Domestic abuse: will criminalising it work?

News|August 20th 2014

Domestic abuse could soon be made into criminal offense, but will it make a significant difference to the lives of victims?

Home Secretary Theresa May has launched a consultation on the idea of creating a specific offense for domestic abuse cases.

Last year, the government expanded its definition of domestic abuse to include psychological abuse as well as violence within the home. This states that domestic abuse “is a 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 behaviour captured in this definition includes “a pattern of acts of assault threats humiliation and intimidation or other abuse that is used to harm punish or frighten their victim”.

It is undeniably a problem. According to the Office for National Statistics (ONS), seven per cent of women and four per cent of men experience domestic abuse. Those percentages represent about 1.2 million women and 700,000 men.

While there are currently laws which criminalise acts of violence and intimidation, none of them specifically refer to personal relationships. Theresa May said new laws against domestic abuse would be part of an “overarching strategy” to eliminate the problem.

I, however, remain sceptical. The proposal is certainly laudable but, in reality, the burden of proof will make it extremely difficult to enforce.

Additionally, the law could be open to abuse by the very people it seeks to punish. As a family lawyer, I have seen many cases where an abusive or controlling spouse has succeeded in restricting their partner’s access to children.

We family lawyers all know that the main reason (and the fastest way to get divorced) is the Petitioner’s allegation of “unreasonable behaviour” by the Respondent, and the standard to be met is that it “would be unreasonable to expect the Petitioner to continue to live with the Respondent”:- so this typically includes the very behaviour that the Home Secretary would seek to criminalise, given the its definition of domestic abuse. But who would make that call? It would be very tough indeed.

We family lawyers and all those who work in the family justice system know that given the allegation of unreasonable behaviour is the easiest path to a “quick” divorce, the Respondent is almost always advised not to defend the petition. Pressure is applied, even by the courts, not to defend on the basis that it is a waste of time and money, and it gets nodded through.

Respondents are praised for their pragmatic, commercial approach even though they may be furious with the allegations and long to test them out in court. The allegations contained in the petition and nodded through may yet amount to sufficient abuse to warrant a criminal charge and meet the criminal standard, beyond all reasonable doubt. What then of the impact on a divorce and/or family breakdown?

I can foresee a huge sea change procedurally if the offence becomes law, otherwise problems will be piling up for family lawyers and the courts. How could a Respondent to a divorce allow the allegations to get nodded through for the sake of family harmony, but at the same time leave himself open to a prosecution? How would allegations be henceforth dealt with in a divorce?

The obvious answer is, if this is going to become a criminal offence, introduce no fault divorce alongside. Or defended divorces will at a stroke clog up the courts even more… and with the greatest of respect, we don’t need any more of that do we Madam Home Secretary?

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  1. anon says:

    I can see this law being used by domestic violence perpetrators ,who are chameleon characters and although may have trouble turning around something physical this is right up their street.
    Also it is the same problem as in care proceedings how on earth can you measure something as subjective as emotional harm ?
    Lastly the Police very rarely either record domestic violence incidents as crime ( less than 10%) or actually proceed to prosecution. I feel it would be far more useful if the police investigated domestic violence on first being called by a victim, taking a history and recording evidence. It also needs to be publicised in the way that drink driving is.

    • Grace says:

      I disagree with the article’s conclusion as much as with your comment and to be fair, also the “we don’t need anymore from Madam May” was a little pejorative.

      Domestic violence has many characteristics if you like so to describe. The worse harm I believe it is caused by the emotional abuse which comes along with economic abuse. It is hard to identify and the outcome of its harm is only seeing when the victim has lost emotional control and becomes dependant of substances that are damaging and life threatening. Psychology is a science deserving of respect and long reflection. It is indeed very challenging and must as The Law be reflected and translated with caution.

  2. Andrew says:

    anon: You don’t mean Victim, you mean Complainant. As for publicising it, that is a metter for the press to decide.

    But you are right: this is hopelessly vague. Inchoate offences are never conducive to justice and this is as inchoate as they come. The criminal law is not the weapon of choice when people are being horrid to each other.

  3. Master Lord Judge Almighty says:

    I don’t see what the problem is here.

    We’ve already effectively criminalized deadbeat dads, immigrants, Eastern Europeans, the poor, the jobless, the propertyless, hippies, gypsies, squatters, environmentalists, anarchists, muslims, loiterers, journalists, whistleblowers, campaigners, groups of more than six in a public place, anyone who thinks differently.

    What’s another criminal in the police state?

    The advantage of this would be that family courts could be liberated from all the nonsense and games. If you want to allege something, that clearly belongs in a criminal court. This is where the action can be weighed up like any other crime, and punishment assigned.

    Then you would not get family courts badly embarassing themselves and making a mockery of law by hearing endless lies and false accusations but not being able to do anything about them because it is inconceivable to incarcerate a parent for obstruction of justice, knowlingly deceiving the authorities, and causing parental alienation and child abuse (or worse, knowingly using those allegations as an excuse to fall back on the status quo of denying contact with the dad).

  4. Nordic says:

    Dear Marilyn, for once I completely agree with your conclusion! I also think both initiatives would important steps in the right direction.
    Domestic abuse allegations (of any kind) should of course be subject to proper burden of proof and heard in the open and robust setting of the criminal courts. Where allegations are proven there should criminal consequences for the perpetrator. Where allegations are proven to be false, there should be real sanctions for the complianant (regardless of gender and number of kids) The family court mishmash of low standards of proof, private hearings and a 1950s view of gender roles is a danger to the fundamental rights of citizens in this jurisdiction.
    I also strongly believe that no fault divorce should be introduced, subject to a short period of separation (ie. 6 months). Bar cases of DV, it is of course impossible and futile to try to apportion blame for the break-down of a marriage. It takes two to fall in love and marry and it equally takes two to break that bond. This includes infidelity which, in most cases, is not the cause but a symptom of marital breakdown. The current system allows whoever starts proceedings to be portrait as the injured party with the respondent automatically cast as the guilty party. While lawyers tell you to ignore the (often ridiculous) statements made by the petitioner, they can be deeply offensive and the start of all the acrimony and conflict so common in divorce proceedings in this jurisdiction. The current process belongs in a by-gone religious era and is totally inappropriate for a modern secular society.

  5. Andrew says:

    Or if they must bring in this wretched law just add a clause that the contents of a divorce petition and an undefended decree of divorce are not evidence in the criminal courts.

  6. Stitchedup says:

    Of course what hasn’t been said here is that domestic abuse has in fact already been criminalised, albeit through the back door. Any woman can claim to be a victim of, or to be in fear of domestic abuse in the civil courts, and she will almost certainly be able to secure a non-mol/non communication order. The hurdle is low, no burden of proof, just a balance of probability decision. You can bet your bottom dollar that more often than not, a judge will dish out a non-mol to cover their own backsides. Any breach, regardless of how minor, and the accused can find themselves in the criminal courts facing a possible custodial sentence.

    In many ways this is a better tool for the feminists, it means they can have perfectly decent men/husbands/fathers convicted for a domestic abuse/violence offence when it hasn’t been proven they have actually perpetrated any domestic abuse/violence; just fallen foul of dubious non-mol/non communication orders dished out like smarties in the civil courts, often on an ex-parte basis.

    Why would the feminists want to go direct to the criminal courts where a jury will have to decide if any allegation meets the criminal standard, i.e. beyond all reasonable doubt??? surely this would amount to an own goal???

    That said, I guess they could get around this by putting the majority of these cases before a suitably brain washed, politically correct bench of magistrates or an equally brain washed, politically correct District Judge. Then of course the accused is in a position of guilty until proven innocent and they can enjoy witnessing politically correct summary justice and the decimation of a previously close, loving family……. all in the aid of feminism……. Whoopee!!!!

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