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Domestic AbuseLecture 1: Identifying Domestic AbuseDefining Domestic AbuseViolence or abuse?Cross government definition- Incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse - Between those 16 or over - Who are or have been intimate partners or family m...

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Domestic Abuse Lecture 1: Identifying Domestic Abuse Defining Domestic Abuse Violence or abuse? Cross government definition -

Incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse Between those 16 or over Who are or have been intimate partners or family members regardless of gender and sexuality

LASPO Definition Legal Aid, Sentencing and Punishment of Offenders Act 2012: -

‘domestic abuse means any incident or pattern of incidents, of controlling, coercive, or threatening behaviour, violence, or abuse (whether psychological, physical, sexual, financial, or emotional) between individuals who are associated with each other, Sch. 1 para 12(9)

Cross government definition -

Abuse can encompass, but not limited to: psychological, physical, sexual, financial, emotional Controlling behaviour: acts designed to make a person subordinate/dependant Coercive behaviour: acts/abuse used to harm, punish or frighten

Yemshaw v Hounslow London Borough Council [2011] UKSC 3 Married woman scared of her husband, claiming emotional, psychological and financial abuse. Applied to the Hounslow LBC for accommodation after being forced from the matrimonial home by the alleged abuse, but the council refused to rehouse her and her children -

Housing Act 1996: council only rehouses when it becomes unreasonable to continue living in the home. It would be unreasonable if there had been domestic violence

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‘Was this, in reality, simply a case of marriage breakdown in which the appellant was not genuinely in fear of her husband; or was it a classic case of domestic abuse, in which one spouse puts the other in fear through the constant denial of freedom and of money for essentials, through the denigration of her personality, such that she

genuinely fears that he may take her children away from her, however unrealistic this may appear to an objective outsider?’ (at 36) Appellant said that the term ‘domestic violence’ in the Act was not intended to apply only to physical violence Her appeal succeeded. The term ‘domestic violence’ had come to acquire a meaning beyond physical violence only. The term was not a term of art, but many have several meanings, and these included definitions given in the court’s own practice directions: ‘Domestic violence’ includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly may give rise to the risk of harm’

Family Proceedings Rule 2010 (Amended 2017) ‘[D]omestic abuse includes any incident or pattern of incidents of controlling, coercive, or 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. This can encompass , but is not limited to psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse, including but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment.’ Southall Black Sisters

Government’s definition and Reform Proposals ‘Controlling behaviour is: a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour. Coercive control is: an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim’. (Home Office, Domestic Violence, 2012)

Coercive Control •

Understanding patterns of behaviour as inherently harmful, regardless of instances of physical violence

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‘Most abused women have been subjected to a pattern of sexual mastery that includes tactics to isolate, degrade, exploit, and control them, as well as to frighten or hurt them physically’ […] coercive control is a reality many abused women face and is a form of gendered subjugation – E. Stark, Coercive Control: How Men Entrap Women in Personal Life (Oxford University Press, 2007)

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‘Coercively controlling men can also make women “question their own reality” by thinking they can “go mad”.’ A Barnett (2017)

Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] •

Courts should “prioritise consideration of whether a pattern of coercive and/or controlling behaviour is established over and above the determination of any specific factual allegations

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Abuse does not always end when a relationship does and that, even with an injunction in place, subtle forms of abuse can persist.

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The judges said regarding coercive incidents that occurred between adults when they were in a close relationship as being “in the past”, and therefore without relevance when assessing risk of harm in future, should be considered “old fashioned and no longer acceptable”.

Domestic Abuse Act 2021

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An Act intending to: "further improve the effectiveness of the justice system in providing protection for victims of domestic abuse and bringing perpetrators to justice, and to strengthen the support for victims of abuse and their children, provided by other statutory agencies”

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Received royal assent in April 2021

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Provides a statutory definition

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Establishes an independent office of the Domestic Abuse Commissioner to encourage good practice in preventing, detecting, investigating and prosecuting domestic abuse and providing protection and support to those affected.

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Creates new powers: a "domestic abuse protection notice" (DAPN) and "domestic abuse protection order"

Section1: 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” 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.

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(4)“Economic abuse” means any behaviour that has a substantial adverse effect on B’s ability to— • (a)acquire, use or maintain money or other property, or • (b)obtain goods or services. (5)For the purposes of this Act A’s behaviour may be behaviour “towards” B despite the fact that it consists of conduct directed at another person (for example, B’s child). (6)References in this Act to being abusive towards another person are to be read in accordance with this section. (7)For the meaning of “personally connected”, see section 2.

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Definition of “personally connected” (1)For the purposes of this Act, two people are “personally connected” to each other if any of the following applies— (a)they are, or have been, married to each other; (b)they are, or have been, civil partners of each other; (c)they have agreed to marry one another (whether or not the agreement has been terminated); (d)they have entered into a civil partnership agreement (whether or not the agreement has been terminated); (e)they are, or have been, in an intimate personal relationship with each other; (f)they each have, or there has been a time when they each have had, a parental relationship in relation to the same child (see subsection (2)); (g)they are relatives.

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(2)For the purposes of subsection (1)(f) a person has a parental relationship in relation to a child if— (a)the person is a parent of the child, or (b)the person has parental responsibility for the child. (3)In this section— “child” means a person under the age of 18 years; “civil partnership agreement” has the meaning given by section 73 of the Civil Partnership Act 2004; “parental responsibility” has the same meaning as in the Children Act 1989 (see section 3 of that Act); “relative” has the meaning given by section 63(1) of the Family Law Act 1996.

Situating Coercive Control -

DAA 2021 focuses on behaviour instead of taking a gender-neutral incident-based approach. Overlooks the gendered reality of domestic abuse (Bishop 2021) LASPA 2021 definition diluted the realities of abuse by wording such as ‘incident’ because this is constructed upon a male-based perception of what constitutes domestic abuse (Kelly and Westmarland 2016)

Why not just leave? ‘probably one of the most frequently asked questions for those who witness a woman suffering domestic violence. Implicit in this question is frustration and mystification that women are failing to ‘look after themselves’ and often their children, by remaining caught in a web of violence or abuse. This individualising discourse places the responsibility on the woman for leaving herself open to continued violence and abuse. It further implies that there is a clear line separating her life in the abusive relationship and the safety and security which awaits her once she separates.’ (Humphreys and Thiara, 2003, 195)

Strong vs Weak •

‘Domestic violence, of course, is a term that covers a multitude of sins. Some of it is hideous, some of it is less serious’ LJ Ward, Re P (Children) [2009] 1 FLR 1056, para 12

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“The everyday emotional ups and downs of living together, of commitment itself, are now treated by officialdom as terrible instances of ‘abuse’ which might require

intervention of the state” – B O’Neill, ‘A Liberal Critique of Gay Marriage’, in A de Waal, The Meaning of Marriage (eds) (Civitas, 2013) 41 •

M Madden Dempsey (2006): •

‘Strong sense’: illegitimate violence, domesticity, structural inequality

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‘Weak sense’: domesticity and structural inequality •

‘The patriarchal character of individual relationships cannot subsist without those relationships being situated within a broader patriarchal social structure. Patriarchy is, by its nature, a social structure – and thus any particular instance of patriarchy takes its substance and meaning from that social context.’ (2007)

Causes of Abuse No one theory can explain all instances of domestic abuse, however some factors can increase risk -

Men, those with criminal convictions, substance abuse, Psychological •

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Social structure •

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‘deviant’ individuals, predisposed to violence (Miles, 2001). British Crime Survey: 32% of incidences occur after alcohol

Unemployment, poverty, bad housing, poor communication . More social stress = greater likelihood of conflict occurring in family (Gelles, 1993)

Patriarchal society •

Male violence against women is viewed as a mechanism of social control and domination within marriage and marriage-like relationships (Martin, 1976)

DA and Lockdown •

The difficulties experienced by victims have only been further exacerbated by lockdowns (Vicki Morris, Tackling the domestic abuse pandemic: a problem-solving approach, [2021] Family Law 3)

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Although injunctive relief is available to victims, government guidance in relation to this is based upon the inaccurate presumption that victims can find a safe place from their abuser to complete the necessary formalities such as the application and drafting a witness statement (A. Speed, C. Thompson and K. Rchardson, ‘Stay Home, Stay Safe, Save Lives? An Analysis of the Impact of COVID-19 on the Ability of Victims of Gender-based Violence to Access Justice [2020], Journal of Criminal Law, 84 (539))

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Children whose only safe space away from domestic abuse is school were particularly affected. Children going unnoticed. Ben Donagh, From Unnoticed to

Invisible: The Impact of COVID-19 on Children and Young People Experiencing Domestic Violence and Abuse, Child Abuse Review Vol. 29, 387-391 (2020) Morley & Mullender, Preventing DV to Women, 1994 ‘Attempting to isolate particular groups of people print to DV may be defended as a way of furthering an understanding of the causes and hence cures of the problem. However, the message from research is clear. While class, ethnicity, drinking, childhood experiences and indeed other psychological/social factors may in some cases contribute to the establishment of violent relationships and/or their continuation, domestic violence to women is far too common throughout society to isolate specific groups as constituting the problem.’

Gendered Abuse women are as likely as men to perpetrate violence against a partner But, overwhelmingly men perpetrate violence against women ‘women’s violence does not equate to men’s in terms of frequency, severity, consequences and the victim’s sense of safety and wellbeing.’ Dobash & Dobash (2004): •

Ruth Mullen, No safe haven? [2019] , New Law Journal 169 NLJ, p 15

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Charlotte Bishop, Prevention and protection: will the Domestic Abuse Act transform the response to domestic abuse in England and Wales?, 163 Child and Family Law Quarterly [2021]

786,000; 32.94% 1,600,000; 67.06%

Women

Men

Office for National Statistics, "Domestic abuse in England and Wales overview: November 2019

Male Victims •

Women-on-men abuse differs in terms of the frequency of the violence and thus the severity and consequences of the abuse. R Dobash and R Dobash, Women’s violence to men in intimate relationships, British Journal of Criminology (2004)

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Reluctance to report. 1 in 6 males is an under reporting of the true number of males that are affected’. Richards, Male victims of domestic abuse: the difficulties faced in court proceedings (2018), Family Law 1047

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Consequence of ‘hegemonic masculinity’,. Martin, ‘Debates of Difference: Male Victims of Domestic Violence and Abuse’, in V Bettinson and S Hilder (eds), Domestic Violence: Interdisciplinary Perspectives on Protection, Prevention and Intervention (Palgrave, 2016)

DA in Same-Sex Relationships •

“Donovan and Hester (2014): love and violence in heterosexual and same-sex relationships for domestic violence and abuse being similarly constituted in relationships of power and control as feminists have argued.”

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“survivors rarely seek help from formal agencies such as the police or specialist domestic violence services because of their fears of not being believed, their experiences being minimised, or because they feared experiencing homo/bi/transphobia from professionals/practitioners” (Donovan and Barnes, 2019)

Statistics •

26% of women (4.3m), 15% of men (2.4m) 16-59 up to 2017

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Largest cause of death worldwide women 19-44

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113 women killed by men in the England, Wales, N in 2016

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14% of all prosecutions are DA related

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Since the age of16: •

26% of women (4.3m) and 14% of men (2.2m)

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Women more likely to have experienced sexual assault since 16 (19.9% v 3.6%) and rape or assault by penetration (6% v 0.5%)

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For men, the most commonly experienced abuse: stalking (9.9%) and non-sexual partner abuse (8.9%)

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7 in 10 homicide victims were male 3 in 10 were female

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Female homicide victims more likely to be killed by partner or ex-partner (44% v 7%)

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Men more likely to be killed by friends/acquaintances (35% v 13%) or strangers (27% v 9%)

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The minimum cost of violence against women and girls in the UK is £37.6bn.

Lecture 2: Non-Molestation Orders Historical Overview and the Public/Private Divide Only in recent years has domestic abuse been regarded as a social problem that required state intervention, traditionally this state would rarely intervene in matters of family life State intervention is about trying to protect people and protect V’s. The fact that domestic abuse occurred within the private realm of the family meant that in social consciousness and in the law, it was to be regarded as a private matter; that the law needn’t get involved with, ‘family matter’ Historically a husband was responsible for his wife’s behaviour and as such he had the right to chastise her (women were seen as property when they were married, and before marriage they were seen as property of the father). Family law deals with the evolution of women Therefore family law was previously non-interventionist, it wasn’t appropriate to intervene in family matters Doctrine of Coverture, Blackstone 1778 (also known as the flash doctrine) -

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Described by Blackstone as ‘by marriage the husband and wife are one person in law, that is the very being all legal existence of the woman is suspended during the marriage or at least incorporated and consolidated into of her husband, under whose wing protection and cover she performs everything’ Under this doctrine all legal rights of women were subsumed

Association of Chief Police Officers, 1975 This association of chief police officers can be seen to take this same approach of a private matter: -

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‘keep ‘wife battering’ in its correct prospective ; association realised that this loose term is applied to incidents ranging from a very minor domestic frucker where no police action is justified, to the more serious incidents of bodily harm and wounding Dealing with persons ‘bound in marriage’, and it is important for a host of reasons to maintain the unity of the spouse’

An Act for the Better Prevention and Punishment of Aggravated Assaults Upon Women and Children 1856 Mabel Sharman discussed the imprisonment of Victorian domestic abusers and argued that if you imprison people who commit domestic abuse then it leads to more harm for the V’s because the abuser is the breadwinner in that society, so women and children in that situation is the main earner and so would be seen as worse off

Criminal Law and Civil Law Little remedies were available for instances of domestic abuse beyond divorce and ending the relationship. The existing provisions were largely ineffective until the mid-20th century. -

It wasn’t until the 1960’s that the nature of domestic abuse became an issue for policymakers Not until 1971 that the first women’s refuge was created 1970’s DA was first recognised as a serious social problem, growing women’s rights movement and feminism in society in 1970’s is the context for this 1970’s select committee on violence and marriage was created and this resulted in a legislative framework of civil remedies to meet the needs of V’s of DA

Frances Power Cobbe (1904) o

The only thing really effective was to give the wife the power of separation (separating herself and her children from her tyrant) – divorce was seen as a way of solving this but divorce was traditionally preserved for richer women, so an extension of this to poor women was important

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Extension of the privilege of rich women to their poorer sisters

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Divorce as a tool against DA

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