and political agenda.
The criminal law has also begun to recognise that the social incidence of domestic violence also requires some from of consideration in the actions of defendants. In looking at all the statistics surrounding the prevalence of domestic violence it is as Wells states ‘reasonable to suppose that on some occasions women kill their partners in order to avoid further domestic violence’. The recognition of the potential problems that spring from domestic violence not only in the positive criminal law sense but also in the more subtle recognition that its incidence gives rise to mitigating circumstances for committing certain crimes is a step forward. Domestic violence is recognised in the law through the two defences of Provocation and Self-Defence. Feminist writers have long criticised the failure of law to realise its gendered nature and nowhere is this more explicit than in this area of law:
‘Feminist legal criticism has consistently argued that that law's universal objective rationality, espoused in common law and precedent, is a validation of male experience, transforming men's experience into an "objective" doctrine which passes for the "normative"
What this means in relation to Domestic Violence is that the law represents self-defence based on a dominant male-norm of an instant snap reaction to events which doesn’t do adequate justice to the female who is subjected to battering and other forms of violence and reacts after a persistent campaign of events rather than the ‘immediacy’ required by self defence or the ‘proportionality’ of provocation.
The use of these defences has generated a lot of material in the legal sphere and whilst this essay is concerned with a review of the laws stance on domestic violence it would not be possible to do full justice to the variations in arguments here. I will therefore outline the issues surrounding the law’s extension of protection to women. In murder cases the issue of provocation is defined by the Homicide Act 1957 as ‘loss of self-control’ and relies on the ‘reasonable man’ test to determine whether his actions were proportionate to the provocation. The major problem for extension of this defence to situations of domestic violence was its reliance on the requirement for elevation ‘of sudden anger above emotions of fear, despair, compassion and empathy’ and its requirement of immediacy:
‘A temporal proximity between the alleged provoking acts and the killing may be required, since a lapse of time between the alleged provocation and the killing is interpreted as time to "cool down" and cooling time has been exclusively regarded as evidence of intention or malice prepensed’
The law of self-defence and provocation has explicitly acknowledged the genderised nature of such defences in many aspects of provocation and self-defence. In the case of Ahluwahlia where Lord Taylor moved away from the requirement of immediacy in the case of sudden and granted legal recognition of ‘battered woman syndrome’ whereby it will be sufficient for years of abuse by a husband of a wife to suffice as provocation for murder. The reason that this is such an issue in the sense of murder is well articulated to be because when a woman attacks a man due to the disproportionate strength they will usually arm themselves before attacking a man, this has two consequences primarily it will lead to more often than not a woman killing when she attacks and secondarily will infer under the reasonable man test that if she has some sort of weapon then there must be pre-meditation. The extension of the law to cover this situation shows law’s dedication to dealing with the potential problems of systemically excluding woman from the law’s protection.
We now turn to consider the use of civil law in dealing with the incidence of domestic violence. There are a lot of advantages in using the civil law over the criminal law and women’s aid has numerated three such advantages. The most obvious springs from one of the major criticisms of the criminal law namely that civil law remedies allow the victim of domestic abuse to be more involved and in control of the process, they can get involved in their solicitor, get the chance to frame the resolution they want and still get some form of justice. The second reason is that civil proceedings will generally be private and not open to the glare of publicity that can surround criminal cases and thirdly the problem of victim withdrawal in criminal law is mitigated because a major reason for withdrawal is the desire to avoid giving their partner a criminal record for whatever reason. Whether this is for pecuniary gain or out of emotional ties to the perpetrator of domestic violence the civil law remedies have the potential to give more palatable and tolerable results to a victim of the domestic law.
The current civil law reinforces the picture that I was discussing earlier with the law seeming to take a non-coherent approach and making domestic violence a social phenomenon which is recognised within the civil law in a disparate and incoherent manner. There is significant overlap between the two major civil remedies for domestic violence; the first is a Non-Molestation Order under Part IV of the FLA 1996, as amended by the DVCVA 2004 and the second is the Civil remedies available under the PHA 1997 particularly s.3 which gives a person who is the subject of harassment a claim for damages based on things such as anxiety caused. The former was specifically designed by parliament to combat domestic violence but the latter has more inadvertently been applied to the domestic violence situation.
‘Molestation’ as used in the FLA 1996 is defined as ‘some quite deliberate conduct which is aimed at a high degree of harassment of the other party…there has to be some conduct which clearly harasses and affects the applicant to such a degree that the intervention of the court is called for’. The distinction between the uses of actual or threatened violence has been obliterated by the introduction of the DVCVA 2004 which makes it a criminal offence to breach a non-molestation order whereas previously there was a distinction between those in which violence was an issue and those were it was not. In the former case there was a presumption of power to arrest and in the latter there wasn’t. The progressive thing about the FLA 1996 is that it allows any number of ‘associated persons’ to apply for a non-molestation order under s.62 (3), this is useful considering the pluralistic nature of familial relations within our society and extends the right significantly to same-sex cohabitants, this demographic always fairly badly within family law and it is hopeful to see the law recognising that domestic violence is a problem across al forms of familial relationships. Woolf J in Crake v. Supplementary Benefits Commission has set out signposts for such relationships which are summarised as ‘membership of the same household, stability, financial support, sexual relationship, children and public acknowledgement’.
‘Harassment’ seems to be an undefined but multi-faceted concept; it includes such nebulous concepts such as ‘alarming the person’ or ‘causing the person distress’ but it must form part of a ‘course of conduct’ therefore a one-off isolated incident will not suffice to sue for the tort of harassment and the act indicates u7nder s.7 (3) that this requires at least two incidences of harassment. Certainly the concept is wide enough to encompass domestic violence but as we can see it isn’t specifically designed to deal with that problem. Whilst s.2 (1) of the act criminalises the behaviour of harassment we can also see how useful the statutory tort is in potentially combating domestic violence, the good thing about the crime as well is that it has both a criminal and civil aspect which can draw on mutual jurisprudence. This is as close as the law has come to the calls for domestic violence courts such as there are in the US which can specialise judges in the types of domestic violence.
As Bird points out however this is not the end of the plaintiff’s options for a remedy within tort, particularly the common law torts of harassment amounting to nuisance, harassment at plaintiff’s place of work and personal injury by molestation are useful in the domestic violence contexts. In particular Bird advises practitioners that the use of the statutory tort suffers from the ‘course of conduct’ limitation whereas in the situation of one violent action followed by threats the common law tort of personal injury by molestation provides an attractive alternative.
The existence of domestic violence inevitably leads to the break-up of certain relationships and the regulation of domestic violence within the break-up of familial relationships is of particular importance. In Scotland, for example, this exact concern can be seen in the background of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. Edwards & Griffiths describe the situations which have given rise to moral opprobrium concerning the imposition of unilateral property rights in morally complicated areas such as when domestic violence occurs:
‘A number of key problems were identified…if the violent partner was the sole owner of the home then he had the sole right … to eject all other inhabitants of the house…e.g. as a reprisal to involving the police…if the victim of violence left the family home to seek respite accommodation elsewhere, she would have no right to re-enter’
In English Law this manifests itself in the FLA 1996 which allows for applicants to apply for occupation orders in various familial relationships generally covering situations of domestic violence; these are to be found in s.33 and ss.35 – 38 of the FLA 1996. The key concept for awarding a party an occupation order lies in the ‘balance of harm’ test which the government gave particular attention to and indicated the intention was to protect the spouses of violent partners:
‘It is likely that a respondent threatened with an ouster on account of his violence would be able to establish a degree of hardship…But he is unlikely to suffer significant harm, whereas his wife and children who are being subjected to his violence or abuse may very easily suffer harm if he remains in the house’
The law is part of FLA 1996 and has as its remit the protection of victims of domestic violence, given the substantial empirical evidence that domestic violence is particularly damaging to children the incorporation of the Child’s Welfare into considerations of Occupation orders will also support the case of victims of domestic violence. In this situation, as with the tort under the PHA 1997, the law has been pro-actively incorporating other familial relationships in particular cohabitation within the statutory scheme. This is a significant step away from the traditional Napoleonic dictum of ‘Cohabitants ignore the law so the law ignores them’. The increasing recognition of different lifestyles outside of the marital relationship is encouraging for society and particularly the recognition that the attachment of legal protection to certain binary relationships is unjustifiable in a society where marriage is no longer the overriding norm.
However, the good-willed paternalistic instincts that underpin the provisions in the FLA 1996 are not translated 100% in to practice. The courts continue to espouse liberal notions of private property rights for example Thorpe LJ in Chalmers v. John stated in relation to occupation orders; ‘it remains an order which overrides proprietary rights and it seems to me that it is an order that is only justified in exceptional circumstances’. It seems somewhat unfortunate that the courts have limited themselves in this manner and undermined the aims of the FLA 1996 in providing significant protection of victims of domestic violence and even more so that in Chalmers the two parties were cohabiting, the obvious implication is that the courts feel to give such validation and power over the cohabitation relationship is far too ‘Draconian’. The obvious disappointment of certain commentators is to be expected given the high expectations that Part IV was held in tackling with the inherent problems under the old Domestic Violence and Matrimonial Proceedings Act 1976 that governed this situation. The nebulous and unarticulated concept of ‘exceptional circumstances’ in which the court will grant an occupation order has merely resuscitated the old law prior to the FLA 1996 which was admitted as giving scant protection to the spouse.
It is certainly a nebulous area because domestic violence that leads to injury or being driven from the family home has been stated as the ‘exceptional circumstances’ envisaged by Thorpe LJ. In B v B (Occupation Order) Butler-Sloss LJ stated this principle, the substantive differences between B v. B and Chalmers merely seems to be the level of domestic violence. In the former there was significant violence which forced the wife to leave the family home however in the latter it seems to have been what is described as a ‘tempestuous’ relationship. There is clearly in the minds of certain judges what Brasse describes as a ‘hardened’ attitude towards domestic violence in all its variations. This is including the consideration of domestic violence in issues of contact and residence and other such family law operations.
I started off this section by arguing that the law has no definition of domestic violence and that it is incoherent and patchy in its recognition. I hope the preceding passage has identified that whilst domestic violence has pervaded nearly every aspect of civil, criminal and family law there is a distinct lack of unified jurisprudence and approach.
- Where we have come from
In accordance with the principle that you can’t know which direction to take unless you know the way you came it is worthwhile analysing the change over time in the law’s approach to domestic violence. In all areas of the law that we have discussed above we see that landmark cases and legislation all date from around the early 1980’s. Cases such as R v. R and Ahluwahlia are in the early 1990’s, Part IV of the Family Law Act 1996 and the PHA 1997 have shown significant advances in both the acceptance and prevention of domestic violence as a real and wide-spread social phenomenon.
We only need to go back 30 years and we can see that the situation was not so rosy for the protection of victims of domestic violence. Erin Pizzey in the early 1970’s really brought domestic violence to the attention of society generally with two important events. The first was that she founded Chiswick Women’s Aid in 1971 which has been described as a ‘public statement that domestic violence was a growing and socially unacceptable phenomenon’ and three years later she published the bestseller Scream Quietly or the Neighbours will Hear which highlighted the inefficiency of the law to deal with domestic violence in a particularly emotive passage where she argues a policemen would arrest and imprison a stranger who was assaulting somebody in the streets for GBH but in the case of domestic violence there would be nothing done by the policemen. This total inaction by the law to prohibit or even facilitate protection or eradication of domestic violence even received judicial recognition in the case of Davis v. Johnson which stated the law provided ‘a miserable mouse of protection’. In 1980 it was still thought the marital rape immunity could be justified, DPP v. Morgan in 1976 had represented the criminal law’s approach to rape. Violence in the domestic sense and its closely allied subject matter violence towards women were both under-developed and very poor.
Attempts to reform the position lead to a confusing and contradictory situation that the FLA 1996 eventually sought to eradicate. The major pieces of legislation between the mid to late 70’s and the FLA 1996 were the Domestic Violence and Matrimonial Proceedings Act 1976, the Domestic Proceedings and Magistrates' Courts Act 1978 and The Matrimonial Homes Act 1983. The statutory scheme was very similar to the current scheme that we have now but had some significant flaws. The availability of Non-Molestation Orders under the DVMPA 1976 was a significant advance in this area but suffered from some large defects. Primarily, it denied access to the system to homosexual couples although it did allow for cohabitants to be recognised. It furthermore denied access to the system by children and other related persons, a problem which was addressed by the FLA 1996 that widened access to the system to ‘associated persons’.
In fact those people who were in unmarried familial relationships were significantly let down by the legal framework provisions such as s.7 of the MHA 1983 which denied the court the right to transfer the tenancy at the end of the relationship to cohabitants. There were a number of such anomalies particularly concerned with the application of property rights. The reification of Marriage within law meant that an abatement of the universal property right was justified in those situations but it wasn’t the same for cohabitants there were anomalies, as discussed the inability of the MHA meant cohabitants had to rely on the DVMPA to found some sort of ouster-order this was unsatisfactory as it required a very high-threshold following the case of Richards v. Richards which thought that their might be abuse of the DVMPA procedure. It was also inefficient as a method of allocating housing because of its short-term nature (the order lasted around three-months). The unequal ground between cohabitants and married couple’s pervades all of domestic relations law but nowhere is it more important than in dealing with domestic violence which exhibits such potential for harm and abuse.
We can also see that up until the early 1990’s the Criminal Law was reticent and there was significant problems with the criminalisation of domestic violence. The predominant reason for this was that the police had a non-interventionist stance as regards domestic disputes which was amply exemplified by the evidence of the Association of Chief Police Officers to the House of Commons Select Committee on Violence in Marriage in 1975:
‘The role of the police is a negative one. We are, after all dealing with persons ‘bound in marriage’ and it is important, for a host of reasons, to maintain the unity of the spouses. Precipitate action by the Police could aggravate the position to such an extent as to create a worse situation’
Thorpe LJ stated that this was the legal position in Foulkes v. Chief Constable of Merseyside where even in relatively recent times the police are still seen as inappropriate to deal with domestic disputes short of criminal acts. This policy has officially changed to a more interventionist stance following the Home Office Circular in 1990 on Domestic Violence but it is arguable whether this has made any practical impact. The perceived private / public dichotomy has caused problems for the true stigmatisation of domestic violence. Bessant argues this has lead to the modern-day approach of choosing escaping domestic violence rather than eradicating domestic violence. The fact that so few cases of domestic violence go to criminal court is worrying when we look at certain statistics such as the fact that civil procedures such as those in the FLA 1996 and the use of non-molestation orders is not mirrored in the criminal law when arguably the two are comparable.
- Critique and Moving Forward
Thus far this work has been concentrating on showing what the law’s stance on domestic violence is and showing the changes that have been made but we have to consider the future because there are existing problems both substantive and theoretical with the current law and a legal scheme that provides some real changes and moves towards a more sophisticated account of domestic violence within society is what I will outline in this section.
Whilst I believe that every legal subject requires an open-minded approach and aversion to stigmatising all forms of behaviour that doesn’t conform to our expectations but a realistic understanding of the horrific nature of some domestic violence at the very least requires the utmost attention from legal scholars. A particularly nasty example is the case of R v. Bedford where the husband doused his wife in petrol and after she refused to sleep with him he set her alight and prevented her from leaving the room. When arrested the husband was quoted as saying ‘You know what it’s like, you know what women are like, I just snapped…’ whilst obviously criminal behaviour such as this will be caught we have to bear in mind that it is violence of this level and sort that we are dealing with. It includes stabbing, raping and humiliating their victims to such a degree that some are willing to kill their partners. Article 3 of the European Convention of Human Rights states ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment’ and as part of our law by virtue of the Humans Right Act 1998 we have to comply with this. Any of our laws that don’t provide adequate support for domestic violence will now be open to challenge via this medium. The substantive law has many specific and more large-scale problems so I will take the approach of starting at the low-level and building up to larger organisational and theoretical problems.
Civil Law Problems
One such specific problem lies in the provisions of ancillary relief on divorce involving domestic violence. This is out of step with other aspects of family law as identified above that have held domestic violence to be of the utmost relevance to issues such as residence, contact and harassment. The failure to recognise domestic violence in the financial division of matrimonial property no longer meets the underlying policy of government to eradicate domestic violence and the acceptance of the courts in recent years of the need to address it as a deleterious social phenomenon. Inglis has argued that the courts are free to take such approach building on existent case-law to allow the judges to take into account the domestic violence in settling a couple’s affairs.
Another identifiable problem with the current system is the role of mediation which is increasingly being used on divorce. The obvious problems of power imbalances leading to a restriction in freedom to talk and the reduced likelihood of a peaceful balanced outcome mean that fundamentally mediation may not be suitable. Yet mediation as an alternative is a prevalent one and does have it’s proponents who argue power imbalances can be rectified by the skilful mediator and in fact empower victims in confronting their attackers. Whatever the merits Greatbach & Dingwall identified a somewhat worrying trend within divorce mediation cases that had incidences of violence:
‘We found that although the mediators did not question the veracity of the reports, they quickly attempted to sideline them by proposing that they lay beyond the scope of the sessions and / or shifting to different topics’
They identify that this organisational outcome is at odds with the stated aims of mediation to include discussions of spousal relationships to establish appropriate future interaction and relationships. They argue on the basis of their findings that across different social classes, mediation techniques and organisational locations there is a consistent sidelining of domestic violence issues within the mediation system. The problem seems to flow from endemic qualities of victims of domestic abuse such as minimising the level of violence in professional situations where they are unsure of how it will be received. It is this tentativeness that Greatbach & Dingwall identify as paramount in the sidelining of it as an issue within mediation. Whilst this is obviously nobody’s fault it seems to be a desperate flaw within a system which is attracting ever increasing numbers that want to avoid the courts. It is exactly these kinds of organisational failings in both the criminal justice system and the private civil law arena which show that domestic violence exhibits the problems inherent in many laws; the gap between empirical reality and theoretical hegemony.
We discussed above the importance of ouster orders under Part IV of the FLA 1996 in providing protection for the non-entitled partner to occupy the family home, this gives both protection to cohabitants and married couples. As I pointed out earlier it is arguable these changes have been illusory in their gains because the case-law still draws upon the concept of ‘exceptional circumstances’ based upon the reasoning that it is a ‘draconian’ measure. There seems to be a distinct malaise within the judiciary to change it’s attitudes, you could look back to a case in the late 1970’s and see that the jurisprudence surrounding the use of non-molestation orders and ouster orders under previous legislation such as DVMPA 1976 and apply it directly today with no real difference. The recent enactment of the DVCVA 2004 forces a change in reference to non-molestation orders but the housing issue remains unresolved. It is quite clear that the parliamentary will is there but the judiciary seem reticent. Ever since the case of Richards v. Richards the courts seem to have been concerned about the potential abuse of property rights by partners that falsely claim domestic violence. There are a number of writers who have identified the problems and the surprise that both victims of domestic violence and commentators must feel when encountering this area is succinctly stated by Andrew Bainham:
‘It ought to be self-evident that domestic violence is about fault…So this is a context in which one might be forgiven for thinking that legal remedies hinge unmistakably on proof of fault. But when we turn to the remedy of the 'occupation order'… we can see that this is a highly problematic proposition’
The obvious aim of the FLA 1996 was to engender a more sympathetic and welfare approach but the Chalmers case just raised the spectre of the old jurisprudence. This places an emphasis squarely on the party at fault rather than consideration of what the demands of welfare require. Where a woman’s abuse is not viewed as serious, such as in Chalmers, then they will be unlikely to succeed in obtaining an occupation order.
In the civil sphere the lack of coherence between the applications of family law, the choice between non-molestation orders and torts arranges a bewildering array of potential outcomes from domestic violence. The problem with the lack of coherence was adequately shown by the recent case of Lomas v. Pearle. This case is ideal in analysing the flaw’s of the current legal framework because of it’s involvement in both the civil and criminal procedures. Mr Pearle was awaiting trial for assault and threatening to kill on his wife and in the mean time Ms Lomas had applied for a non-molestation order under the FLA 1996. This was subsequently breached and the defendant was sentenced to 56 days in prison. When he was released he continued to harass Ms Lomas resulting in further criminal charges and a further 4 Month prison sentence. During his prison sentence he was sentenced in the criminal case to conditional discharge with a restraining order. Then a third time when he was released he continued to persecute Ms Lomas in breach now of two orders both the restraining order and the non-molestation order and again the husband was sentenced to four months. Understandably Ms Lomas appealed against this sentence as unduly lenient. The overlap between common law crimes, non-molestation orders and the provisions of the PHA 1997 were what most occupied the Court of Appeal. They instituted a rule that there should be parity of sentences in all civil and criminal actions to do with domestic abuse under both the PHA 1997 and FLA 1996. This doesn’t do justice, as Burton argues, to the distinct purposes that the criminal provisions in the PHA and the civil provisions in the FLA serve, Thorpe LJ admitted that the law was letting down those who most needed the help of the law:
‘This appeal shows the unsatisfactory nature of the present interface between the criminal and family courts in such cases. It is expensive, wasteful of resources and time-consuming. It is stressful for the victim to move from court to court in order to obtain redress and protection from the perpetrator’
The lack of coherence that I’ve tried to identify throughout this area is omni-present in enforcement issues. Mr Lomas showed a distinct disregard for the authority of law not only in his initial domestic violence but also in his flagrant breach of every order and it is doubtful whether he would have stopped even after his latest prison sentence. This appalling lack of coherence must surely have contributed to the agglomeration of small sentences. He assaulted and threatened his wife and continued to harass her and her young child after she got the authorities involved, the total sentence amounted to about a year in prison. This sort of outcome merely serves to reinforce outdated social norms that somehow domestic violence is more acceptable than random public acts of violence.
Criminal Law Problems
The fragmentation of the civil system whatever its demerits at the very least are relatively accessible to most people. A non-molestation order can be granted in a district court within a 24 hour period. The criminal justice system suffers from endemic organisational failures at the entry, processing and outcome stages.
The police, despite numerous intervention problems, still shy away from intervening in situations of domestic violence but a number of studies seem to indicate that this is tied into the single-largest problem of the criminal justice system. That is namely victim withdrawal. The domestic nature of the violence means that generally witnesses are few and unreliable therefore there is an overwhelming reliance on the evidence of the victim in securing conviction for certain crimes especially assault. The problem is that victims of domestic violence can suffer from a wide range of external influences which may persuade them not to prosecute their partner as Ellison points out these can include ‘reluctance to criminalise a partner, hopes for reconciliation, fear of alienation from families or communities, concern for the welfare of children and a belief that court sanctions aren’t worth the effort’. However, studies seem to have argued that this has now become cyclical; the dependence of prosecutions on the victim which is let down by that very dependence has lead to police only constructing a case where they consider that ‘a complainant would support any police action’. Therefore the perceived likelihood of failure when the victim withdraws has meant the justification by police in not taking action.
Whilst under the Police & Criminal Evidence Act 1984 a wife is compellable in most instances of domestic violence however the policy of the CPS in 2001 was that where a victim withdrew their statement they would only proceed in the more serious cases. It seems distinctly unhelpful to delineate those acts of domestic violence which are prosecuted and those that are not by reference to the nebulous idea of seriousness.
It appears as though at both the police level and the prosecution level the criminal justice system is letting people down. This is probably why studies such as those conducted by Smithey, Green & Giocamazzi find that training is relatively ineffective in modifying police behaviour. The perceived failure at the prosecution stage that means no matter how much training a policeman receives they can’t keep building a case that they believe will be rejected because of lack of victim support. Therefore the suggestions that many commentators such as Ellison have made seem to be the most sensible option for future reform. That is allowing the whole system to shift away from its dependence on the victim to what she calls ‘victimless prosecution’. She draws on the experiences in the San Diego courts that treat cases of domestic violence akin to murder’s they use forensic evidence, witness-statements, photographic evidence and conduct separate interviews with both parties. This has numerous advantages such as removing the potential for indirect influence on their own case by the defendant, removes the psychological harm that can be cause when a defendant is forced to participate within the prosecution and generally insulates the victim from being the centre of the case and the repository for retaliatory violence and intimidation.
Schemes such as these ought to be considered in the United Kingdom because the lack of throughput in the criminal justice system is failing victim’s of domestic violence and the paternalism that has been shown in the FLA 1996 and the civil law framework ought to be mirrored by a more protectionist and interventionist stance from all actors within the criminal law framework.
Conclusions and Some Thoughts for the Future
In summarising the foregoing discussion of the current operation of law in response to the social phenomenon of domestic violence the first thing that strikes the reader is the potential for domestic violence to impinge on many areas of law. The social phenomenon appears in the form of various crimes, civil remedies, contact disputes, divorce proceedings and housing disputes. The pervasive nature of this social phenomenon in my opinion requires a radical overhaul that combines a strong theoretical underpinning with more coherent and streamlined substantive provisions.
The lack of theoretical discussion surrounding domestic violence is unfortunate and whilst there is not the space to outline a full theory I will briefly outline the basics of such a theory. Domestic Violence occurs between two people in an intimate relationship and predominantly is the exercise of power of one party over the other party. I think the concentration on the fact that it is a majority of women who suffer from domestic abuse would be unhelpful given that the law needs to accept homosexual relationships and even transsexual relationships. The ability to fundamentally recognise the use of violence as a form of power within relationships allows us to move away from the concentration on the physical abuse aspect of domestic violence. Whilst cases such as R v. Ireland and R v. Burstow that accept the psychological trauma that can be caused by abusive telephones are a step in the right direction they are not the full solution. The law needs to recognise that domestic violence is wider and fundamentally concerned with stigmatising power imbalances within relationships that society finds unacceptable. Whilst no sane commentator would argue that we ought to regulate every dynamic of the inter-personal relationships but society fundamentally has a role in identifying when the line between normal power struggles within normal interpersonal discourse strays into the territory of unjustified abuse of a position of dominance. This can include the withholding of financial support, the victimisation of a partner by taking advantage of their beliefs or situation e.g. familial disapproval of divorce, use of consistently degrading and abusive language towards a partner and many other such situations. When we begin to see it in this light we can move away from the tired criminal and civil jurisprudence which seems to pervade the law at the moment.
A prime example could be in relation to occupation orders, instead of reifying Property rights we can see them as a potentially problematic exercise of power within an intimate relationship. There is no logical reason why we shouldn’t distinguish between the real right of property as against society which is a respectable, traditional right that forms the basis of modern society and that right as applied against a specific person, namely a person who is in an intimate relationship with that person. The real right against society that is required in a free and liberal society can become a socially undesirable site of abuse and power. If we recognise this distinction a move towards a situation whereby property rights in issues of domestic abuse aren’t given such support, a more reasoned analysis of the power dynamic and the role of the property right in the abuse will provide more just and coherent solutions. This area is only an example though the same logic needs to be applied on a wider scale to all areas of law dealing with domestic violence.
Moving onto more substantive concerns there has to be wholesale reform of the whole law on this area. I wholeheartedly support commentator’s demands for a single unified court on domestic violence. The obvious advantages of having a single court are that it reduces time and stress for the victim, gives more chance of a coherent and principled decision in both the criminal and civil sphere that prevents the problems that occurred in Lomas from happening in future. It is encouraging to see that the Home Office has taken these exact concerns on-board in their 2003 consultation paper. However, these proposals do not go far enough as Burton stated:
‘The criminal law carries the authority of the state and it has been a major concern of government in recent years to emphasise that domestic violence is a crime’
In my mind the best way to do this is to create a specific crime of domestic violence. I respect that some people might argue that the criminalising of a non-molestation order as done by the DVCVA 2004 effectively does this but it is not strong enough. The sentencing limit is 5 years imprisonment and doesn’t do justice to serious cases. In order to symbolise how seriously society stigmatises violence in close intimate inter-personal violence I would advocate the creation of an offence of ‘violence against a person with whom the defendant has a close personal relationship’. Some will argue this would cause unnecessary replication in the law of assault but as we have seen the current law does not criminalise behaviour enough, assault still runs along the lines of a male conception of unacceptable violence such as mugging and brawling in the street. It is unlikely when taking a holistic look at all the jurisprudence that the criminal justice system is going to attach significant stigma to the crime and / or encourage the progressive interpretation of assault so as to include all forms of domestic violence. The dominant paradigm of physical violence ahs been detracted from but it is unlikely withholding of financial support is going to be able to fall within the remit or abuse of the property right is likely to be stigmatised. These forms of behaviour could be caught by a new crime of violence against an intimate person and would be more likely to receive a progressive interpretation given the deference to parliamentary intent within the judiciary.
The move towards ‘victimless prosecution’ has to be applauded as being progressive and allowing the interests of society not be subordinated to the interests of the defendant by the power of intimidation. Society has a real interest in seeing domestic violence eradicated and the problem of victim withdrawal is causing endemic problems for the whole system. The approach of the courts in San Diego is to be admired and advocated as the best practice for police. A move away from the traditional Duluth model of training towards one that emphasises the increasing of investigative practices at the scene of domestic violence can only strengthen the law.
As regards the current mess of civil remedies that govern domestic violence, this ought to be reformed in a package of reforms to the whole of family law. The streamlining into one offence will be difficult because the PHA 1997 has other purposes aside from domestic violence and therefore any new statute will only re-create this dual system. What perhaps is required is an amendment to the PHA 1997 that will combine both the criminal aspect as outlined above and a more progressive civil aspect. The major problem with harassment is the requirement of a ‘course of behaviour’ so I would suggest adopting the approach of a non-molestation order with its more flexible definition of ‘molestation’. Therefore a repeal of FLA 1996 Part IV followed by an amendment to the PHA 1997 to replace non-molestation orders in situations of violence against a person with whom you are in a intimate relationship would be the best option. This would make the system easier and more comprehensive than it already is. Include in this I would make amendments to the relevant acts so that issues such as Contact, Residence, Ancillary Relief, Adoption, IVF and many others explicitly stigmatise domestic violence in a way that creates the right social conditions for a systematic eradication of domestic violence from our society.
In conclusion I have reviewed where we have come from, the existing law and the room for improvement of domestic violence regulation. The law at the moment only recognises domestic violence in an incoherent and incomprehensive manner and this needs to be addressed before the support workers within society can possibly have a hope of really reducing the incidence of domestic violence on a national scale. In doing this I have proposed an outline of what I consider to be the best proposals for circumventing the existing problems that are inherent in the system and that so desperately require rectification.
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 This is under the Protection from Harassment Act 1997 and now more recently with the passing of the Domestic Violence, Crime & Victims Act 2004 to complement the provisions under the Family Law Act 1996 Part IV.
 See Wells (2004) p507
  1 A.C. 599
 Both Wells (2004) & Conway (1994) p.968 make this point
 See Ireland & Burstow  4 All E.R. 225
 ss2 & 4 Protection from Harassment Act 1997
 s.1 which inserts a new s.42A in the FLA 1996
  2 All ER 347
 Wells (1990) p.127
 Edwards (2004)
 s.3 of HA 1957
 Edwards (2004)
  4 All E.R. 889
 s. 3 (2)
 Sir Stephen Brown P in C v. C (Non-Molestation Order:Jurisdiction)  1 FLR 554
  1 AllER 498
 Bird (2003) p.19
 Cited in Bird from the PHA 1997
 s.1(1) PHA 1997
 Bird (2003) in fact cites a number of criminal cases whilst discussing the potential civil remedies it is clear that as a crime and a tort they are both very similar.
 See Burton (2004)
 Edwards & Griffiths (1997) p.301 - 302
 Law Commission Report on the FLA 1996 Part IV
 P.27 Bird (2003)
  1 FLR 392 also cited with approval in G v. G (Occupation order: Conduct)  2 FLR 31
 Quoted in Bird (2005) p. 28
 See Humphries (2001)
  1 FLR 715
 See Brasse (1999)
 See Re M (Contact: Violent Parent)  1 FLR 321 and Bessant (2004) for summary
 See Conway (1994)
 (1974) mentioned in Hale, Pearl, Cooke & Bates (2002) p.399
  AC 264
 Wells (2004)
 see Wright (1989) for detailed analysis
  AC 174
 Bessant (1994)
 Quoted in Hale, Pearl, Cooke & Bates (2002) p.399
  3 ALLER 705
 (1992) 14 Cr App Rep
 Inglis (2003)
 Greatbach & Dingwall (1999)
 This certainly seems to have strong academic support from certain writers and Greatbach & Dingwall (1999) cite 6 studies which have come to this conclusion.
 Op Cit n.46
 Bainham (2001)
  EWCA Civ 1804
 Burton (2004)
 Op Cit n50 at Para 52
 See Smithey, Green & Giacomazzi (2004)
 Ellison (2003)
 From a Home Office Research Study in 1995 Policing Domestic Violence mentioned in Hale, Pearl, Cooke & Bates (2002) p.403
 Hale, pearl, Cooke & Bates (2002) p.407
 Burton (2004)
 Both cited Op Cit n 7
 See in particular Burton (2004) & (2003)
 Burton (2003)
 Op Cit 57
 Smithey et al. n55
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