Domestic violence is an international phenomenon affecting its victims, their families, friends and people from wider society on all aspects of their lives, regardless of the victims’ age, culture, gender, social status or religion (Dobash and Dobash, 2004, UN , REF). Although domestic violence does not have one general definition, this essay will use the definition that has been used by the British Government, which explains it as: ‘any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse among those aged sixteen or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse… is not limited to psychological, physical, sexual, financial or emotional’ (Home Office 2013b:2). In England and Wales, women represent the majority of the domestic violence victims, as one woman in four has been a victim of it at some point, however, it has been revealed that also one in seven men suffers from some form of domestic violence during the life course (Refuge 2018). It is very important to acknowledge that domestic violence is also present in homosexual, bi-sexual and transgender relationships (Women’s Aid 2018).
The protection from this abuse should be rooted in the domestic violence legislation, which in practice, should be provided by the statutory and voluntary organisations and services (Victims Code ****). The legislation should provide victims with instant and easily accessible help to unable each victim to break free from the abusive relationship. This essay will investigate the effectiveness of four legal remedies or entitlements for the victims of domestic violence in England and Wales. These will be Non-molestation Order, Domestic Violence Protection Order and Domestic Violence Protection Notice, Domestic Violence Disclosure Scheme, Criminalisation of Coercive and Controlling Behaviour and Stalking. This essay found the fundamental limitation of the current support provided for the victims of domestic violence, in the inconsistent provision of an emotional and practical support before, during and after leaving the abusive relationship.
The Non-Molestation Orders are sadly products of broken and unhealthy relationships. They are aiming to stop the offender from intentionally threatening to use or actually using an abuse, intimidation, and harassment against the victim (Family Law Act 1996). When The Court is making its decision whether to warrant or not the order, it is mostly concerned with the need to protect the health, safety and well-being of the victim and any relevant children (Carline and Easteal 2014). It can be served for a specific period of time, usually 6 months, or until a further order is served. The victim who wants to apply for an order has to fill in the FL700 form and submit it to the Family Court. There is no fee for submitting the application.
At first, this order was welcomed and praised, however, the order without the power of arrest attached was seen by many as meaningless. It was not until 2005 when the breach of the non-molestation order has been criminalised under the Section 42A of the Domestic Violence, Crime and Victims Act (2004), with a maximum penalty of five years imprisonment. This step was welcomed by practitioners and victims who felt that this would be a deterrence from further molestation (Hester et al, 2008). Domestic Violence, Crime and Victims Act (2004) also introduced a new term ‘associated person’, which mean that the order can be applied not only to current and former partners but also to relatives and people who are living in the same household, which was a very positive step forward (Reece 2006). Another positive thing is that Non-Molestation Order can be applied for without reporting the crime to the police, which should encourage more victims coming forward (Carline and Easteal 2014). Additionally, Griffith (2014) highlighted that the order can be undertaken by the police with or without a victim’s consent, which is very important in the cases where the victim still wants to protect the abuser due to the fear. In general, the Non-Molestation Orders have been evaluated as helpful because they prohibit abusers from molesting their victims Woodhouse and Dempsey (2016).
However, on the other hand, there are some issues with Non-Molestation Orders. Firstly, to be able to warrant the order, The Court requires a proof of a sufficient level of harassment towards the victim (Burton 2009). This is hard to prove in some cases as there might be no witnesses and the level of harassment is perceived individually by victims. Additionally, it has to be confirmed that the abuser must have acted deliberately in order to harass the applicant, which is again hard to prove in court. An additional limitation is that there are not sufficient and in some cases not at all follow-up checks on the victims completed after the order was gained (Griffith 2014).
Domestic Violence Protection Order and Domestic Violence Protection Notice
Domestic Violence Protection Order and Domestic Violence Protection Notice were introduced in 2014 the by the Crime and Security Act (2010). These orders were introduced to deliver an immediate protection of the victim after the domestic violence incident. The protection was provided by placing restrictions on perpetrators, removing the offender from the family home and preventing contact with, or molestation of, the victim (Hageman-White 2006). The Domestic Violence protection Order last from fourteen to twenty-eight days. The order consists an initial temporary notice, known as Domestic Violence Protection Notice, which is active for forty-eight hours, during which the police can apply to the magistrates’ court for a Domestic Violence Protection Order hearing. The notice provides the victim with much-needed space and time to decide the next steps, which is necessary for the difficult situations (Bird 2015). There were over 2500 orders served to the perpetrators in one year since the order was introduced.
Domestic Violence Protection Order is seen as a successful measure because it helps victims by allowing the police to remove the abuser from a family home for a period of time, without the victim needing to press the charges against the perpetrator. The positive fact is that because the police can serve the order at the same time as attending the incident, it makes it quicker, and therefore, more effective in protecting the victim. The Home Office assessed both Domestic Violence Protection Orders and Notices as ‘positive because it provides victims with the immediate protection from a violent and/or abusive situation’ (2016:10), however, victims of domestic violence need a long-term protection and support to be able to recover. According to the Police Foundation (2014), these orders are quicker than civil injunctions and were found positive amongst the victims, police and practitioners, as they were linked to re-victimisation reduction when used in more ‘chronic’ cases (Hillier and Nicholas 2013).
On the other hand, there are also limitations with Domestic Violence Protection Order as the excessive paperwork afterwards, creates time constraints of the process. They were criticised for the time restraints imposed by law, which makes it problematic for police officers to complete the Domestic Violence Protection Notice, or to apply to the court for the full order before individuals were released from custody (Hillier and Nicolas 2013). The police attitudes survey (Home Office 2013) also criticised Domestic Violence Protection Orders for being a short-term solution, as they only last twenty-eight days. In the survey, some police officers evaluated the orders as disproportionate, in some cases of family violence where the abuse was deemed ‘low-level’ violence (Home Office 2013). Undoubtedly, this provides a platform for cases to be minimised if there was no serious physical assault, as the coercive control exercised by perpetrators over the victim is ignored.
Domestic Violence Disclosure Scheme
In 2014, the Government created The Domestic Violence Disclosure Scheme, also known as Clare’s Law. Domestic Violence Disclosure Scheme is especially important for victims who have suspicions about their new partners, but cannot decide what to do and what to believe in. Griffith (2014) commented that Domestic Violence Disclosure Scheme empowers people to make a decision about the future of the current relationship. This scheme enables women to have a ‘right to ask’ the police if their partner has a violent past. However, the decision to disclose the information falls down to the ‘right to know’ procedure by which the police decides if any information will be provided to the applicant. The disclosure will be only made ‘if it is necessary and proportionate to protect the potential victim from crime’ (Home Office 2016:15). According to the Call to End Violence against Women and Girls, Progress Report 2010-15 (May 2016), over 3500 applications and 1300 disclosures were provided since the introduction of Domestic Violence Disclosure Scheme, which potentially protected women from being victimised. The positive for the victims is the fact that the alleged offender will not be notified about the disclosure, which can prevent further abuse (Griffith 2014).
The pilot of Domestic Violence Disclosure Scheme was seen as a success (The Police Foundation 2014), however, the difficulty is that the information can be only released when there is a ‘pressing need’ to do so, to which Grace (2014a:15) commented that it would cause ‘difficulties with the police in interpreting this term’. In the government report on Domestic Violence Disclosure Scheme was found that the police felt that the process of disclosure was overly bureaucratic, practitioners thought that the public awareness of the scheme was very low and needed to be advertised more (Home Office 2013a). Additionally, a lack of consistency in the information provided in disclosure was mentioned as the biggest limitation (Grace 2015). The issue can also arise if during the disclosure the victim says that the partner hit the victim in the past as the police have to act and investigate it as a crime. The victims, therefore, might hesitate to report the truth about the relationship due to fear of the partner.
The measure that is the most important in recognising repeated offenders and in preventing the harm of potential victims, is Domestic Violence Disclosure Scheme. The number of disclosures made insists that the perpetrators will carry on with their abuse on numerous victims during their lives. There are also some limitations to the Domestic Violence Disclosure Scheme. Although the scheme allows for the police to disclose information, including past allegations, arrests, charges and failed prosecutions to the victim (Grace 2015), the police use discretion when deciding if it is appropriate to provide the information to the victim. The problem is that the previous convictions might be seen as a low level, however, that does not mean that the perpetrator’s aggression has not grown over the time. It is a great responsibility for each police officer who has to make this decision. It is also important to remember that not getting the disclosure does not mean that the partner does not have a violent past, it simply could mean that the police does not hold any relevant information about the perpetrator or there is no “pressing need for disclosure” from the police’s point of view
Criminalisation of Coercive Controlling Behaviour
The latest major improvement in domestic violence legislation in England and Wales came with the Section 76 of the Serious Crime Act (2015). This Act criminalised the use of coercive or controlling behaviour against an intimate partner or a family member. This was a great step forward in recognising domestic violence emotional abuse, as well as physical abuse as according to then Home Secretary Theresa May ‘coercive control, can be tantamount to torture’ (Home Office 2014:16). This remedy was mostly praised for the fact that it is for the first time that ‘behaviour that many consider the real core of domestic abuse is properly criminalised’ (Bettinson 2015:191). Some concerns have also been identified, such as the difficulty to investigate and prosecute the offence as well as the fact that the term ‘controlling or coercive behaviour’ is too uncertain in meaning (McMahon and McGorrery 2016). The prosecution has to also prove that the offender’s behaviour was ‘repeated or continuous’, which again is hard to prove (Edwards 2016).
This section provided a literature review of six preventive and protective measures that British legislative offers to the victims of domestic violence. As it has been shown, the academic literature suggested that each of these measures has its positives and limitations. All of them were generally assessed as positive, however, there are many issues with interpretation of some remedies, such as proof of the significant duration of the relationship, proof of the repeated coercive behaviour or even proof of the deliberate harassment of the victim. Additionally, issues with overly bureaucratic procedures were seen as a great negative as well as the fact that some remedies act only as a short term solution. The discretion of the police and courts when deciding where to press charges or convict the offender depends on the individual case, which on one hand can be seen as a positive, however, on the other hand, it brings inconsistency when dealing with domestic violence cases.
Criminalisation of coercive and controlling behaviour was a significant recognition of emotional abuse as a part of the domestic violence. This is especially important in the cases where the physical abuse is hard to prove. However, how are the victims actually informed about this new legislation? Victims of domestic violence from a different cultural background might not understand that what the perpetrator does is wrong, and therefore, would never report it. Some victims might feel that emotional abuse will not be seen by the police as ‘bad enough’, therefore, due to lack of confidence in police understanding of their situation, victims will not feel strong enough to report the emotional abuse.
Stalking has been recognised as ‘one of the most common types of intimate partner violence’ in England and Wales (Home Office 2011:5). Under the Protection of Freedoms Act (2012), part 7, which replaced the Protection from Harassment Act 1997, the person is guilty of stalking if his or hers actions amounts to harassment of the victim, if the abuser is following a person, watching or spying on a person, contacting, or attempting to contact, a person by any means. This can lead to six months imprisonment. The most serious offence of stalking involves fear of violence, serious alarm of distress. The offence, however, occurs only if the fear against the victim will be used at least two occasions, which can lead to five years imprisonment (Griffith 2014). Recognition of stalking as a criminal offence is seen as much needed remedy for the victims as since it has been criminalised there have been more than 2,000 prosecutions in England and Wales (Home Office 2012). Woodhouse and Strickland (2016:3) praised the fact that the Act covers a wide range of behaviour, including ‘harassment motivated by race or religion, some types of anti-social behaviour, and some forms of protest’.
The issue with this Act arose due to the fact that the Protection from Harassment Act (1997) differentiate two offences of stalking, ‘less serious stalking’ and ‘more serious stalking’ (Carline and Easteal 2014). The less serious stalking amounts to harassment and the more serious type of stalking consist of an act which causes the victim to fear that violence will be used against them. The problem with this is that it is hard to prove the fear of violence, and therefore, there is a tendency of the Crown Prosecution Service to lower prosecution to less serious stalking in order to ‘increase chances of obtaining a conviction’ (Home Office 2012:10).
This essay assessed the extent of which the legal remedies or entitlements for victims meet their needs. These were: Non-molestation Order, Domestic Violence Protection Order and Domestic Violence Protection Notice, Domestic Violence Disclosure Scheme, Criminalisation of Coercive and Controlling Behaviour and Stalking.
Additionally, the gap in physical protection from the perpetrator who breached the Occupational Order could be solved by introducing GPS proximity tracking technology. This tracking technology, which would notify the police if the abuser entered the prohibited area, could be an option for better prevention from harm, as the police could act on it faster by tracking the perpetrator straight away and protect the victim.
Proactive monitoring of the Domestic Violence Protection Order for its duration, particularly if they are used as a first or second police response to domestic violence cases should be introduced. Police officers who attend domestic violence incidents and serve the order on the perpetrator should contact their victim within the first twenty-four hours to make sure that the victim is safe and the perpetrator is complying with the order. This would be especially important for the victims’ confidence in the police as it would comfort them that the police is still there for them even after the abuse happened. It also shows the victim that the police interested in their case.
Many victims of domestic violence are often misinformed or uninformed about the help that is legally provided for them. Therefore, a greater advertisement of domestic violence remedies in the media could help to spread the word about the legal help that is available for the victims. General Practitioners should also provide information about the emotional and legal help available if they are suspicious about any of their patients being a victim of domestic violence.
Lastly, more in-depth training about domestic violence should be provided for the police officers across the England and Wales, so they can adequately support the victims, as the police officers are often the first people to attend the scene after the abuse happened. The Crown Prosecution Service should also focus more on the actual protection of the victims rather than the successful conviction rates.
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