Legal Update: Criminalising domestic abuse

The Home Secretary recently announced that she intends to introduce a new offence of domestic abuse covering "coercive and controlling behaviour" within intimate and family relationships. The new provision, to be introduced as an amendment to the Serious Crimes Act, will attract a maximum sentence of five years imprisonment, a fine, or both. The stated reasons for this are to plug a gap in existing criminal laws and to ensure that frontline professionals, including the police, have an improved understanding of "the subtleties of abusive intimate relationships". The announcement follows a consultation last summer, in which 85 per cent of respondents agreed that the existing legal framework is not sufficient to protect victims of domestic violence, and 55 per cent agreed that this behaviour should be criminalised.

Coercive and controlling behaviour is included in the government's 2013 cross-departmental definition of domestic violence and abuse, which defines it as: "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" (controlling behaviour); and "an act or pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim" (coercive behaviour).

Inadequacy of existing laws

Coercive and controlling behaviour involves a sustained pattern of acts within a relationship that has the consequence of isolating, humiliating, exploiting or causing harm to a victim. Existing criminal provisions, however, tend to reinforce an approach that responds to single physical incidents, rather than patterns of power and control. Offences such as assault require the victim to fear an immediate act of violence. A review of case law demonstrates that stalking and harassment laws only appear to apply to post-separation behaviours, and not within ongoing relationships.

These provisions hide the experiences of many domestic violence victims. The impact of coercive and controlling behaviour is cumulative - one particular incident may seem insignificant in isolation, but could have a very negative impact as part of a continued pattern of behaviour that humiliates, intimidates or induces fear. An emphasis on violence as discreet incidents has therefore contributed to the invisibility of women's other experiences of abuse.

Criminalisation

It is important that the criminal justice system can respond to coercive and controlling behaviour. Currently, police do not effectively intervene to address harms caused by this behaviour. Also, not explicitly criminalising coercive and controlling behaviour means the police may not be able to effectively intervene before the behaviour escalates, which is essential for preventing other acts of violence, including murder; currently, on average, two women a week are murdered by a current or former partner in England and Wales.

A report last year by HM Inspectorate of Constabulary on the police response to domestic violence found a lack of clear police leadership and direction; failure to prioritise action on domestic violence; poor victim care; and unacceptable weaknesses in basic policing, indicating that police often fail to recognise domestic violence or to see it as a serious crime. As stated in the Home Office report following the consultation, "creating a specific offence of domestic abuse may send a clear, consistent message to frontline agencies that non-violent control in an intimate relationship is criminal". However, any change in law needs to be accompanied by mandatory training for the police, the Criminal Justice System and other government agencies.

There is a clear need to create an environment in which victims of domestic violence feel able to report early, are believed when they do, and where the patterns of abuse are recognised and understood by professionals. It is hoped that criminalising coercive and controlling behaviour will provide a step toward much-needed change in responding to domestic violence.

Legal Update is produced in association with experts at Coram Children’s Legal Centre ?www.childrenslegalcentre.com

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