Modern Domestic Violence Law: Critique and Suggestions

The existing laws on domestic violence

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.

1. 1. Introduction

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^[1]. 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^[2] 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.

2. 2. 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’^[3]

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^[4] 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^[5] 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^[6]. In the crime of Assault a more sophisticated account of domestic violence has been developed to deal with silent phone-calls^[7] 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’^[8] 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^[9]. This in the context of wider legal changes for example the revolution between the dictum in DPP v. Morgan^[10] 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’^[11]. 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”^[12]

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’^[13] 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’^[14]

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^[15] 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^[16]. 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’^[17]. 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^[18] 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’^[19].

‘Harassment’ seems to be an undefined but multi-faceted concept; it includes such nebulous concepts such as ‘alarming the person’^[20] or ‘causing the person distress’ but it must form part of a ‘course of conduct’^[21] 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^[22]. This is as close as the law has come to the calls for domestic violence courts such as there are in the US^[23] 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’^[24]

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’^[25]

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^[26]. 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^[27] 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’^[28]. 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^[29] 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)^[30] 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^[31]. There is clearly in the minds of certain judges what Brasse describes as a ‘hardened’^[32] 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^[33].

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.

3. 3. 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^[34] which has been described as a ‘public statement that domestic violence was a growing and socially unacceptable phenomenon’^[35] and three years later she published the bestseller Scream Quietly or the Neighbours will Hear^[36] 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^[37] which stated the law provided ‘a miserable mouse of protection’. In 1980 it was still thought the marital rape immunity could be justified^[38], 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^[39] 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^[40] 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^[41] 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’^[42]

Thorpe LJ stated that this was the legal position in Foulkes v. Chief Constable of Merseyside^[43] 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.

4. 4. 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^[44] 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^[45] 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.

An