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Does the law adequately protect victims of domestic abuse?

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The government should devote more resources to legal aid for victims, says Warwick law student Rodney Dzwairo

The law has traditionally been slow to deal with gendered issues and inequalities that arise within it. One such example is the marital rape exemption that existed in English and Welsh law until 1991. Many law students are appalled to learn that until the exemption was reversed in R v R, one could not be found legally guilty of raping his wife.

Another area of the law that has been slow to evolve is domestic abuse. Despite the fact that one in ten crimes recorded by the police are domestic abuse cases, there was no dedicated offence specifically dealing with it until 2015 with the passing of the Serious Crime Act (SCA).

Section 76 of the SCA 2015 introduces the wordy offence of controlling or coercive behaviour in an intimate or family relationship. This offence essentially seeks to criminalise behaviours, such as manipulation, which are likely to do harm to another party in a domestic situation. The offence is largely considered a reactionary response to the verdict in R v Dhaliwal.

In that case, a woman was psychologically abused by her then partner to the point she decided to commit suicide. The police decided to prosecute the offence under section 20 of the Offences Against the Person Act 1861 (OAPA) relying on psychiatric injury as the basis of the charge. The case failed as the prosecution were not able to prove the victim had a recognised medical condition caused by the defendant. The burden of proof for demonstrating psychiatric injury is generally quite hard to overcome in criminal law, especially when the victim is deceased. The case highlighted the problems of not having a dedicated offence to deal with cases of domestic abuse.

Many feminist jurists were highly critical of the decision. The courts have been willing to expand the scope of the OAPA in cases such as R v Brown and R v Chan Fook. Relaxing the requirements for psychiatric injury could have allowed the courts to tackle the rampant and under-prosecuted issue of domestic abuse under the OAPA.

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Parliament has intervened with the section 76 offence under the SCA but the reception so far has been mixed. Commentators have been sceptical of the offence. Nicola Padfield, a barrister and Cambridge academic, notes that the new law is overly complicated and may not be used at all by the police. She further goes on to disapprove of the introduction of new offences instead focusing on making the existing law more efficacious. Some specific problems she highlights are the lack of legal aid for these victims and the fact that the police do not bring forward prosecutions in many domestic abuse cases.

Other commentators have taken a more optimistic approach to the new offence. Charlotte Bishop, a lecturer at Exeter Law School specialising in domestic and sexual violence, argues that the new offence is beneficial as it recognises the harm done in non-physical psychological abuse. She argues the offence could help shift societal and judicial attitudes about psychological abuse which could have long-term benefits for the law. Furthermore, she notes the new offence allows the law to take into consideration the wider context of abuse in an intimate relationship. Prosecuting domestic abuse under the OAPA would mean the domestic context could not be meaningfully considered.

I am personally of the view it would have been preferable to expand the law in the OAPA and avoid creating a new offence. There are already a litany of offences available to the police in prosecuting domestic abuse. The introduction of a new offence further complicates the job of the director of prosecutions. It has also been noted that the OAPA is a living instrument to be adapted to present day conditions. The creation of a new common law doctrine to deal with domestic abuse under the OAPA could allow the courts to shift the law in a way that better deals with such crime. Statute law is rigid and cannot be adapted to novel cases to the extent common law can.

Furthermore, there are systematic issues hampering the prosecution of domestic abusers that cannot be solved with new offences as pointed out by Padfield. The government should devote more resources to legal aid for domestic abuse victims and work on providing more resources such as shelters.

It is too soon to evaluate the effect of the new offence. There has been a successful prosecution of a case materially similar to R v Dhaliwal under section 76 of the SCA. This could suggest the offence is having a positive impact as more domestic abuse victims will be able to seek redress, but more case law is required for a conclusive evaluation of the new offence.

Rodney Dzwairo is a first-year law student at the University of Warwick. He’s an aspiring commercial solicitor.

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Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

28 Comments

Anonymous

When you say that more legal aid should be available to victims, it isn’t clear what you want the effect of that to be. Do you mean to ensure that they are only cross examined by lawyers rather than the alleged abuser? Or do you have something else in mind?

Anonymous

Why on earth would providing more legal aid to victims have an impact on who they were cross examined by? Legal aid doesn’t generally fund the other side’s counsel.

Anonymous

Why is an “aspiring commercial solicitor” writing about domestic abuse?

An actual lawyer

Because it’s possible to have an academic interest in more than one area of the law?

Anonymous

Not great for the CV though.

Anonymous

No one has an academic interest in commercial law. It’s just about the dolla.

Katie Smith

In some parts of the United States woman and men victim of psychological abuse have legal tools to protect them. Definitively, there is an urgent need to recognise the impact of psychological abuse in people, like they say in this articles, victims can even commit suicide or develop irreparable psychiatric conditions after being abused, the law shall be there to protect them.

Truth serum

Women are allowed to abuse their male partners all the time, both physically and emotionally. However as they can cry on demand they are always the victims. In fact they will twist the story so that their bad behaviour is justified by something you did (or failed to do).

Anonymous

You may want to consider the various remedies open to victims of domestic violence in a civil or family law context. The criminal law isn’t really designed for protecting the victims, but rather dealing with the offender.

As far as I know, non-molestation order applications under the Family Law Act 1996 are fully within scope for legal aid. As the term “molestation” is extremely wide, the applicant doesn’t need to prove any particular type of behaviour. They can be obtained very swiftly. Breach of a non-mol is its own criminal offence.

I’ve also seen housing associations and local authorities use powers (rightly or wrongly) under the Antisocial Behaviour Crime and Policing Act 2014 to impose injunctions on perpetrators of domestic violence.

Anonymous

I always find the idea of applying criminal sanctions to breaches of orders made on the civil burden of proof to be inherently unfair.

Anonymous

Try not to focus on the criminal sanctions but rather on the criminal burden of proof to which the sanctions apply. That way as your career progresses you will find that although some matters seem unfair full thought will show you otherwise.

Anonymous

Try to focus on the criminal sanctions applied to breaches of orders made only on the civil burden of proof. That way, when your career starts you will find that if something seems inherently unfair full thought will show you that it usually is.

Anonymous

This is a strange article.

You review the law and then ask for more legal aid. The issue is legal aid is irrelevant for charging decisions. Legal aid applies to those facing domestic abuse charges and does not interlink with victims of the abuse.

Anonymous

Vote CORBYN!

We need to raise taxes on greedy high earners to increase legal aid funding!

A supertax on all incomes over £60,000!

We need socialism!

Anonymous

Agreed brother!

Prime Minister Jeremy Corbyn, 2019!!

Anonymous

Thanks comrade!

THE ABSOLUTE BOY WILL TAX THESE LAWYERS TO HELL AND BACK

Anonymous

We need to build socialism in this land!

Fairness means giving oppressed workers a stake in their labour!

For Legal Cheek, Alex Aldridge’s employees will be given proper pensions and management voting rights!

It’s wrong for employees to have no stake in society!

Double the minimum wage brothers!! Raise pay in the public sector!

Anonymous

Only double the minimum wage?? Right wing pig. There should be no minimum wage because there should be no wages. Everyone should be working for the benefit of the state in nationalised industries. Lawyers should be made to be collective farm labourers. Doctors should be made to be steel foundry workers. Teachers sent should be sent to sweep the streets.

SOCIALSIM NOW.

Anonymous

Thank you, Pol.

Now back to the article:

DV complainants aren’t cross-examined by the defendants in the criminal courts as there is such thing as a s.36 order whereby the court will appoint a lawyer for the defendant to cross examine the complainant.

Anonymous

Your comment was downvoted as it actually made a sensible point.

LC staff

We don’t actually work for LC, we pretend to work and day drink all day

Anonymous

“You review the law and then ask for more legal aid. ”

He reviews a recent change to the the law brought in to address a specific issue (failure to successfully prosecute a psychological abuser), and then suggests that more legal aid might better address that issue (ie because previous existing laws provided a framework capable of dealing with psychological abuse and the complexity of new legislation means that an underfunded CPS might not make use of it anyway).

Nothing strange here, apart from your ability to combine poor reading comprehension with arrogant disdain for someone who has clearly given deeper thought to these issues than you.

Anonymous

Wrong bro. Funding and the law are 2 different concepts and the article failed to thread them together.

Anonymous

Clearly funding and statutory offences are “2 different concepts” but both are legislated for by Parliament. When, as here, Parliament sets out to achieve a certain policy objective, it can use both to do so.

Anonymous

“He reviews a recent change to the the law brought in to address a specific issue (failure to successfully prosecute a psychological abuser), and then suggests that more legal aid might better address that issue (ie because previous existing laws provided a framework capable of dealing with psychological abuse and the complexity of new legislation means that an underfunded CPS might not make use of it anyway).”

You have confused the budget set by the Crown Proexution Service by central government with the legal aid budget. These are 2 separate budgets. Increasing the legal aid budget won’t affect charging decisions on a funding basis.

Anonymous

The spending on prosecuting offences (15 billion) is currently 160 times the criminal legal aid budget. The legal aid budget cost to the tax payer is currently zero as the Victim Surcharge collects more than the entire legal aid budget in income. Criminal Legal Aid is funded entirely by convicted defendants. In the main bad drivers, as they make up about 90% of those fined.

Complainer Aid is also far more generous than legal aid. There is no means test and no mertits test. The Complainer is not required to make any contribution unlike a Defendant and is granted complete immunity in costs.

But I agree it is time to rebalance things and extend legal aid to complainants on the same basis as Defendants. So no Complainer Aid for anyone earning more than £22,000 a year for summary only complaints. Complainers should fund the investigation and prosecution themselves (just like Defendants) and should not recieve their costs from Central Funds even if their complaint is sucessful (just like aquitted Defendants).

Complainers where the case is dealt with in the Crown Court to pay £900 per month towards the costs of the Complainant. Complainers whose complaint is not upheld to pay the Defence Costs, but convicted Defendants to be except from paying Prosecution costs (just like Complainants are currently exempt).

The idea that legal aid for Complainants is low compared to legal aid funding is bizare. All the police do is prosecute allegations of domestic violence and sexual misconduct. 40% of Crown Court trials now are for Sexual Offences. As duty solicitor on the Colindale rota last night, my case load was:-

Burglary – Client arrested in the house – No Further Acton.
ID Cards Offence – Client arrested with false Greek ID Card – No Further Action.
Common Assault – Client alleged to have pushed his wife. Charged and RIC to Willesden.
Common Assault – Client alleged to have slapped his wife. Charged and RIC to Willesden.
ABH – Client alleged to have punched another male in the face in a pub – RUI.

So off I go to do my 100% Domestic Voilence caseload from last nights rota.

Anonymous

This is one of the best comments I’ve seen on this site.

Anonymous

Try to focus on the criminal sanctions applied to breaches of orders made only on the civil burden of proof. That way, when your career starts you will find that if something seems inherently unfair full thought will show you that it usually is.

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