Domestic violence in England and Wales has continued to rise despite the efforts of previous laws. Will the new Domestic Abuse Act of 2021 strengthen measures to tackle perpetrators and provide adequate and effective protection for male victims?
- INTRODUCTION
Introduction: this should explain your research question and how by answering it you will add to the body of knowledge in the field.
The fundamental purpose of this research is to explore and discuss the many types of domestic violence that occur in society against males, the relevant laws in place to prohibit such crimes from happening, and how far the new Domestic Abuse Act improves the effectiveness of the justice system in providing protection for victims of domestic abuse and bringing perpetrators to justice.
(The focus needs to be on the law)
According to research and the Office for National Statistics, one in every three victims of domestic abuse is a male. In our society, that has always been taboo. This study will strive to determine if the legislation effectively protects male victims. Several flaws and gaps in the law will be exposed, leading to some ideas for correction and solutions so that the law can deal effectively with male victims of domestic abuse.
(Make sure to consistently cite authority to substantiate your assertation)
- DEFINITION
(The Government definition of domestic abuse is:
Any incident or pattern of incidents of controlling, coercive or 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.)
3.Domestic Abuse Stereotype
(From researching domestic abuse it is evident that the stereotypes of victims are that of women being abused by their male partners. This is apparent from the websites available showing support services for victims of domestic abuse. There are only two charities in England and Wales which are for men specifically who help with male victims of domestic abuse. As the stereotype is that of female victims, there is not much academic research specifically aimed at male victims, and for this reason, this piece of research will focus on the male victims of domestic abuse.)
4.Types of domestic abuse
5 Relevant legislation
Comment from instructor:“In respect of structure, you could consider the previous law earlier in your report so that you can demonstrate your analysis skills by identifying the ways in which the DAA 2021 has developed this area.”
In the United Kingdom, there is currently no specific offense of “domestic violence” or “domestic abuse.” However, UK law recognizes a broad range of behaviors and actions that are considered to be acts of domestic violence or domestic abuse. The relevant legislation on domestic violence/abuse in the United Kingdom is as follows:
England and Wales
Domestic abuse
Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Act 2017
Legislation that requires the government to lay a report before each House of Parliament setting out the steps required to be taken to enable the United Kingdom to ratify the Istanbul Convention and the timescale within which the government would expect the United Kingdom to be able to ratify the Convention.
Family Law Act 1996 (as amended by the Domestic Violence, Crime and Victims Act2004)
Legislation that enables victims of domestic abuse to apply to the family courts for civil orders (i.e., non-molestation and occupation orders).
Section 76, Serious Crime Act 2015
Legislation that criminalizes coercive and controlling behavior by a family member.
Protection from Harassment Act 1997
Legislation that criminalizes stalking and harassment.
Sexual Offences Act 2003
Legislation that criminalizes sexual offenses, including marital rape.
Domestic Violence, Crime and Victims Act 2004
Legislation that amends the Family Law Act 1996, the Protection from Harassment Act 1997, the Protection from Harassment (Northern Ireland) Order 1997 and the Criminal Justice Act 2003 to make provision in respect of various offenses relating to domestic violence including the offense of causing or allowing the death a child or vulnerable adult.
Domestic Violence, Crime and Victims (Amendment) Act 2012
Legislation that amends the Domestic Violence, Crime and Victims Act 2004 to cover cases of causing or allowing a child or vulnerable adult to suffer serious physical harm.
Children and Young Persons Act 1933 as amended on 3 May 2015, by Part 5 Section 66 of the Serious Crime Act 2015
Legislation that criminalizes neglect of and cruelty toward children.
Anti-social Behaviour, Crime and Policing Act 2004
Legislation that criminalizes a marriage that is conducted without the true consent of one or both parties either as a result of violence, threats, or coercion.
6.Relevant case law?
R v R [1992] 1 AC 599
Determined under English law that it was possible for a man to rape his wife.
R v Brown [1993] UKHL 19, [1994] 1 AC 212
Determined that a person cannot “consent” to having anything more than “transient or trifling” injuries inflicted on them. In theory, this case should mean that the “rough sex” defense should not be possible for defendants in the UK, but this defense has been evoked by defendants in the UK in circumstances where a woman has been killed. The use of this defense has resulted in lesser charges of manslaughter — a lighter sentence than murder — being imposed, or the woman’s death not being investigated as a crime.[1]It is anticipated that the use of this defense will be banned by the passing into law of the Domestic Abuse Bill (“Bill“), which at the time of writing is being considered by the UK Parliament.[2]
- v Uddin (Tohel)[2017] EWCA Crim 1072
Determined that the words “or otherwise” in the definition of a “vulnerable adult” in Section 5(6) of the Domestic Violence, Crime and Victims Act 2004 (describing the main offense under the Act), envisaged a third category of potentially vulnerable adults who were not suffering from an illness, disability or old age, i.e., “battered wives.”
R v Allen [2017][3]
Defendant was imprisoned after admitting manslaughter, coercive behavior and stalking on the basis that his controlling and abusive behavior had led to his ex-partner’s suicide.
R v Ward [2018] EWCA Crim 1464
The court identified aggravating factors in relation to false imprisonment and Section 18 of the Offences against the Persons Act 1861 (grievous bodily harm) including: gratuitous degradation of the victim; abuse of power over the victim in his own home; previous violence or threats toward the victim in the context of a series of offenses; and threats made to stop the victim reporting the offending.
R v Broadhurst [2019] EWCA Crim 2026
The defendant in this case was cleared of murder, having admitted to manslaughter of his partner after leaving his injured and bleeding partner to die after claiming she was injured during “rough sex.” This case has been considered the catalyst for the introduction of a clause in the Bill that bans, in most circumstances, the use of the “rough sex defense,” which — as noted above — has been sought to be used as a defense for serious harm.
R v Cooksey [2019] EWCA Crim 1410
The defendant was sentenced to six years’ imprisonment for, amongst other offenses for which he received concurrent sentences, false imprisonment of his girlfriend, which occurred when the defendant attacked his girlfriend, punching her repeatedly in the ribs and face, and refused to allow her to go to work or leave their apartment without him for the following week. The defendant applied for leave to appeal against his sentence and in refusing the application, the court of appeal noted that, “This court treats more seriously incidents of domestic violence than used to be the case,particularly where it is coupled, as here, with coercive and controlling behavior in a domestic setting.”
R v Challen [2019] EWCA Crim 916
The court of appeal quashed the defendant’s conviction for murder (a wife who killed her husband by striking him multiple times with a hammer). In reaching this decision, the court decided that there was evidence of an abusive relationship and that coercive control was capable of being relevant to the defenses of provocation and of diminished responsibility.
Comment from instructor: “I can see currently you are exclusively considering criminal cases- as you are considering the family law act and non-molestation orders etc, you should also consider family cases.”
- The Domestic Abuse Act 2021
- create a statutory definition of domestic abuse, emphasising that domestic abuse is not just physical violence, but can also be emotional, coercive or controlling, and economic abuse. As part of this definition, children will be explicitly recognised as victims if they see, hear or otherwise experience the effects of abuse;
- create a new offence of non-fatal strangulation;
- extending the controlling or coercive behaviour offence to cover post-separation abuse;
- extend the ‘revenge porn’ offence to cover the threat to disclose intimate images with the intention to cause distress;
- clarify the law to further deter claims of “rough sex gone wrong” in cases involving death or serious injury;
- create a statutory presumption that victims of domestic abuse are eligible for special measures in the criminal, civil and family courts (for example, to enable them to give evidence via a video link);
- establish in law the Domestic Abuse Commissioner, to stand up for victims and survivors, raise public awareness, monitor the response of local authorities, the justice system and other statutory agencies and hold them to account in tackling domestic abuse;
- place a duty on local authorities in England to provide support to victims of domestic abuse and their children in refuges and other safe accommodation;
- provide that all eligible homeless victims of domestic abuse automatically have ‘priority need’ for homelessness assistance;
- place the guidance supporting the Domestic Violence Disclosure Scheme (“Clare’s law”) on a statutory footing;
- ensure that when local authorities rehouse victims of domestic abuse, they do not lose a secure lifetime or assured tenancy;
- provide that all eligible homeless victims of domestic abuse automatically have ‘priority need’ for homelessness assistance;
- stop vexatious family proceedings that can further traumatise victims by clarifying the circumstances in which a court may make a barring order under section 91(14) of the Children Act 1989;
- prohibit GPs and other health professionals from charging a victim of domestic abuse for a letter to support an application for legal aid
- How will the Act strengthen measures to tackle perpetrators?
The Domestic Abuse Act will:
- prohibit perpetrators of abuse from cross-examining their victims in person in family and civil courts in England and Wales;
- bring the case of R vs Brown into legislation, invalidating any courtroom defence of consent where a victim suffers serious harm or is killed;
- enable domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody;
- extend the extraterritorial jurisdiction of the criminal courts in England and Wales, Scotland and Northern Ireland to further violent and sexual offences;
- provide for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order, which will prevent perpetrators from contacting their victims, as well as force them to take positive steps to change their behaviour, e.g. seeking mental health support;
- Extend the extraterritorial jurisdiction of the criminal courts in England and Wales, Scotland and Northern Ireland to further violent and sexual offences;
- Introduce a statutory duty on the Secretary of State to publish a domestic abuse perpetrator strategy (to be published as part of a holistic domestic abuse strategy).
- Injunctions and Non-molestation orders
- KEY CRITICISM
Comment from instructor:” Good- this demonstrates that you will be engaging in critical engagement of the act. Make sure you come to your own reasoned conclusion by identifying what reform you consider is still necessary.”
- CONCLUSION
Conclusion: the presentation of your personal reasoned conclusion based on your research and what your findings mean to the body of knowledge in the area.
