Does the law protect victims of domestic violence?
With one in four adults experiencing domestic abuse and two women a week dying as a direct result of it, why is domestic abuse still only spoken about in hushed voices and is the law sufficient to protect victims?
The answer to why this subject is still spoken about in hushed voices is simple, it is the shame victims feel despite high profile campaigns by Women’s Aid, Domestic Violence Awareness Week and the publication of statistics which highlight the magnitude of the problem. Domestic abuse is not limited to any specific section of society crossing all classes, sexes, age groups and ethnic backgrounds.
Bringing any relationship to an end is distressing and holds the fear that the other partner will be unhappy. However, bringing to an end a relationship that includes any aspect of domestic abuse needs careful planning and often a legal solution.
So how does the law protect the vulnerable partner?
A person needing protection can;
- apply to the civil courts for a Non-Molestation Order to protect themselves from being pestered, threatened and/or harassed or from use of threats of violence. Breaching this order is a criminal offence and carries a maximum punishment of five years in prison, a fine or both;
- apply for an Occupation Order to specify who can live in the home previously jointly occupied thus excluding the abuser. Breaking this order can lead to arrest and possible prison sentence.
In circumstances where the relationship has not been an intimate one, an injunction can prevent someone from acting in a way they know, or ought to know, would amount to harassment of another person. If the order is breached, this is a criminal matter and punishable by a maximum term of 5 years imprisonment, a fine or both.
In reality few people want to go to court preferring to resolve matters amicably between themselves or to discuss it through their solicitors. However court action can become necessary to protect children.
Experience has shown me that once an Order is made, it is rarely breached. This effectively prevents abusive behaviour by the former partner, but there are some people who ignore an order.
Previously a civil judge would give a warning to anyone ignoring these orders and a prison sentence as a last resort.
Since 1st July 2007 the law deals with these breaches in a tougher way and they are now automatically treated as a criminal offence.
So is the law protecting the victim?
In my view, a potential problem lies with our over stretched Crown Prosecution Service and our prison capacity.
With prisons full to bursting and the early release of offenders of other crimes abusers are unlikely to go prison for persistent or serious breaches of Non-Molestation Orders.
It takes enormous courage for a survivor of domestic abuse to overcome their trauma and stand up to their abuser. Making a court application, disclosing deeply personal information about themselves, their families and their former partners to legal professionals needs faith in our justice system. If the order is breached then their courage is tested even further when they return to court.
Recent research indicates that statistically the success rate of convictions for domestic related incidents through the criminal court system is extremely poor. One obvious reason is the withdrawal by the victim from the case.
However, other factors include the time delay from the incident to the actual hearing, uncertainty of the process and the support available and intimidation of the victim by the abuser in the intervening period. Finally, there is the fear that if the abuser is convicted, he will become even more violent towards the victim and/or the family unit than if the offence was not pursued in the first place.
Victims need assurance that judges understand domestic abuse and their need to balance complex issues when the relationship comes to an end.
So does the victim feel more or less protected since the change in the law? Unfortunately, there is little data to go on to support an argument either way. The test is whether the warnings printed on the civil injunction send home the message that the abusive behaviour must stop.
What concerns me is the fear victims have of the criminal court process, including the environment. As a family lawyer, I have pursued civil injunctions to protect clients from former partners when criminal prosecutions have failed.
There are often compelling reasons for a person’s protection however the translation of the need is not matched by successful prosecutions for crimes already committed.
In a recent case, a victim who was strangled to the point of passing out by their partner was advised to seek an injunction, even though a prosecution for that same incident failed. On another occasion, I was told that a prosecution had failed because the magistrates thought the glass of wine the victim had during a meal that evening meant her recollection of the incident was not accurate. On the positive side at least these victims did have their allegations followed through.
In very similar circumstances, a victim was strangled to the point of passing out, left for dead and only recovered as a result of quick thinking family members. The Police only issued the abuser with a harassment warning. The abuser admitted that he intended to kill the victim to a third party, although not to the Police I hasten to add.
Most victims do not want their former partner sent to prison, they simply want their former partner to understand the impact of their behaviour and to change.
Magistrates and Judges are tasked to use their sentencing powers imaginatively. The Criminal Court can use community based sentencing, or sentencing which incorporates a level of education. This may be the answer. However for some abusers , only a period of confinement will show them that society is not prepared to accept this type of behaviour anymore.
Alex Boardman, Legal Executive, Childcare & Family Team
Monday, 26 November 2007
