Domestic Violence – is Further Criminalization the Answer?

The Home Office has recently launched a “>public consultation on whether a specific crime of domestic violence should be created in order to strengthen existing law in this area. However, is the focus on criminalization as a way to improve existing provisions to tackle domestic violence misplaced?

The Home Office published a non-statutory definition of domestic violence which highlights that a distinctive feature of this form of behavior is its coercive and controlling nature. The lack of specific legislation to address this type of behavior has been put forward as a reason to create a specific crime of domestic violence, as it would arguably make it easier for the police and the Crown Prosecution Service (CPS) to prosecute offenders. The benefits of such an initiative are however not straightforward.

One of the first questions that arise from this discussion is whether further criminalization is necessary to protect victims of domestic violence. The fact that domestic violence is not currently a specific type of crime in England and Wales does not mean that it is not treated as such by the police and the CPS. One might say that there is already enough legislation in place to address domestic violence, as for example the law on common assault extends to certain forms of psychological violence, and existing legislation on harassment and stalking provide also grounds for prosecution is cases of domestic violence. The creation of a specific type of crime for domestic violence that focuses on coercive and controlling behavior could even arguably make it harder to prosecute behavior that does not fall clearly into a pattern of repetitive abuse.

Regardless of the need for a ‘new’ type of crime, the problem with focusing the debate on criminal law is that it forgets that domestic violence entails a complex dynamic between victim and offender, and often results in victims needing more support than what the criminal prosecution of an offender might offer. The complexity of domestic violence is reflected in the different ways in which the justice system tries to address it, which encompass not only criminal but also civil law mechanisms.

In fact, many of the short-term solutions for domestic violence take the form of civil orders, which include: non-molestation orders (issued by a court requiring someone to stop molesting someone), occupation orders (which allow an owner, tenant, spouse, or a civil partner to seek the removal of the abuser from his or her home), Domestic Violence Protection Notices (imposed by the police preventing the abuser from having contact with the victim or returning to the victim’s home for a maximum of 48 hours) and Domestic Violence Protection Orders (issued by a court establishing a further no-contact period between victim and suspect of between 14 and 28 days). The proliferation of mechanisms such as Multi-Agency Risk Assessment Conferences, Independent Domestic Violence Advisers and Specialist Domestic Violence Courts further testify to the complexity of addressing domestic violence.

Criminalization sends strong a message that the criminalized behavior is unacceptable in our society. However a low rate of prosecutions for cases of domestic violence results most often from lack of evidence and support from the victim, rather than from lack of an adequate legal framework to pursue an abuser. Having a specific type of crime for domestic violence could improve awareness in police forces for the crime but would not solve the difficulty in gathering evidence and ensuring that victims do not remove their support for the prosecution. The National Policing Improvement Agency issued detailed guidance for police officers on how to address domestic violence in 2008, but according to the Home Office there are still numerous shortcomings and variations in the way police forces across the country tackle domestic violence. Changing the way police forces address domestic violence is a cultural issue that will not be resolved with a simple change in legislation. It requires institutional acknowledgment that addressing domestic violence is as important as addressing any other type of crime, and providing officers tasked with developing specialized work in this area with the suitable means and recognition that they need and deserve.

Another difficulty that arises when discussing the criminalization of domestic violence is whether it is in the victims’ best interest. The CPS prosecutes on behalf of the state, rather than the victim. On the one hand mandatory prosecution helps victims as it removes the responsibility from them to take action, but on the other hand it may result in a further disempowerment as victims are left with no control of the proceedings. Having domestic violence as a category of crime in its own right would arguably make it easier for victims of domestic violence to be helped as they would not have to initiate proceedings themselves but risks further victimizing those who experience domestic violence.

The creation of a new type of crime is not however an unimportant step in the plight against domestic violence. Hopefully it will work towards greater social and institutionalized awareness of the need to stamp out this type of behavior. A simplification of the system may make it easier for the police and the CPS to prosecute cases, but as the Home Office itself acknowledges, addressing domestic violence is a wider socio-cultural problem that can only be dealt with successfully through long-term sustained policies that deal with, amongst other things, acceptable social and gender relations.

Moreover, it is important to bear in mind how domestic violence and its prosecution impact its victims. Some victims are economically or otherwise dependent from their abusers and accessing suitable alternative housing or gaining an occupation order against an abuser are notoriously difficult processes. Concentrating on criminalization detracts from the wider important discussion of how best to support victims. The recent closure of Specialist Domestic Violence Courts as part of a reduction in the number of magistrates’ courts, and the increasingly over-stretched and underfunded services (including Independent Domestic Violence Advisers) which are part of a multi-agency approach to tackle domestic violence are problems that will not be resolved with further criminalization.

A lot of good work has been done over the past 40 years to address domestic violence in England and Wales, which for many years remained ahead of other countries in this area. Creating a specific type of crime would no doubt be useful and would emulate the solution adopted in other European countries. Criminalization cannot however be seen as an ‘strengthening’ of existing law, in the Home Office’s words, if it does not take into account the complex socio-economic and cultural reality that domestic violence entails, victims’ needs and those of the services best suited to support them.