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The IBA’s response to the situation in Ukraine
In January 2019, the UK government published a landmark draft Domestic Abuse Bill, providing the first statutory definition of domestic abuse in England and Wales. Alongside incidents of physical violence, the new definition recognises psychological coercion and financial control as abusive behaviours.
The practical applications of the inclusion of non-physical forms of abuse have become apparent following the recent successful appeal in the Sally Challen case.
In 2011, Challen was sentenced to 18 years imprisonment for the murder of her husband. Challen admits killing Richard Challen but denies murder, citing diminished responsibility following 40 years of alleged psychological control and coercion.
Head of Communications, SafeLives
At her appeal, lawyers for Challen submitted that an understanding of coercive control as a form of domestic abuse was lacking when Challen was first sentenced. Coercive control became a criminal offence in England and Wales in December 2015. The Court of Appeal overturned Challen’s murder conviction in late February this year, ordering a retrial based on ‘fresh evidence’ regarding the impact of psychological abuse.
‘By expanding the definition of domestic abuse to include things like economic abuse, we will hopefully continue to make progress to ensuring controlling behaviour is taken as seriously as physical violence,’ says Penny East, Head of Communications at SafeLives, a domestic abuse charity. ‘The courts and criminal justice system will see that these things are actually indicators of risk as opposed to what can currently be seen as “minor indiscretions”.’
The draft Bill hopes to tackle the prevalence of domestic abuse in all its forms by establishing an office of the Domestic Abuse Commissioner, as well as providing for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order. The Bill also fulfils the government’s two-year-old promise to prevent perpetrators of abuse from cross-examining their victims in family courts, and gives the court ‘discretion to prevent cross-examination in person where it would diminish the quality of the witness’s evidence or cause the witness significant distress’.
Christine Braamskamp, Vice-Chair of the IBA Criminal Law Committee, tells Global Insight that the draft Bill is ‘a valiant effort to provide guidance to people affected (including victims and their children) and aims to help them understand what constitutes abuse.’ She outlines that there are currently various interpretations of domestic abuse used by the police, criminal courts and in family proceedings, and that the Draft Bill goes some way to harmonise that.
East also emphasises the importance of coherent and consistent understanding and enforcement of the legislation, explaining that domestic abuse response from services including the police, housing and social services is currently a ‘post code lottery’. ‘Until we have a criminal justice system that truly understands those pieces of legislation in terms of front line police work and in terms of the Crown Prosecution Service, judges, etc, then we’re not going to get a consistent approach,’ she says.
The World Bank Group’s 2019 report Women, Business and the Law notes that 47 economies have introduced domestic violence legislation over the past decade. However, behaviours constituting domestic violence vary across jurisdictions. Last April, the United States dropped psychological abuse from the state definition. The new definition only includes physical harm constituting a misdemeanour or felony, with implications for organisations seeking to access government grants for victim protection efforts. Russia has also seen the partial decriminalisation of domestic violence in recent years, despite data from NGOs suggesting that the number of victims calling helplines is on the rise.
According to the Crime Survey for England and Wales, numbers of domestic abuse cases are also growing nationally: two million people aged 16–59 reported domestic abuse in the year ending March 2018. As this data does not include coercive and controlling behaviour, it is likely to be an underestimate. The Office for National Statistics reports that women ‘were around twice as likely to have experienced domestic abuse than men’.
Sarah Green, Co-Director of the End Violence Against Women Coalition, highlighted that ‘if law, policy and spending really are to be radically changed in this area, it is absolutely critical that there is clear recognition that domestic violence very disproportionately affects women.’
Green is also concerned that the Bill does not adequately protect victims of domestic abuse with insecure visa status. ‘Little more than lip service has been paid to the rights of migrant women who have severely restricted routes to safety and support,’ she says. ‘Currently, many of these women, when they suffer domestic or other abuse, risk being taken as an immigration offender if they seek help, rather than getting the protection they need.’
Green, alongside other stakeholders, is pushing for greater protections to be introduced into the Bill. A key concern is that the Destitution and Domestic Violence Concession (DDVC), a government scheme to claim public funds while applying to settle in the UK because of domestic violence, is currently only accessible for women on spousal visas. Migrant women on other types of visas with No Recourse to Public Funds conditions attached are at risk of discrimination, destitution and deportation if they report a perpetrator.
The draft bill is now subject to pre-legislative scrutiny, with final findings expected in May. The government will have two months to respond to the report of the ad-hoc committee considering the draft bill, but how expedient the Bill’s journey through the House is remains unknown, considering the current political climate.
East also reiterates the need to keep momentum going with expanding the scope of the Bill, and believes the publicity surrounding the Challen case could help with this: ‘We need to keep the pressure on to make sure that not only does the Bill survive any Brexit distractions, but also that it goes far enough and is ambitious enough.’