Dear Lord Chancellor – ‘domestic abuse’: time for a consistent approach in English law

A modern definition for Ministry of Justice

 

The Prison and Courts Bill clause 47 helpfully deals cross-examination of complainants as witnesses in family law domestic abuse proceedings.

 

The Sentencing Council have rephrased its proposed Guidance with the proposition that ‘domestic abuse’ replace ‘domestic violence’ as the criterion which – if accepted – should guide judges in sentencing of offenders http://www.sentencingcouncil.org.uk/wp-content/uploads/Intimidatory-offences-Consulation-Paper-WEB.pdf. A definition suggested by the draft Guidance is set out at the end of this letter. This is based on the Council’s view that the Guidance should be revised:

 

‘… to reflect the important changes in terminology, expert thinking and societal attitudes over the last ten years, in this important area of sentencing. ‘Domestic abuse’ is now the term used, rather than ‘domestic violence’, to reflect that both physical violence and controlling and coercive behaviour constitute abuse in domestic settings.’

 

Meanwhile family courts forms adhere to the old-fashioned ‘domestic violence’ terminology; and Legal Aid Sentencing and Punishment of Offenders Act 2012 Sch 1 para 12 adheres to the more restrictive, ‘domestic violence’:

 

Victims of domestic violence and family matters

12(1)Civil legal services provided to an adult (“A”) in relation to a matter arising out of a family relationship between A and another individual (“B”) where—

(a)there has been, or is a risk of, domestic violence between A and B, and

(b)A was, or is at risk of being, the victim of that domestic violence.

 

A definition of ‘domestic violence’ was added in 2013 by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013 http://www.legislation.gov.uk/uksi/2013/748/article/4/:
‘“domestic violence” 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;’.

 

This sounds to me as if abuse is an aspect of violence – which it can be; but that a Legal Aid Agency decision-maker could say that the more extensive definition (ie domestic abuse) is not comprised always in the more restrictive (ie domestic violence).

 

The wider spectrum of domestic abuse is applied to children and ‘vulnerable’ adults (LASPOA 2012 Sch 1 para 3); but not to others in a family relationship. Is that a fair assumption?

 

Time for reform: Prison and Courts Bill

 

Is it not time to amend the narrower, unfair (to the person abused) and out-moded definition – namely ‘domestic violence’ – in legal aid legislation, family law forms and in any other circumstances? The wider ‘domestic abuse’ would be applied always for grant of legal aid? You would have one consistent set of terminology for all relevant circumstances.

 

If you agree is not the Prison and Courts Bill a good opportunity to do this?

 

Yours sincerely

 

 

 

David Burrows

 

 

Scope of the [Sentencing Council] guideline

 

  1. This guideline identifies the principles relevant to the sentencing of cases involving domestic abuse. There is no specific offence of domestic abuse, it is a general term describing a range of violent and/or controlling or coercive behaviour.

 

  1. A useful, but not statutory, definition of domestic abuse used by the Government is:

 

Any incident or 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 abuse can encompass, but is not limited to: psychological, physical, sexual, financial, or emotional.

 

  1. 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 capabilities for personal gain, depriving them of the means needed for independence, resistance and escape and/or regulating their everyday behaviour.

 

  1. Coercive behaviour is an act or pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim.

 

  1. The Government definition includes so called ‘honour’ based abuse, such as female genital mutilation (FGM) and forced marriage. Domestic abuse occurs amongst men and women, people of all ethnicities, sexualities, ages, disabilities, immigration status, religion or beliefs, and socio-economic backgrounds. Care should be taken to avoid stereotypical assumptions regarding domestic abuse.