Defining Domestic Violence: An Urgent Note of Concern regarding the Domestic Violence Bill

SUMMARY

1.          There are deficiencies in the drafting of the Bill that; a) could prove counter-productive and allow the use of protection notices to be weaponised against the real victims of domestic violence; and b) create a risk that vulnerable people who lack capacity or who have a mental impairment may be unfairly criminalised.  

2.          The definition of “domestic abuse” is insufficiently defined and likely to result in inconsistent and ineffective policing.

3.          There are a lack of procedural safeguards to address the following:

i.               To ensure that the complainant is at a genuine risk of suffering emotional or physical harm;

ii.              To prevent abusers from making false or exaggerated reports in order to obtain a powerful mechanism by which to control their victim;

iii.            To prevent abusers from claiming they are being subject to psychological or emotional abuse in respect of behaviour on the part of their victim which is engendered only by the abusive behaviour (the ‘nagging wife’ complaint);

iv.            To prevent the criminalisation of vulnerable adults who for reason of a disability (such as a learning disability or mental health condition) may be unable to comprehend that their behaviour is abusive or to moderate their conduct.

4.          It is proposed that significant changes be made to the Bill to address these problems.  In addition:

i.               s 30(5) additionally should prevent the making of a protection order against a person who for reason of their disability is unable to understand the consequences of,  or to moderate their behaviour. 

ii.              s 34(1)(a) to comply with the Equality Act 2010 and the Human Rights Act 1998 additionally should prevent the imposition of restrictions that conflict with a person’s “other protected belief”.

SUMMARY OF THE PROCEDURE

5.          Legal Feminist is concerned by the process for the making of a domestic abuse protection notice and a domestic abuse protection order under Part 3 of the Bill.  This provides for a procedure as follows:

i.               A domestic abuse protection notice may be issued where a senior police officer has ‘reasonable grounds for believing’ that abuse has occurred and that it is necessary to issue a notice to protect the victim from domestic abuse (s 20(3)&(4));

ii.              Where a notice has been issued, the police must within 48 hours make an application to the magistrates for a domestic abuse protection order (s 26(3));

iii.            The magistrates will make such an order when satisfied, on the balance of probabilities, that the abuse complained of did occur and that it is necessary and proportionate to make the order to prevent domestic abuse or the risk of domestic abuse from occurring (s 30(1)&(2));

iv.            Before making a notice or order the wishes of the victim and views of the alleged perpetrator must be considered but are not determinative of the decision (s 22(1) & s 31(1));

v.             It is not necessary for the victim of the abuse to consent to the making of the notice or order (s 22(4) & s 31(3)). 

vi.            As to the content of an order, s 33(1) provides that:

“A court may by a domestic abuse protection order impose any requirements that the court considers necessary to protect the person for whose protection the order is made from domestic abuse or the risk of domestic abuse.”

vii.          A person commits an offence if without reasonable excuse they fail to “comply with any requirement imposed by the order” (s 37(1)).  The offence is both summary and indictable, with a penalty of a fine and/or maximum of 12 months imprisonment for the former and 5 years for the latter (s 37(5)).

6.          The definition of “domestic abuse” is set out in s 1.  This section contains the totality of the definition.

1 Definition of “domestic abuse” 

(1) This section defines “domestic abuse” for the purposes of this Act. 

(2) Behaviour of a person (“A”) towards another person (“B”) is “domestic abuse” 5 if— 

(a) A and B are each aged 16 or over and are personally connected to each other, and 

(b) the behaviour is abusive.


(3) Behaviour is “abusive” if it consists of any of the following— 

(a) physical or sexual abuse;

(b) violent or threatening behaviour

(c) controlling or coercive behaviour; 

(d) economic abuse (see subsection (4)); 

(e) psychological,
 emotional or other abuse;


and it does not matter whether the behaviour consists of a single incident or a
course of conduct. 

PROBLEMS 

7.          We consider this section to be problematic, for the following reasons:

i.               Defining “abusive” behaviour as “other abuse” is circular in its reasoning;  

ii.              There is no necessity for proving that the ‘victim’ of the behaviour finds it abusive;

iii.            There is no requirement that the ‘perpetrator’ understands (or should reasonably understand) that the behaviour is abusive;

iv.            There is no requirement to show that any further instance of domestic abuse has occurred following the making of an order, as the offence lies only in breaching the conditions of the order; such conditions may be ‘any’. 

8.          Legal Feminist highlights two potential scenarios in which the lack of requirement to prove either the perception of the ‘victim’ or of the ‘perpetrator’ could result in unintended and unjust consequences:

i. Use by perpetrators of domestic abuse to further persecute their victims.  

9.          Members of Legal Feminist are familiar with the current use and misuse of Domestic Abuse protections and how domestic abusers manipulate the system so that victims often end up re-victimised by the very system which was designed to help them. [2]

10.       Not all victims of domestic abuse are silent victims.  Many women[1] do shout back, argue, complain etc or even at times attempt to defend themselves physically.  Such attempts at resistance do not reflect the power imbalance or mean that they are not ‘properly’ victims of abuse at the hands of their violent male partner.  

11.       It would become possible in this scenario for the abuser to report to the police that he has been struck on one occasion by his female partner and to persuade the police to issue a protection notice.  Whilst the police are obliged to take into account any representations made by the alleged perpetrator (in this case the woman), they are not obliged to seek out any representation or to properly investigate or challenge the account given by the alleged victim (in this case the man).  On production to court, the magistrates can proceed to issue a protection order even if the man does not attend (it is not possible to for a summons to be issued for his attendance s 26(8)(b)).  They can find on the balance of probabilities that abuse has occurred without any investigation as to whether the man truly suffered any emotional or physical harm, and without there being any investigation as to the background of the relationship that may have caused the woman to react as she did.  The making of a protection order would then be a powerful tool that the abusive man could use to control the actions of the woman.  

12.       This risk of misuse becomes increasingly difficult to guard against when the ‘abuse’ complained of is “psychological, emotional or other abuse”.  Complaints of controlling behaviour may in fact be explained by the fact that the man is frequently absenting himself without explanation because he is being sexually unfaithful, or is spending scarce family money on gambling, alcohol etc.  Women writing for organisations such as transwidowsvoices.org have recorded that when transitioning to a female identity their male partners have accused them of emotional abuse when they have referred to them by their male name or allowed their children to call him ‘dad’.  

13.       Where a woman is a victim of domestic violence, she may not be ready to reveal that this is the case, fearing for her own or her children’s safety, or due to financial or accommodation worries.  She may prefer to take the consequences of accepting the protection order rather than incur the wrath of her male partner by revealing to the police or magistrates the truth of their relationship.  The proposed procedure risks pushing her into a situation for which she is not ready and which may in fact be harmful to her interests.  

14.       Procedural safeguards need to be built in to ensure that the alleged victim is truly at risk of suffering emotional or physical harm and to prevent the process from being abused.

Criminalisation of Vulnerable Adults

15.       The combined factors of the lack of requirement of intent to abuse and the negation of a requirement for consent by the victim leads to the potential for the criminalisation of vulnerable adults with behavioural or learning disabilities.  

16.       For many adults with such disabilities, home is a safe place where they can vent their feelings of anxiety and frustration that they have to work hard to conceal from the outside world.  This often is expressed by verbal outbursts and other behaviour that may in other be considered to be abusive.  Whilst there is certainly more scope for providing support to the family members who live with such vulnerable adults, it is unlikely to be in the interests of either party to criminalise the vulnerable adult and may cause considerable upset to the family members.  

17.       We recommend that at s 30(5) the wording is amended to state “or who for reason of disability is a) unable to comprehend that their behaviour is abusive, or b) is significantly impaired in their ability to moderate their behaviour to refrain from the abusive conduct.

Legal Feminist

15 March 2021


[1] We recognise that people of either sex can be a perpetrator or victim of abuse, but for simplicity give examples here of typical patterns of male abusive behaviour against a female partner.

[2] One of the barrister members of the Legal Feminist collective has been involved in four separate public law cases involving the existing Domestic Violence Prevention Notice (“DVPN”) regime. She stresses that these cases may not be typical or representative of the use of DVPNs; as in general few DVPNs end up as public law cases.

In each of these four cases, a DVPN was served upon a woman. In each case, the woman had previously been the complainant in a domestic violence case in the criminal courts, or the beneficiary of a non-molestation / occupation order in family law, or both.

In two of the cases, the service of the DVPN meant that both the woman and her child(ren) had to leave their home immediately to go to a hotel or hotel. In the other two cases, the woman left alone (one had no children, in the other case, the teenage children remained at home). It is noteworthy that the police had not completed the paperwork properly in two of the cases. In one case, no reason was given for the issue of the DVPN at all

Legal Feminist holds serious concerns that in at least some cases, the police have issued a DVPN against a woman who has already been a victim of domestic abuse, affecting children as well as women.

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One thought on “Defining Domestic Violence: An Urgent Note of Concern regarding the Domestic Violence Bill”

  1. ” To prevent the criminalisation of vulnerable adults who for reason of a disability (such as a learning disability or mental health condition) may be unable to comprehend that their behaviour is abusive or to moderate their conduct”

    What alternative is there?
    To determine by fiat that someone is a dangerous loony so should be treated with kindness, respect, and locked away somewhere where they can’t hurt others, is open to abuse, without constant and trustworthy review.

    It may be the criminal courts are the best way of protecting the accused’s rights.

    Yet we have to protect the victim of violence too.

    I don’t know the answer here. There may be no universal one size fits all solution. I’m ignorant both of the UK court processes, and the non judicial alternatives.

    Decades ago, I listened to the testimony of a retired Circus -er Circuit judge in the Northern Territory. One case that affected him deeply was that of a First Nations grandmother/great aunt who had been entrusted with the care of grandchildren, nephews and nieces.

    There was a drought, and although plenty of food was available through the usual social safety nets, it was a “hungry time”. So of course, in an act of mercy, she acted in accordance with customary law and filled their mouths with sand, euthenasing them.

    There was a question of intellectual competence, senile dementia, but it seemed from her heartbroken testimony that she deeply regretted the necessity of her actions. It was the “done thing”, had been for millennia, in order to reduce misery and raise the chances of survival of the family/tribal group. She was judged intellectually competent.

    Criminalisation was not appropriate, to fine or imprison her would be bizarre, surreal.

    An order was entered under both formal territory and tribal customary law for her never to be allowed custody of children again, under any circumstances. Both the whitefella legal system and tribal elders bodged it to try to come up with something resembling justice, as neither written law nor tribal custom had answers. In theory, the judge should have had the book thrown at him, but I can’t say he was wrong, though his actions were ” highly irregular” if not downright illegal, despite the lattitude given Circuit courts for the exercise of discretion in nebulous areas where written law and tribal custom collide.

    Rather you than me. This is hard. Thank you for trying to deal with this scourge.

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