THE DOMESTIC ABUSE ACT 2021: WILL TRANSFORM THE LEGAL RESPONSE TO DOMESTIC ABUSE?
April, 2022
Domestic abuse (DA) has, unfortunately, always been an extremely prevalent issue in our society – and historically, the law hasn’t done much to help its victims. Seen as a private family matter where the state shouldn’t intervene, victims have often been left with little to no legal protection. Even with attempts to end violence against women, the law’s approach has consistently been too limited; focusing mostly on physical violence and looking at abuse on an incident basis, failing to acknowledge the various forms and patterns DA can take on. Though over time society has started to shift to a broader and more nuanced understanding of DA – the law has not been keeping up sufficiently. Now, much needed and long-awaited, the Domestic Abuse Act 2021 has finally been introduced. Will this act transform the legal response to DA?
This essay will discuss the new definition and provisions brought by the Act, and how these demonstrate a changing and expanding legal approach to DA. It will then discuss limitations and criticisms of the Act and said new provisions.
The new definition
The most transformational element of the Act is its introduction of a statutory definition of DA. The new definition, set out in section 1, states that a person’s behaviour towards another is DA if: the two are each aged 16 or over and are personally connected to each other, and the behaviour is abusive.[1]
For behaviour to be abusive, it must consist of any of the following: “physical or sexual abuse; violent or threatening behaviour; controlling or coercive behaviour; economic abuse or psychological, emotional, or other abuse.”[2] This incorporates a more progressive understanding of DA and its different forms, parting from the past focus on solely physical violence. Furthermore, the Act specifically highlights that it does not matter whether the person abusive behaviour is a single incident or a pattern of conduct,[3] parting from the incident-based focus the law has had in the past. It also adds that person A’s abusive conduct may be towards person B even if it is directly done to another, for example, person B’s child.[4] This is valuable as it widens the scope of what may fall under abusive conduct, by acknowledging the way abusers may use others (especially children) to harm their victim.
For two people to be ‘personally connected,’ section 2 outlines that any of the following must apply: the two individuals “are or have been married to each other, are or have been civil partners of each other, have agreed to marry one another (whether or not the agreement has been terminated), have entered into a civil partnership agreement (whether or not the agreement has been terminated), are or have been in an intimate personal relationship with each other, each have (or there has been a time when they each have had) a parental relationship in relation to the same child, or they are relatives.”[5] This is positive as it acknowledges the many different relationships that DA may be present in, not limiting the situation to individuals who are, for example, currently married or in a civil partnership. This is significant as abuse can continue to exist after a relationship has ended and this expands the scope of who can be considered a victim of DA and be protected under the Act - as well as those who can be prosecuted for DA.
A new legal approach to domestic abuse?
The Act is a progressive, positive step forward regarding the legal approach to DA. It changes the law’s position from a physical violence focused, incident-based outlook and places more focus on coercive control as a significant aspect of DA. It also takes steps to prevent future harm.
An example of this changing legal approach is the Act no longer limiting coercive control to incidents that occur within the relationship - meaning that abusive behaviour occurring post-separation can still be considered DA.[6] This is key as separation is not always able to prevent abuse from continuing and leaving this out of the legislation risks leaving victims without help. Furthermore, the change is significant as many victims can’t report their abuse until they are no longer in the abusive relationship or living with their abuser.[7]
Another significant provision is the creation of the new offence of non-lethal strangulation. Before this, there was no legislation making this a distinct offence. Attempting to “choke, suffocate or strangle another”[8] in trying to commit an indictable offence was an offence contained in the Offences Against the Person Act 1861, but this usually referred to when this was done to commit some other serious offence, such as murder. This is incredibly important as non-lethal strangulation is often used by perpetrators of DA as a coercive “tool to exert power and control”,[9] as opposed to an attempt at killing the victim. This shows the law’s changing perception of DA, placing importance on coercive behaviour as being a huge part of it, and demonstrates its move to adapt the legislation to this expanding view. It also shows its effort in preventing harm - in this case, potential future homicide if the perpetrator is not appropriately punished for this action. Another example is that though sharing intimate photos is already against the law, the Act goes a step further by making threats to share such photos illegal. Addressing new forms of abuse made possible through technology, as well as threats and ‘non-violent’ behaviour demonstrates, again, the law’s shifting perspective of DA. Including threats of such harm as abuse as opposed to waiting for the harm to be done, in this way, can prevent future abuse.
The Act also demonstrates a shift in the attitude towards, and the treatment of, victims. It includes an amendment prohibiting, in some circumstances, the alleged defendant from cross-examining the victim in family and civil protecting proceedings. This protects the victim from potentially harmful questioning and humiliation, as well as having to face their abuser in court. This is significant as victims often face continued shaming and aggression during their attempt at obtaining justice, and their abuser can use this as a tactic of control and coercion. A barrier to such damaging situations takes victims’ well-being, mental health, and safety into account, and aids them in seeking justice.
Importantly, the Act also places an obligation on local authorities to provide victims with refuge accommodation. It also, by widening the definition of DA and those who are ‘personally connected,’ “expands the categories of those who may qualify for homelessness assistance.”[10] This will provide additional protection to vulnerable victims as opposed to leaving them to fend for themselves, often falling back into dangerous and abusive situations. Though this is hugely beneficial, the Act “fails to give victims any real say over how or where they should rebuild their lives.”[11] It continues to allow the local authority to decide where the individual should live, doing this through broad policy rather than focusing on each case individually. This is important as victims of DA, adults and children, don’t simply need to be removed from their abuser. They also need to be near people they know and love, and their job or school, to have a support network and get back on their feet. Furthermore, as Charlotte Bishop argues, if there is no adequate funding for refuges, special women’s services and “ongoing support”[12] for victims, these provisions will be undermined[13] and not be as effective as possible.
Limitations and criticisms
All of this being said, the Act is not without some faults. It has even been named, by some, a “missed opportunity to fully grasp and address the complexities of DA.”[14]
Charlotte Bishop argues that though the Act and its new provisions may help individual victims, it does little to promote truly effective systemic change. She points out that the Act fails to create specific provisions for migrant women, who are often left out of the discussion of DA and have a harder time accessing DA services and legal assistance. Though some may argue that this a small minority of women, this is an important perspective to consider in analysing the Act’s reach and potential effectiveness. Migrant women face significant hardships in seeking help for DA, often due to the fear of jeopardizing their refugee status, facing further abuse, or not being taken seriously by authorities. The Act fails to consider the wide variety of social positions victims of DA may be in, which can affect their ability to access help and even use the new legislation to obtain justice. To bring about systemic change, the law must protect all victims.
Another critique is the Act’s failure to take on a gendered approach, remaining gender-neutral.[15] Both men and women face DA and it, therefore, wouldn’t be fair or a reflection of reality to solely address women as victims in legislation. However, women are disproportionately affected by DA,[16] abuse by men against women is more frequent and severe,[17] and violence by men is more likely to involve fear and control of victims.[18] This needs to be acknowledged to truly tackle DA – many aspects of family law are gendered, and these elements must be recognized for the law to work at its best.
Following from this, though the Act expands the legal approach to include coercive control and different types of abuse falling under it, it fails to place coercive control at “the heart of the wrong”[19] of DA. Bishop argues that this will sustain the misconceived view of DA as an incidence-based phenomena, as opposed to an ongoing pattern of behaviour. It can be argued that all types of DA and violence are forms of coercive control and ways for abusers to exert power over their victims. Therefore, coercive control shouldn’t solely be viewed as an important part of DA, but as its root and purpose.
Furthermore, the Act has introduced wider police powers – a problematic aspect of this is that police have historically not sufficiently used said powers to protect victims of DA. Additionally, it is not a given that they will receive enough resources to Act on these powers. Therefore, this might not bring as much change as was intended and needed. The government also rejected the Lords’ proposal of specific stalkers’ register which would automatically put serial offenders on the violent and sex offender register. This would have been a huge step in working to prevent further violence against women, as opposed to only dealing with offenders again through punishment when they have committed another offence.
Conclusion
Overall, the Domestic Abuse Act 2021 has brought significant change to the United Kingdom’s legal approach regarding DA. Having a Domestic Abuse Act at all is transformational, considering the lack of legislation specifically addressing domestic violence prior. The new provisions demonstrate a changing legal approach to DA – they include non-violent types of abuse previously often left out of the discussion regarding DA, such as economic abuse and emotional abuse. They also expand who can be considered a victim and the different relationships DA can exist in. The Act addresses the need for refuge, protection against questioning by the abuser in court, prevention of future harm, criminalization of non-lethal offences, and more. We can observe, in the Act, the theme of moving from DA being seen as a private matter to a public one, with the law now involving itself more and working to protect victims. The act is also better fulfilling the law’s remedial role, including more victims under its protection.
This being said, as mentioned prior, there are still improvements that must be made for the act to truly be transformative and achieve systematic change, and there are still some questions that remain unanswered. One of the more pressing questions is - how easy will it be to effectively adopt the new definition and provisions? Legislation can only do so much, and research shows that in the past it has been difficult for legal practitioners and others to shift their focus from specific incidents to patterns of abusive behaviour. So, whether this new legal definition will be able to make this change possible remains to be seen. Time will tell just how effective and transformational the Domestic Abuse Act 2021 is. However, it can be confidently said that the Act has transformed the legal approach to domestic abuse.
Bibliography:
Legislation:
The Domestic Abuse Act 2021
Offences Against the Person Act 1861
Websites:
'Domestic Abuse Act: A Missed Opportunity?' (Lag.org.uk, 2021)
'Focus On Coercive Control And Gendered Approach Must Be At The Heart Of Efforts To Address Domestic Violence And Abuse' (Medicalxpress.com, 2021)
'Home Page News - Focus On Coercive Control And Gendered Approach Must Be At The Heart Of Efforts To Address Domestic Violence And Abuse, Study Argues - University Of Exeter' (Exeter.ac.uk, 2021)
'The Domestic Abuse Act 2021 – What Does It Mean For Social Housing Providers?' (Devonshires, 2021)
'The Domestic Abuse Act 2021: How The Law Is Adapting To Tackle Domestic Abuse' (Shoosmiths.co.uk, 2021)
'The Need For An Offence Of Non-Fatal Strangulation' (Publications.parliament.uk, 2021)
Rothwell R, 'Coming To Harm' (The Law Society Gazette, 2021)
Reports
Hester, M. (2009) Who Does What to Whom? Gender and Domestic Violence Perpetrators, Bristol: University of Bristol in association with the Northern Rock Foundation
[1] Domestic Abuse Act 2021, s.1(2)(a), (b)
[2] Ibid, s.1(3)(a-e)
[3] Ibid, s.1(3)
[4] Ibid, s.1(5)
[5] Ibid, s.2(1)(a-g)
[7] Rachel Rothwell, 'Coming To Harm' (The Law Society Gazette, 2021)
[8] Offences Against the Person Act 1861, s.21
[9] 'The Need For An Offence Of Non-Fatal Strangulation' (Publications.parliament.uk, 2021)
[10] 'The Domestic Abuse Act 2021 – What Does It Mean For Social Housing Providers?' (Devonshires, 2021)
[11] 'Domestic Abuse Act: A Missed Opportunity?' (Lag.org.uk, 2021)
[12] 'Focus On Coercive Control And Gendered Approach Must Be At The Heart Of Efforts To Address Domestic Violence And Abuse' (Medicalxpress.com, 2021)
[13] Ibid.
[14] n(11)
[15] 'Home Page News - Focus On Coercive Control And Gendered Approach Must Be At The Heart Of Efforts To Address Domestic Violence And Abuse, Study Argues - University Of Exeter' (Exeter.ac.uk, 2021)
[16] Ibid.
[17] Hester, M. (2009) Who Does What to Whom? Gender and Domestic Violence Perpetrators, Bristol: University of Bristol in association with the Northern Rock Foundation
[18] Ibid.
[19] n(15)