Critically discuss whether the range of possible legal responses to domestic violence are sufficient to protect victims.

Introduction

Domestic violence is a common problem. Yet, the effective legal responses to domestic violence have come quite recently. In fact, a statutory definition of domestic violence has been provided as recently as in 2012, under the Legal Aid, Sentencing and Punishment of Offenders Act 2012.[1] Attempts to create legal responses to domestic violence only go back a few debates and can be specifically pointed at in the 1970s, when the increasing strength of the feminist movement was able to successfully demand some legal responses to the problem.

Due to the intimate and private nature of the problem, it is usually difficult to pinpoint the exact extent of the problem. In terms of crime statistics as well, domestic violence has proved to be difficult measure. Part of the problem is that victims of domestic violence do not always come forward to report the crime. The problem of under reporting in domestic violence case is central to the ineffectiveness of the laws in responding to domestic violence.

Domestic violence has increasingly become criminalised under the laws of the UK. On one hand, these measures are important because these demonstrate an attempt to respond seriously to a problem, which has become a serious issue. On the other hand, the increasing criminalisation of domestic violence is criticised on the ground that social problems such as domestic violence cannot be effectively responded to by criminal law. This would suggest that the combination of civil and criminal law for responding to domestic violence is appropriate. However, as this essay will argue, civil laws have increasingly involved the introduction of criminal justice measures within the civil law. This has led to the blurring of lines between civil and criminal justice measures. The downside of this approach is that there is a lack of clear and structured civil law responses or criminal law responses that should have ideally operated in their individual justice systems.

Domestic Violence: The problem and the nature of responses

The seriousness of the problem of domestic violence can be gauged by the recent reports that provide the statistics on the incidence of domestic violence. Statistics reveal that for the period of 2014 to 2015, 8.2% of women and 4% of men reported the victimisation by domestic violence.[2] In sheer numbers, this amounted to 1.3 million females and 600,000 male victims.[3] Furthermore, 27.1% women (4.5 million) and 13.2% men (2.2 million) reported that they had been victims of some incident of domestic in their life.[4] As these statistics indicate, the problem of domestic violence is a serious issue and one that merits a structured and reasoned approach by law and policy. However, such an approach has eluded the government and parliament till this time. This means that despite several initiatives, including laws and social policy initiatives, the problem of domestic violence is common and experienced by many, as evidenced by the statistics.

It is also to be mentioned that one cannot rely too much on the statistics to indicate how far the problem of domestic violence is experienced by people in the UK. This is because the problem of domestic violence is such, being intimate violence, that it cannot be evident until it is reported by the victims. Research suggests that the incidence of domestic violence is under reported.[5] Under reporting is more prevalent in the South Asian and Black-Caribbean communities.[6] Domestic violence reporting shows the applicability of what is termed as ‘dark figure of crimes’ that is difficult to calculate.[7] This makes many victims of domestic violence as ‘invisible victims’, ones that are not seen either by the police or the criminal justice system.

Civil law: Responses and critique

There are a range of civil measures that are provided under the law for the protection of the victims of domestic violence. This section will critically anaylse these measures in the context of how far these measures provide protection to the victim of domestic violence.

The Family Law Act 1996 (FLA 1996) provides two civil measures that can be accessed to by a victim of domestic violence. These measures are ordered by the court on an application by the victim. Under s.42, a victim can apply for a non-molestation order, which requires that the respondent cannot molest the applicant. Here, the application can be made by a person who is associated with the respondent, and in absence of the nature of relationship, an association will be presumed for the purpose of this section.[9] In that sense, there is a widening of the definition of the victim, because earlier only a spouse or a co-habitant could apply for such an order. Therefore, there is a broadening of the scope for the non-molestation order. Molestation itself is not defined, but the case law gives an indication about the range of acts that can be considered to be molestation of the victim. These acts could range from constant calling and pestering of one person by the other;[10] stalking;[11] and sending semi naked pictures to the press for the purpose of humiliating the person.[12] However, simply sending material to the press, which could be harmful for the reputation of the ex-husband, has been held by the court to be not a molestation.[13] This seems to show a dichotomy in how molestation may be perceived in different cases. The justification that in the Johnson v Walton case, there was a deliberate intention to humiliate the victim can also be applied in C v C, where the wife has sent private and personal information to the press, which may also humiliate the husband.

The Domestic Violence, Crime and Victims Act 2004, has been another attempt by the legislator to respond to domestic violence. Section 1 of the Act has amended the FLA 1996 to insert s.42A, which is the offence of breaching a non-molestation order. However, there seems to be a deliberate attempt by the parliament to penalise the non-compliance with what is a civil law order. Thus, this just leads to the blurring of boundaries between the civil law and the criminal law. This is not a desirable position because it fails to provide a coherent framework within the civil law for the purpose of preventing or controlling the incidence of domestic violence.

The question whether civil law remedies have proved themselves to be competent to prevent future violent conduct remains relevant. Recent research shows that there is a decline in the applications for non-molestation orders.[15] One of the reasons why there may be a decline in applications is that the victims may consider that there is a better access route in criminal law.[16] Therefore, victims may prefer criminal law route for protection of domestic violence rather than the civil law remedies, including of non-molestation orders. In other words, the civil law remedies may not be seen to be as efficient in providing protection to the victims of the domestic violence.

The second civil law measure under the FLA 1996 is the provision of the occupation order, as per which, the respondent can be made to leave the family home and stay away. The order is provided for under five different sections of the Act, which are, ss.33, 35, 36, 37 or 38. As the occupation order relates to removal of a person from the family home, the different sections ensure that the differing levels of interest in the property is covered by the law. In the making of the order, the courts apply the ‘significant harm test’ in order to balance the conflicting interests between the parties.[17] Specific questions relating to whether significant harm is seen in a case, are provided under s.36(8) and include considering the interests of any children that may also be involved in the case.

A question arises as to whether the occupation orders and other civil remedies, are effective methods of controlling domestic violence. This was sought to be answered in a report in 2005.[18] The report found that despite the criminalising of the non-compliance with the orders, there was no decrease in the non-compliance incidence.[19] The report also found that there was a decrease in non-molestation orders, although occupation orders had decreased.

At this point, it is pertinent to emphasise that the measures under the FLA 1996 are provided to give respite to a person who is threatened by an abusive partner, so that the abuse can be prevented by application and orders, which are, non-molestation orders and occupation orders. However, the provision of these orders have not been effectively seen to have allowed the victims the remedies that the law sought to provide in the first place.

The domestic violence protection orders are issued to ensure that a suspected perpetrators leave the house where the victim is also residing.
The Protection from Harassment Act 1997 (PHA 1997) provided for non-harassment and restraining orders against threatening or abusive partners. These are also civil law remedies for the victims of domestic violence and indeed the PHA 1997 was enacted specifically as a civil law, although in recent times, amendments to the PHA 1997 have allowed penal provisions to be inserted in the law. The PHA 1997 has recently been amended to provide for the offence of stalking, again blurring the lines between civil law and criminal law.

Criminal law: Responses and critique

The domestic violence problem has received more attention from the criminal law justice perspective in the recent times. Although, responses by law to domestic violence are technically categorised as criminal law or civil law responses, there is a blurring of the lines between the criminal law and the civil law over a period of time. This is evident from the introduction of criminal law justice elements within the civil law measures provided under civil laws such as, the FLA 1996 and the PHA 1997. Therefore, greater criminalisation is evident in government responses to domestic violence. The problem with this approach has been articulated by some scholars and commentators, who argue that domestic violence is a complex social problem and criminalising it reduces the problem to the pathologising of the individual perpetrators and victims.[22] It is argued that the criminal justice system is not the best way of resolving complex social problems, such as domestic violence.[23] However, it is also to be noted that in many instances, domestic violence is of such a nature that the invoking of the criminal law is not only necessary, it is inevitable. This is evident from the response of the government to the high profile Clare Wood murder in 2011, which led to the government creating a disclosure scheme (Clare’s Law) for England and Wales. As per this scheme, the perpetration of violence between intimate partners was sought to me mitigated by the introduction of a system which would allow the sharing of information about prior histories of violence. However, there are complex questions of privacy that are involved in the implementation of the scheme, which makes it necessary to question the nature and effectiveness of the scheme.

Criminal law has been found necessary in cases where the victim of domestic violence suffers such violence that criminalisation of the act and offender becomes necessary. This has been seen in cases involving marital rape. The courts have responded by criminalising marital rape, although no such offence existed in the common law at the time.[25] Also important is the fact that in the social context, rape has never been considered to be an offence against the wife. Therefore, it is clear that certain kinds of domestic violence will find criminal law response necessary. Social or civil law responses may not be sufficient to deal with such offences.

Despite the use of criminal law to punish domestic violence, there may still be problems of under reporting the crime. There are many complex factors that are responsible for under reporting. However, from the perspective of the criminal justice, one factor that may prevent a victim from reporting the crime of domestic violence may be that the victim may not be confident about the criminal justice system. In R v McNaughten,[26] the case which had gone to trial saw the victim having to relive her experiences and having her testimony challenged. This creates a negative impact for victims. For women who are victims of domestic violence, the situation is further complicated by the issues of victim blaming and limited options for support and protection.[27] Therefore, even when there are criminal law protections for domestic violence victims, the victims themselves are at times faced with barriers to asking for help. This frustrates the entire purpose of the law. It is also important to note that the nature of barriers becomes even more complicated in case of women who belong to the South Asian communities[28] and immigrant women.[29] Women in such situations are more vulnerable and the law is yet to respond to such vulnerabilities.

Recommendations

Based upon the discussion in the essay, a recommendation is made that there is a need to separate the spheres of civil and criminal justice systems as far as responses to domestic violence are concerned. It is also important that the remedies given under the civil laws are bolstered by other measures within the same law, which are aimed at strengthening the system. The present blurring of the civil and criminal law does not help to create a more efficient system for controlling or preventing domestic violence.

It is also suggested that victim surveys should be conducted locally so that the accurate data regarding victim numbers can be collected.[30] Victim specific surveys that seek to collect information from domestic violence victims will be helpful in getting more accurate data that can shed light on particular victimisations and or domestic violence incidence with respect to a particular group of victims.[31] This may help to understand the specific problems or experiences of certain groups, which will help to devise strategies for that group. For example, if such surveys are able to produce relevant information about the reasons why South Asian women do not come forward to report violence, then the government will be able to construct a social policy for responding to the problem.

Conclusion

Responses to domestic violence are provided under both the civil as well as the criminal law. One drawback of the civil law responses is that there is a deliberate attempt to include penal provisions within the civil law. This is not appropriate as there is a blurring of the lines between civil and criminal justice system. Both civil and criminal justice systems serve specific purposes in the administration of justice. With respect to domestic violence, civil law seeks to provide remedies by preventing future violent conduct. On the other hand, the focus of the criminal law is to punish the perpetrator. By blurring lines between civil law and criminal law, the law creates a confusing structure, which does not lead to effectiveness.

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