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?