Potential Impact of the New UK Domestic Abuse Bill
The Domestic Abuse Bill of 2021 is unequivocally a good thing. Yet the fact that it is a 2021 bill – two decades into the millennium, begs the question – why only now? Surely the UK had protections against domestic abuse before, right? What is new or why is the Domestic Abuse bill needed, then?
History of Domestic Abuse Protections in the UK
It is a sad truth of the world that rights and protections for women and equal treatment is a fruit of many decades of effort. The following is only a truncated list of legislation and attitudes about domestic abuse.
In 1878 Frances Power Cobbe wrote an article named ‘Wife Torture in England’ which spoke to both the physical and mental torture suffered by women and the absence of rights should they wish to escape their marriage. There was no such thing as protections for “domestic abuse” during the nineteenth century, though there were laws against men who beat their wives too severely.
The Summary Jurisdiction (Married Women) Act of 1895 gave women the power to make by themselves the decision to separate from their husbands. Previously the 1857 Matrimonial Causes Act allowed women to divorce their husband on the grounds of cruelty, while before this law they needed to prove that their husbands had deserted them or was in a bigamous relationship.
This time of recovery also saw strengthening of civil rights. Domestic violence was not considered ‘real police work’, and it among others it was the death of Maria Colwell in 1973 that began to alter public perception that the private domain of family squabbles was not a place for public or government intervention.
UK ratified the Convention on the Elimination of All Forms of Discrimination against Women in 1979, which entered into force as an international treaty on 1981.
In the lead-up to the turning of the millennium saw strengthened focus on domestic violence and abuse, with police officers now deeming it ‘a priority’. The Family Law Act 1996 emplaced remedies for molestation, violence, and occupation of a home. Orders may forbid a perpetrator from threatening violence, intimidating, harassing or pestering a victim and any relevant children. It can only be issued against someone whom the victim had a familial type or cohabiting relationship.
Rape within marriage was made a crime in 1994.
Protection for Harassment Act 1996 introduced new criminal offenses for pursuing conduct equivalent to harassment and where the conduct puts the victim in fear of violence. As the remedies are similar to the Family Law Act 1996, this was used by people who did not meet the necessary requirement of being in a familiar or cohabiting relationship with the perpetrator.
The Domestic Violence, Crime, and Victims Act (DVCV) 2004 was the largest overhaul of the law in the past 30 years, giving a wide range of reforms regarding domestic violence, crime, and victim protections.
The Home Office published the first National Action Plan on Domestic Violence on 2005, which introduced new guidance and training for police, CPS and judiciary, set up domestic violence courts, and quality assurance for services that provided care for domestic violence victims.
The Destitution Domestic Violence (DDV) Concession scheme was introduced in 2012 to allow migrants who are victims of domestic violence financial support to leave their abusive partners.
Serious Crime Act 2015 created an offence of controlling or coercive behaviour in an intimate or family relationship. It is punishable by imprisonment of up to five years.
The Domestic Violence and Abuse Bill was first proposed in 2017 to establish a new consolidated domestic abuse and protection order regime. It would establish a domestic violence and abuse commissioner who would stand up for victims, raise public awareness, monitor the response of civil agencies and authorities, and hold the justice system to account in their efforts to tackle domestic abuse. The Bill also allows certain offences committed by British citizens anywhere in the world to be prosecuted in the UK courts.
In April 2021, the Domestic Abuse Bill after many unforeseen delays and amendments is enshrined into law.
What is new in the Domestic Abuse Bill?
Here are some key points:
- Establishing the Office of the Domestic Abuse Commissioner and specifies the Commissioner’s functions and powers
The Domestic Abuse Commissioner is empowered to provide public leadership on domestic abuse issues and monitor domestic abuse services in England and Wales. Many of those affected by domestic abuse access local services supported mainly by local authorities, police forces, or NHS bodies. While this provides flexibility, it also means that the quantity and quality of services can vary greatly.
The commissioner is tasked to encourage good practice in preventing and identifying abuse and raising awareness for domestic abuse issues.
The Commissioner has the duty of mapping and monitoring the provision of services, carry out research, and work jointly with public authorities and voluntary organizations on the creation of reports that can be laid before the Parliament. These reports would hold local commissioners, agencies, and the national government to account and make robust recommendations on how to improve their response.
An independent commissioner is believed to be superior for accountability than the government attempting to carry out these functions for itself. Public bodies will have a duty to cooperate with the commissioners and government Ministers are to be required to respond to each recommendation made to them within 56 days.
- Establishes the Statutory Definition of Domestic Abuse as not just physical violence but can also be emotional, coercive or controlling, and economic abuse
Closing loopholes in previous legal definitions of domestic abuse wherein some required evidence of physical harm before allowing intervention.
- Extends the controlling or coercive behaviour offence to cover post-separation abuse
Just because victims are separated does not mean they are safe. This is another loophole that is closed, as previously cohabitation or a familiar relationship was a requirement.
- Recognition of children as victims of domestic abuse
Children do not need to be harmed directly to be a victim of domestic abuse. Lasting psychological harm can also be caused by being a powerless witness to domestic abuse.
- Support and recognition that men may also suffer domestic abuse
Awareness and support that men may also suffer from domestic abuse and may seek equal protections under law without being humiliated.
- Provides for new Domestic Abuse Protection Notice and Domestic Abuse Protection Orders
For faster response to domestic abuse cases. DAPNs provides immediate protection from abusers, while DAPO are addressed to perpetrators to prevent reoffending via monitoring and rehabilitation.
- Places a duty on local authorities to provides support and refuge for victims of domestic violence and their children
Removal of the victim from the presence and financial control of the perpetrator may be necessary to keep them safe. This is particularly relevant for households with a large discrepancy in financial or legal powers, i.e., migrant partners.
- Victims of domestic abuse are now eligible for special measures in criminal, civil, and family courts
Special measures are a series of provisions that assist vulnerable and intimidated witnesses in giving their best evidence in court and relieve their fear and distress.
- Emphasizes that a person may not consent to the infliction of serious harm upon themselves and by extension, incapable of consenting to their own death
- “Rough sex defense” will be banned
- Non-fatal strangulation becomes a specific offense
Many cases of marital rape and abuse have previously gone under-reported or penalized mildly while leaving victims vulnerable to future attacks. These defences and loopholes will now be closed.
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- Extends the extraterritorial jurisdiction of the criminal courts in England and Wales, Scotland, and Northern Ireland to violent and sexual offenses under the classification of Domestic Abuse
UK nationals and residents that commit relevant offenses outside the UK may be brought back to trial in the UK. If an accused person is not prosecuted by the criminal justice system of the state where the offense occurred, they may be extradited if there is sufficient evidence for a realistic prospect of conviction and it is in the public interest to prosecute.
- Domestic Violence Disclosure Scheme (“Clare’s law”) gives anyone a right to request information from the police if they believe that they or someone they know is in a relationship with a person that may be abusive towards them.
The DVDS was adopted in 2014 but under the bill places a duty to that the scheme is used and applied consistently across all police forces. The guidance also addresses special concerns about privacy. The Disclosure Scheme provides for:
- The “Right to Ask” for the public whether a current or ex-partner has an abusive past.
- The “Right to Know” in which the police may make the disclosure on their own initiative if it may impact the safety of the noted individual’s current or ex-partner.
- Mandatory polygraph examination of high risk domestic abuse perpetrators after release from custody
A three-year pilot program will use mandatory polygraph testing on domestic abuse perpetrators three months after release from custody and every six months thereafter. This will be used both as a preventive measure for re-offense and as research data for rehabilitation measures.
- All eligible homeless victims of domestic abuse automatically have ‘priority need’ for homelessness assistance
The need for a safe home for domestic abuse survivors is vital or they would be left with no recourse but to return to an abusive situation or be in an even more vulnerable position open to exploitation. In times of crisis, ex: a global pandemic, this becomes an even more vital concern and it is best to be addressed well in advance.
- Local authorities when re-housing an existing lifetime social tenant would grant new lifetime secure tenancy
This portion of the bill supports domestic abuse victims to leave their abusive situation. In addition, if instead the perpetrator is removed from the tenancy either by eviction, prosecution, or abandonment, the victim may be granted new lifetime tenancy in their home.
Criticisms of the Domestic Abuse Bill
The Domestic Abuse Bill is a welcome one, but some feel that it does not go far enough in protecting the vulnerable.
Significant attention had been placed on holding perpetrators to account and providing community-based programs to challenge and change abusive behaviours. Support Services and safety nets offered by the government however can only be recognized as adequate, and may have limited access by some of the most vulnerable in society, i.e., migrant women and their children.
There is a lack of an automatic national registry for domestic abuse perpetrators and stalkers in the Domestic Abuse Bill, a fact which disappoints many as the recommendation had large support among MPs and the backing of the Justice Secretary, Robert Buckland.
Domestic Abuse survivors have reported that their previous encounters with public service professionals have left them belittled and ignored. Campaigners are asking for guidance and education for public service staff to recognize signs of domestic abuse and ask the questions that open pathways to rescue.
Domestic abuse is an instigator for larger long-lasting public ills like homelessly, drug and alcohol addiction, crime, and sexual exploitation. Being let down by authorities and services is why many feel like asking for help is pointless.