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Government at odds with itself on domestic violence
The debate over the definition of domestic violence used in the Legal Aid, Sentencing and Punishment of Offenders Bill highlights the absence of joined-up thinking within the government.
Even as the bill appears to seek to adopt a narrower definition of domestic violence than that commonly used by the police and Crown Prosecution Service, the Home Office is consulting on widening it.
Definitions are important. The LASPO bill removes legal aid for most private family law cases, but allows for it to be granted in cases where there is evidenced domestic violence. Schedule 1 of the bill defines domestic violence as physical or mental abuse, including sexual abuse, and abuse in the form of violence, neglect, maltreatment and exploitation.
The shared Association of Police Officers, CPS and government definition of domestic violence covers: ‘any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults, aged 18 and over, who are or have been intimate partners or family members, regardless of gender and sexuality.’
The bill’s opponents fear that both the definition of domestic violence and the evidential requirements to establish it are too narrow and will leave many vulnerable families without advice and representation.
A striking aspect of the House of Lords debates on the bill is the expertise and experience of the peers calling for amendments on this issue. They included the former President of the Family Division Lady Butler-Sloss, former director of public prosecutions, Lord Macdonald of River Glaven and former attorney general Lady Scotland.
Their observations are stark and often hard-hitting.
Arguing for the bill to define domestic violence more widely, Butler-Sloss observed: ‘Some men drive their wives or their partners almost to suicide by never putting a finger on them; in many ways, psychological and threatening behaviour is even more dangerous and even more debilitating than the man who returns home drunk on Saturday night and knocks his wife around but does not ill-treat her from Sunday to Saturday.
‘Psychological abuse is usually daily and nightly and, therefore, it requires a rather broad interpretation,’ she said.
Macdonald noted the unhappy history of the justice system and domestic violence, where for many years, he said, crimes within the home had not been regarded as the business of the state. Parties were left to sort it out themselves, despite the inequality between then, often leaving any children the most damaged.
‘In all the years that I prosecuted, I saw the effects and consequences of that injustice. At its most brutal, I dealt with a startling number of women who had been murdered by their partners, and who had repeatedly been victims of persistent and escalating assault.’
Macdonald cited the national crime survey’s figure that 25% of women have experienced domestic violence, but said that the numbers coming forward were ‘far below’ that. Bar Council statistics, he said, indicated that only 16% of victims come forward.
Women, he said, will not always report incidents to the police, but will seek help form others, including doctors, support organisations and social services. He suggested that material from these other sources should be acceptable as evidence for the purposes of the legal aid ‘gateway’.
He questioned: ‘What possible justification can there be for this bill to contain a definition of domestic violence that offers less protection to the victims of domestic violence than the definition used successfully, day in day out, by our law enforcement agencies?’
‘In their understanding of domestic violence, the proposed legal aid reforms could have been written 10 or 15 years ago,’ he said and warned that the bill’s approach to domestic violence risked ‘rolling back decades of progress’ in understanding the crime that he called ‘an absolute scourge’.
He said: ‘We must have a bill with the modern definition of that crime and including provision for those who may be too scared or too desperate to call the police.’
Lady Scotland noted that before the bill, there was never any suggestion that the definition needed to be changed to prevent people making false allegations. Up until now, she said, the drive had been to encourage women to come forward and receive support and early intervention before problems escalated.
She said: ‘Look at the average case, such as when a woman has run from her home. She manages to go to her GP, who sees the injuries and notes them and then sends her to hospital because there are fears that she may have cracked a rib or another bone. She is seen by the medical staff and they verify that the injuries that she complains of are genuine. Her neighbours may have come in to rescue her from an assault. They may not have seen the assault taking place but have noted what was happening and taken her away. Social services may have come along and examined the children, spoken to them and heard what they had to say.
''All of that might have been used by the police who then came along and arrested the man. He may then acknowledge that he has indeed committed the offences that are alleged against him. Even if all those things had happened, under [the government’s current] provisions the woman would not be entitled to legal aid. That cannot be right.’ Responding for the government justice minister Lord McNally said the definition used in the bill would not exclude from scope any of the types of abuse covered by the ACPO definition, so amendment was unnecessary.
Meanwhile, in December home secretary Teresa May published a consultation seeking views on widening the definition of domestic violence used across government, to include ‘coercive control’ in its definition and extend its application to those under 18. Launching the consultation, May acknowledged: ‘Victims have often been subject to multiple incidents of abuse before they seek help.’
And in a Westminster Hall debate on legal aid, women and families last week, justice minister Jonathan Djanogly said the government is committed to ensuring the victims of domestic violence receive legal and other support.
The Home Office, he said, is spending more than £28m until 2015 for specialist local domestic and sexual violence support services and £900,000 to support national domestic violence helplines and the stalking helpline.
Yet again, this laudable aim is undermined by the government at the same time, closing 23 of the special domestic violence courts.
Ministers and government departments appear not to be working in concert on this issue, and it is the victims and their children who will suffer. For their sake, the government needs to adopt a more consistent and joined-up approach.