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The functioning of the present criminal justice system in relation to
domestic violence can be seen as a process of decriminalisation.
Decriminalisation is discussed in two senses. Firstly, with reference to
recent research, I shall show that with reference to domestic violence
cases the functioning of the present criminal justice system can be seen
as a process of decriminalisation . Secondly, I shall argue that
decriminalisation, in the sense of looking for remedies outside the
criminal justice system, can be the basis for an alternative strategy to
approach cases of violence. With reference to research undertaken for
the TV Dispatches documentaries, Men Behaving Badly, transmitted in
1998, this paper outlines the various civil alternatives developed to
give women protection against male violence. The case for greater
emphasis on civil rather than criminal law in combating domestic
violence is proposed. I. introduction
At the 1997 Labour Party Conference, the Home Secretary, Jack Straw
announced his intention 'to give greater priority to tackling the crime
- for that is what it is - of domestic violence - I want zero tolerance
of domestic violence'. This was followed in June 1998 by the publication
of a report on the Inter-departmental Committee set up to consider
vulnerable witnesses, Speaking up for Justice, which presents a number
of recommendations aimed at reforming the law on rape and domestic
violence. At an international level violence against women is on the
agenda. In Beijing in 1995 the fourth UN World Conference on Women
focused on issues such as violence against women, health, education,
economic inequalities and power sharing and adopted a Global Platform
for Action to improve the status of women world wide. One of the
commitments made by the UK government was to 'take action to tackle the
causes of violence against women... including legislation against
perpetrators, improving police and other agencies' responses and raising
awareness of the issue'. The Convention on the Elimination of All Forms
of Discrimination Against Women was ratified in 1997 by 160 countries
and provides recognition of the need for reform of the legal systems
(Henderson 1997:11).
Police policy initiatives on domestic violence have only been in
place nationally since 1990 in the UK (see Cromack 1995: 88, Gregory
& Lees 1999) despite studies drawing attention to the shortcomings
of criminal justice intervention (see Edwards 1996). In August 1990 the
Home Secretary announced that a higher priority would in future be given
to domestic violence and that it would no longer be dismissed as not
worthy of police time (Wolmar 1990). National guidelines were issued by
the Home Office (circular 60/1990) recommending that all police officers
should 'regard as their over-riding priority the protection of the
victim and the apprehension of the offender'. The circular urged police
forces to keep accurate records, enforce the criminal law and offer
sympathetic treatment and support to victims. In the wake of these
guidelines, specialised domestic violence units were established in some
areas, enabling non-uniformed officers to follow up cases and
co-ordinate services.
At the same time as these developments have taken place, there is
growing evidence that the criminal justice system is in crisis. Violent
crime has steadily risen since the 1950s while police clear up rates and
conviction rates for most types of crime are falling (Rose 1996). Rape
and domestic violence are no exception: indeed they are the leading
examples of this trend. The conviction rate for rape has deteriorated
sharply over the past decade. The number of reported rapes trebled but
the number found guilty in 1994 (425) was lower than in 1985 (450) (Home
Office Statistics). For domestic violence (defined as violence against
wives and cohabitees, ex wives and ex cohabitees and ex lovers) the
conviction rate of reported cases, as we shall see, is even lower, where
domestic violence accounts for 25 per cent of recorded crime in Britain
(see Labour Party Consultative Group1995, Stanko et al 1997). Yet as
Snider (1998:2) has pointed out 'decades of social science research,
empirical and theoretical, critical and conservative, document the
failure of criminal justice systems to improve the safety, life
conditions or life-chances of victims, or to transform offenders'.
Frequently, politicians and feminists have called for tougher
penalties (on the mistaken assumption that they deter offenders), more
police powers (on the assumption that they will use them or use them to
successfully prosecute offenders rather than harass the innocent or just
do nothing). These are joined by calls to water down the rules of
evidence etc. to make it easier for prosecutors to secure convictions
(on the assumption that it is the guilty and powerful who will be more
easily convicted and not the weak and innocent who would otherwise have
been given the benefit of the doubt).
The politics of criminal justice always presents a dilemma - since
crime is committed by the weak as well as the powerful, there is always
a danger that measures to make it easier to convict the latter end up
not only depriving the latter of their civil rights, but indeed making
it easier to convict the innocent. There is a constant danger of those
who want to do something about rape and domestic violence, or, for
example, powerful organised crime or white collar crime, jumping on the
same bandwagon as the hang-em and flog'em brigade, and those who would
pay scant attention to civil liberties and the rights of the defendant.
There is also the danger that changes in procedures for one type of
offence may have deleterious effects in others. After the spate of
unsafe convictions revealed in recent years by the Birmingham and
Guildford cases, the Cardiff and Bridgewater cases, one is hesitant to
recommend anything that might weaken the position of defendants in the
criminal justice system. There is little alternative to confronting this
dilemma as long as we remain within the constraints of thinking in terms
of criminal justice as the only solution to the problems of rape and
domestic violence. I will suggest, however, that it is indeed true that
the current criminal justice system fails to act effectively against
these crimes. But rather than suggest draconian powers for police,
prosecutors or judges, we should look for alternative strategies outside
criminal justice altogether.
I am concerned with decriminalisation in two senses. Firstly, that
decriminalisation is in fact what the criminal justice system actually
does in rape and domestic violence cases. The functioning of the present
criminal justice system can be seen as a process of decriminalisation.
By frequently acquitting the perpetrators, it functions in effect to
condone rather than condemn domestic and sexual violence and to
normalise and legitimise rather than challenge the violence of the
perpetrators. Attrition rates are high in all crimes, but there is
evidence that rape and domestic violence have the highest rates (see
Polk 1985, Rose 1996, Cretney & Davis 1996,1997).
Secondly, I shall argue that decriminalisation, in the sense of
looking for remedies outside the criminal justice system, can be the
basis for a strategy which enables us to find alternative strategies to
address the problem. II. How the criminal justice system decriminalises
domestic violence
To understand how it is that criminal justice fails to serve the
victims of domestic violence it is necessary to consider the dynamics of
the criminal justice process as it moves into action. For an action to
be dealt with as crime it is reasonably clear that the agencies of
criminal justice (police, prosecutors, judiciary) must, whatever the
criminal law says, actually take the activity seriously as a crime. This
by no means always the case. Firstly, individual members of the criminal
justice system may engage in such activities themselves. Domestic
violence is a classic case. The 1982 Metropolitan Police Working Party
Report on domestic violence argued that one reason why male police were
reluctant to act in such cases was that they were heavy drinkers and
likely to engage in domestic violence themselves. While few police
officers, judges or barristers engage in burglary - at least on a
regular basis - the same cannot be said of domestic violence.
Secondly, criminal justice agencies may see themselves as having
other priorities which might conflict with prosecution. Crucial in the
case of domestic violence is the understood 'need' to protect the
family. The fear that too strong a prosecution policy might break up
families - one of the key institutions of civilised society acts as a
powerful antidote. This became clear in the latter half of the
nineteenth century when the Victorian concern with the family as a key
institution of social stability and moral socialisation developed. For
example, the historian James Hammerton commenting on the statistical
decline in recorded domestic violence during the latter part of the
nineteenth century, emphasises the distinction between any real decline
in marital violence and a reduction in the number of effectively
criminalised incidents.
"… for the simple reason that during the period of
statistical decline (the magistrates courts) increasingly became
courts of conciliation as well as summary conviction. With the
Matrimonial Causes Act of 1878, which provided for separation and
maintenance allowances for wives of husbands convicted of aggravated
assaults, local magistrates courts increasingly took on a more
paternalistic role, eager to intervene in an attempt to make the wife
forgive, the husband reform and the family reunite, and thus avoid the
fragile division of slender economic resources. Magistrates, together
with a growing army of police court missionaries, probation officers
and clerks of the court came to see themselves as marriage
menders." (1992: 39)
The conviction that it was the duty of all concerned to preserve the
sanctity of the family was a set of beliefs that impeded the effective
criminalisation of domestic violence. It is a belief that continues into
the present period. During the mid 1970's - a memorandum from the
Association of Chief Police Officers to the House of Commons Select
Committee on Violence in Marriage explained police reluctance to act in
'domestic' cases on the grounds that "we are, after all, dealing
with persons 'bound in marriage', and it is important, for a host of
reasons, to maintain the unity of the spouses." (quoted in Atkins
and Hoggett 1984: 134). In Dobash and Dobash's (1979) investigation into
the experience of battered wives, women reported that social work and
police agencies were more concerned with keeping the family together,
than promoting their safety. These sentiments were echoed by Barbara
Mills when she was head of the Crown Prosecution Service (CPS). The
guidelines for the prosecution service include for all crimes a 'public
interest' criteria as to whether to prosecute a particular case. At a
meeting in May 1998 she announced that the definition of the public
interest in domestic violence cases includes 'keeping the family
together'. This, it might be thought is a strange definition of 'public'
which excludes the victims of violence.
The combined effect of these two factors is that domestic violence,
taking place within the sanctified relations of the family, may be
subtly redefined in the eyes of police, prosecutors, and judges as
something akin to a private civil dispute between two equal parties in
which the criminal justice system has no real business intervening
rather than as the criminal action of offender on victim. Police do not
see it as 'real police work' There is some evidence that they are
happier intervening if they are called not by the victim, but by a third
party - say a neighbour - in which case it can be seen as a breach of
the peace, which is, of course, a public offence and a matter for the
criminal justice authorities.
It is clear that the criminal justice system is most at home in
dealing with relations between strangers - where no other identities
such as family roles can obstruct the process of criminalisation and the
definition of the relationship between the parties as those of offender
and victim ( see for example Estrich 1987, Temkin 1999) Where the
relationship is between people who have some intimate relationship then
the labelling of victim and offender becomes blurred and the notion of a
private dispute - in which the 'victim' may be equally, if not indeed
more, to blame than the 'offender', in which the victim, in rape or
domestic violence 'brought it upon herself' - comes to predominate quite
irrespective of what the criminal law and the rules of criminal
procedure say. Women who are raped by strangers are still more likely to
be more satisfied with their treatment by the police (Lees 1997, Temkin
1999)
The way the law treats homicide by lovers or husbands which can be
seen as the polar case of domestic violence, has been criticised on the
grounds that the violence many experienced is not taken sufficiently
into consideration ( Lloyd 1995). Over half of women murdered in the
United States are killed by a current or former male partner (Browne and
Williams 1992) and 45 per cent in the UK (Home Office Statistics
1985-1993). Research shows that women are particularly liable to be
killed after they have left the violent relationship and suggests that
often women remain in the violent relationship because of the husband's
or partner's threats of murder if they leave ( Browne 1982, Marzmuk et
al 1992, Wilson et al 1993).
The majority of men who kill wives or partners are found guilty of
manslaughter, where the length of sentence is at the discretion of
judges, rather than murder, which carried a mandatory life sentence. The
most common ground for commuting murder to manslaughter is diminished
responsibility, for which, according to Section 2 of the Homicide Act
(1957), the defendant must be shown to have suffered from an abnormality
of mind arising from an injury, a sickness or a developmental problem
which substantially impaired her or his responsibility at the time of
the killing. Such a diagnosis must be supported by two psychiatrists.
Even where there is a history of violence against the wife, sentences
and some judges in their summing up, as I shall show, show a sympathy
with the men and a condoning of the violence - such offences are not
regarded as a real crime rather a private matter that unfortunately
'went wrong' and in which a good deal of sympathy for the attacker is in
order ( see also Bochnak 1981). The following three cases are examples
of how killing a wife is treated with leniency by some judges and such judgments
are accepted with complacency by the press and wider society.
In the first case it was argued that his wife's drinking drove Joseph
McGrail to murder, a mere two days after Sara Thornton's failed appeal
in 1991. The court heard that on 27 February 1990 McGrail said that on
returning home and finding his wife drunk and demanding more to drink,
he had kicked her to death. She died from internal bleeding. Malcolm
Morse, for the prosecution, said 'It was a sudden temporary loss of
control'. Mr Justice Popplewell in awarding a mere two year suspended
sentence said of the victim, 'this lady would have tried the patience of
a saint' ( Independent August 1, 1991).
For Bisla Singh, it was his wife's nagging that led him to kill her -
'to shut her up'. According to the defendant, the nagging consisted of a
two hour stream of abuse which he had first tried to stem by throttling
his wife with his bare hands. He had then strangled her with a cord,
after she had abused him for 2 hours. He told police 'l didn't mean to
hurt her - l just wanted to shut her up'. The court heard that Mrs Singh
shouted and swore at her husband. Judge Denison said:
You have suffered through no fault of your own a terrible existence
for a very long time. You bore it better probably than most people
would have done until, finally, your self control snapped and you did
what you always admitted doing. I do not see that sending you to
prison is going to do you any good.
His plea of manslaughter by provocation was accepted and the judge
gave him an 18 month sentence suspended for a year (See The Times,
January 30, 1992 ).
In some cases husbands do not have to stand trial, even when there is
evidence of premeditation. Instead the defence plea bargain whereby the
defendant pleads guilty to a lesser charge, of manslaughter, and the
case is settled without a trial. In August 1995, three days after Daniel
Collins was cleared of raping his estranged wife at the Old Bailey, he
beat her to death with a wrench in front of their children (Daily
Telegraph, 9 February 1995). His plea of not guilty to murder was
accepted by the CPS after two psychiatrists concluded his responsibility
for the crime was diminished.
In the Collins case, Judge Gerald Butler heard that the defendant had
brooded over his five months in custody awaiting trial for rape. After
he was arrested Collins told the police: 'She put me inside for months.
I was up at the Old Bailey. The judge kicked it out. She said I raped
her, my own wife. I was inside for nothing. I regret what I did, but I'm
not sorry for her because I am still very angry'. The prison
psychiatrist whose report was presented by the defence counsel
astonishingly found that there was 'no pre-existing evidence of intent'.
In several cases, judges justify their leniency on the grounds that
prison would not benefit the perpetrators. Glanville Williams, Professor
of Law, astutely commented on this approach when he argued:
"A critic might say that prison sentences are rarely given or
expected to do the offender good, otherwise than by deterring him from
repeating the offence, of which there was no risk in this case, the
source of the provocation being dead. What a prison sentence might
have done would have been to reaffirm the principle that husbands
cannot strangle their scolding wives (however intolerable their wives
may be) without expecting a prison sentence for it." (Williams
1992: 381)
This is the heart of the issue. The leniency with which male violence
is treated reinforces the condoning of violence against women and is an
important factor in maintaining patriarchal power over women. Judges are
allowing men to walk free after murdering their wives, who are often
desperate to get away from them. They do not ask defendants why they do
not leave or seek help for marital disharmony rather than kill, but
instead extend sympathy to them. Violence is seen as a quite legitimate
way to behave, even when it results in the death over two wives a week
(over 40 per cent of women killed by men are killed by husbands,
cohabitees or lovers or have had such a relationship in the past).
Two points should be kept in mind when comparing the way that men and
women are dealt with in domestic murders. Firstly, women kill less
frequently than men: the ratio of men killing women to women killing men
is about 3 to 1. Between 1989 and 1997 the numbers of women indicted
averaged around 30 a year, compared with an average of 100 a year
involving men who were indicted for killing their wives, ex-wives or
lovers (Criminal Statistics 1997). It is estimated that two thirds of
these are in response to male violence ( Wilson & Daly 1992)
Secondly, the reasons men kill wives or partners appears to be
different from the reasons women kill husbands or partners. Both cases
are associated with a history of violence from the husband. Women most
often kill when violent men simply will not let them leave, whereas men
kill to stop them leaving. Wilson and Daly (1998) analysed why it is
that men account for so much violence and argued that violence arose in
pursuit of male sexual proprietariness. In other words it is a product
of aggressive masculine inclinations to coerce and control wives and
these inclinations evolved and assumed their present forms in order to
deter infidelity and autonomy., They see 'sexual proprietariness' as an
adaptive mechanism which evolved as a way of contributing to personal
reproductive success in ancestral environments. This is epitomised by
the often repeated statement from assailants the ' If I can't have her
then no-one else can'. They propose that emotions and actions indicative
of sexual proprietariness and the commodification of women are
contingent products of sexually differentiated evolved mental mechanisms
in the contexts of particular historical and cultural circumstances.
Jones, an American criminologist who undertook a major study of women
who killed their partners, found that 'it is because women leave or try
to, that they are killed' (1991:367). She also found that at least half
of all women who leave abusers are followed and harassed or assaulted
again, many of them fatally. A Canadian study replicated these results
in finding that it was at the point of separation or divorce that women
are most vulnerable to being killed by their husbands or cohabitees
(Wilson et Daly 1992). Research in Britain too has found that a third of
women who leave violent men suffer abuse to their children and/or to
themselves after separation (see Radford 1993:178, Women's Aid 1998
Report, Hester & Pearson 1998 ).
Christopher Nuttall, Director of Research and Statistics at the Home
Office, who analysed 1071 killings of wives by husbands or lovers that
took place between 1983 and 1991, found that 62 per cent of men were
found guilty of manslaughter rather than murder. 47 per cent used the
defence of diminished responsibility, 32 per cent provocation and 21 per
cent no intent to kill ( Nuttall 1993). He reported that 73 per cent of
the men convicted of manslaughter received a prison sentence, the
average being 56 months (around four and a half years).
Research undertaken for the two-part Dispatches Channel 4
documentary, Men Behaving Badly, shown in April 1998 investigated to
what extent domestic violence is being treated as a crime. We designed a
detailed questionnaire which was distributed to police Domestic Violence
Units (DVU) , solicitors' offices, Women's Aid and other women's
organisations and through personal contacts. 380 women participated in
the survey: 100 of these were from women who had not reported the
violence to the police, 100 from women who had reported the violence but
not gone to court, and the remainder from women who had gone to court.
About twenty of the total sample, some of whom appeared on the
documentary, were interviewed in depth about their experiences and the
interviews were transcribed.
Secondly, we asked the domestic violence unit (DVU) at a London
police station to analyse all cases between January and July 1997 to
find out what action, if any, had been taken, by the police, the CPS and
the courts. Thirdly, we gained the co-operation of the police to
undertake a sentencing study to investigate whether domestic violence
was being treated differently from other forms of crime (i.e. non
domestic offences).
DVUs were set up in most police authorities in the early 1990s in
order to give some support to women suffering domestic violence. They
however have no investigatory powers and do not take the decision
whether to charge or arrest which is left to uniformed officers. We
found that the lack of investigation following reports of violence was a
major shortcoming of the police response. Whereas in the event of a
reported burglary, an investigation proceeds, in the event of a domestic
assault, even where repeat victimisation is evident, follow up rarely
takes place. If domestic violence is to be treated seriously, then
resources need to be made available to enable cases to be properly
investigated and followed up, as is the case with other crimes.
In the DVU study of reported incidents of domestic assault at the
London police station, out of 512 cases only I in 5 cases led to
arrests. We also checked with 50 police forces and found that their
arrest rates were similar or even lower. Yet two thirds of the women in
our survey said that they wanted the police to arrest or remove the
perpetrator. The police argue that there is often insufficient evidence
to make an arrest. Women, on the other hand, reported that the police do
not always understand the violence they are experiencing - they are
often literally hostages in their own homes. Some injuries, such as
strangulation marks on the neck, for example, may not appear to be
serious and may take some time to become visible. The police appear not
to take into account that strangulation is the most common method used
by men to kill their wives of partners ( Home Office Statistics Research
Department 1998).
Other injuries are not visible without examination. One respondent
told the police she had a lump on her head where her husband had head
butted her and wanted her partner arrested, told us that the police had
said 'Sorry love, we can't arrest him. There are no marks on you'. A
duty police officer told another woman, who had staggered into the
police station after being held hostage by her husband for several
weeks, that her extensive injuries could not be used as evidence as they
had not been inflicted in the previous 24 hours. The fact that she had
only managed to escape with her life was ignored. The police fail to
appreciate that by the time they are called, the violence may well have
gone on for months, or in some cases years. The survey results indicated
that number of times women were assaulted before calling the police
ranged from more than 30 times (31 per cent), over 10 times ( 50 per
cent), between 5 and 10 times ( 21 per cent) to less than 5 times (29
per cent).
Of those arrested in the DVU analysis, 62 were not charged by the
police, and only 31 were charged over the 6 month period. Nine (29 per
cent) of the 31 cases were discontinued because the victims withdrew
their statements. The reasons given included 'child asked her 'not to
send Daddy to prison'', former partner offered to give her half the
house if she withdrew charges, woman said she 'pursued many prosecutions
in the past but nothing had happened in the way of punishment so no
point'. Compellability needs to be used sensitively, but some women in
our survey certainly wanted the decision to go to court taken out of
their hands. As one of the women interviewed put it '' I think the
police give up too easily. The reason women fail to co-operate is not
that women do not want action taken but due to fear of reprisals if they
do'.
Of the 512 incidents reported a mere 19 (3 per cent) of the original
cases reached court and, of these, only 13 resulted in a conviction,
less than 3 per cent. In only two cases were the men sent to prison, one
of whom was sentenced to three months although he had had thirteen
previous court appearances for assault. Typical sentences were fines,
community service orders and conditional discharges. Over half the women
surveyed did not think the police took domestic violence seriously or
seriously enough. 1 in 5 said they would not call the police again.
The most cited reasons given by the police for not taking action was
that the victim was not willing to give a statement (32 per cent), or
later withdrew it (6.5 per cent); and insufficient evidence (34 per
cent). The reason for the police failure to proceed is usually accounted
for by arguing that women 'love too much' and are ambivalent about
taking action against the perpetrators of violence. The police do not
appear to take into consideration that women are usually terrified of
retribution from their abusers and are still given little protection
against them. Nor do injunctions give them protection. One of the main
problems is that even when abusers persistently break injunctions,
judges do not often send them to prison.
Women in the survey were critical of the way the police and the CPS
dealt with their complaints on several grounds. Firstly, evidence of
their injuries was often not documented. Secondly, the victim's fear of
retaliation was not taken seriously. Complainants reported being asked
to make statements in front of their assailants when terrified of
retaliation. Fear was the main reason women gave for not reporting
assaults. 70 per cent of unreported cases victims were afraid they would
be hurt as a result. It was for this reason that women refused to give
evidence when they had reported the case. They were terrified that the
abuser's violence would escalate. In several cases where men were
arrested, this was exactly what happened. They returned to punish women
for reporting the violence.
These results are mirrored by Cretney and Davis (1996, 1997) who
carried out an extensive study of the police and CPS handling of
domestic violence cases in Avon and Somerset focusing particularly on
the way the police, CPS and courts 'manage' the reluctant victim and on
the compellability provision whereby a wife can now be compelled to give
evidence against her husband (see Police and Criminal Evidence Act 1984,
Section 80). They followed up over 400 cases of domestic assault heard
in magistrates and Crown Courts in Bristol of which only 10 per cent
came to trial. They argued that the disinclination of many domestic
violence victims to give evidence against their assailants may be
understood as a reflection of courts' inadequate trivialising response
to the harm suffered. Complainants were very dissatisfied with the
system, where charges were routinely reduced where they considered
sentences were too low.
Cretney and Davis presented a number of criticisms of the adversarial
system pointing out that defence lawyers used a variety of tactics to
undermine the prosecution's case, such as painting a picture of restored
domestic harmony, or suggesting that the accusation is made by a woman
scorned or by a jealous or alcoholic woman. They often played down the
violence. Mild language was used when referring to the degree of
disharmony between the woman and her assailant and strong language when
referring to the character of the complainant. They pointed to the
shortcomings of the adversarial process, whereby only the bare outline
of the incident is presented in court even though it represents the
culmination of years of violence. They analyzed why sentences were so
low for offences involving such serious levels of violence and concluded
that what crucially determined sentence length was not the gravity of
the offence, but whether or not the defendant was still seen as part of
'the couple'. Where the relationship had ended, offenders were much more
likely to go to prison; where it was said that the two were still a
'couple', the offender would receive a fine or a conditional discharge.
Some magistrates defended lenient sentences on the grounds that they did
not want to punish the victim as well as the offender. However, such
practices acted as an incentive for the defence to present the court
with a misleading picture of domestic harmony and resulted in high
levels of dissatisfaction among complainants. Many of the women
interviewed had hoped that their assailant would receive some kind of
treatment to help him control his violent behaviour. Most assault
victims concluded that the court was not a place where their problems
could be satisfactorily addressed.
The Dispatches sentencing survey in the seven police authorities
involved comparing 80 cases of domestic and non-domestic assault
reported in January and February 1998. Even when equivalent violence was
used, domestic cases were more likely to be charged as common assault
than actual or grievous bodily harm. Where the more serious charge was
brought, it was for more likely to be downgraded. This happened in 53
per cent of domestic cases compared with 14 per cent of non-domestic.
The findings clearly indicated that domestic violence cases were more
likely to be downgraded to less serious charges by the CPS and were
treated less seriously by the police and the courts.
Changing the Climate of Opinion
Domestic violence is now recognised as a social evil as well as a
private misfortune. A number of high profile cases have been widely
publicised - for example, the well known cricketer, Geoff Boycott who
was convicted after hitting his mistress, Margaret Moore twenty times at
a hotel in the South of France in 1996 (Anthony 1998, Carter 1998), the
footballers Paul Gascoigne, whose attack on his wife hit the headlines
in 1996 (Daily Mirror October 29, 1996) and Stan Colymore, Aston Villa
footballer whose vicious attack on his girlfriend, TV presenter, Ulrika,
took place in public during the 1998 World cup series (Carter 1998).
In the early nineteenth century domestic assault were not seen as a
crime - indeed it was legal for a man to beat his wife as long as the
stick was not thicker than a man's thumb. Likewise rape of a wife was
legal and was only significant if it involved the 'property' of a man
The law on rape evolved to protect the theft of female sexual property,
not to protect women themselves. Rape violated not her bodily integrity
but the patriarchal ownership of her sexuality. Therefore it was not
possible for a man to rape his wife as she belonged to him. On marriage
women were therefore deemed to be their husband's property and up until
the 1888 Married Women's Property Act a women's earnings, if she had
any, belonged to her husband. Up until the 1969 Divorce Act a woman's
right to divorce was dependent on the court's view of her sexual
morality. It is not until 1991 that the marital rape exemption finally
removed support for a husband's demand for the right to non -consensual
sex..
Seen within this historical context, it is easier to understand why
domestic violence is still condoned. Even in the late 1990s a
significant proportion of the population do not consider violence
against women is wrong. Burton & Kitzinger (1998) in their in-depth
study of young people's attitudes towards sex, violence and
relationships found widespread acceptance of forced sex and physical
violence against women in their study of young people's attitudes in
Glasgow, Manchester and Fife. The research, commissioned by the Zero
Tolerance National Trust, was based on a survey of 2039 young people
mostly aged 14 and 21 and ten focus groups discussions. When asked
whether abuse violence against women was ever acceptable, one in five
men and one in ten women agreed. One in four men thought it was OK to
hit a woman if she had slept with someone else. one in eight if she was
nagging, one in ten believed if she had been disrespectful if she were
his wife and 8% if she was his girlfriend. Provocation such as nagging
was sometimes seen as justifiable violence. Forcing a woman to have sex
was also widely accepted and some men believed themselves incapable of
stopping when at a certain point of arousal. IV. Is there an
alternative?
The practical consequences of the way the criminal justice system
treats domestic violence results in a process of de facto
decriminalisation through shifting the responsibility for violence on to
the victim and that, by resulting in frequent acquittals send the
message that such activity is basically normal and to be condoned or
turned a blind eye to and that women are increasingly making false
allegations, spurred on by rabid feminism. This is reflected in Liz
Kelly's (1998) evaluation report on the Home Office pilot project
Domestic Violence Matters carried out in two London boroughs. She found
that in the six months immediately prior to the setting up of the
project in 1993 almost two thirds of domestic violence incidents were
not recorded as crimes and of the total arrests, charges were laid in
less than half (47 per cent). This was just over one sixth of the
offences which were crimed. During the period covered by the pilot
study, a higher proportion of cases were recorded as crimes but the
findings on the rate of arrests were inconclusive. She concluded : There
has not been the movement in relation to law enforcement which the
project initially hoped for. Whilst some responsibility for that must
lie with the local criminal justice agencies, other factors were also at
play. The attitudinal barriers and routine trivialising of domestic
violence, which the police surveys documented, suffuses the police
service, despite policy changes, and was echoed in some of the attitudes
and practices of prosecutors, magistrates and judges (1997: 102).
She points to the failure of the criminal justice system as a whole
to prioritise the safety of victims, particularly by not using remand in
custody or pursuing breaches of bail vigorously enough. She refers to
the approach adopted by the CPS, which does nothing to enable or
encourage victim witnesses; starting from the presumption that women
will withdraw, prosecutors act in such a way that in many cases this
becomes a self-fulfilling prophesy. As an alternative approach, she
points to the experience of other jurisdictions, which have seen the
creation of trained prosecutors who specialise in domestic violence
cases. She adds that 'in some jurisdictions this has been extended to
dedicated magistrates and judges and even the creation of domestic
violence courts' (Kelly 1997: 49).
Hoyle's (1998) study, based both on interviews and participant
observation, takes a very different stance. She aimed to discover what
factors shaped the Thames Valley police and CPS response to domestic
violence in the light of the Home Office circular introduced in 1990
which recommended arrest in such cases, but failed to make much impact.
She investigated how officers attending domestic disputes defined the
situation and negotiated solutions and why police failed to enforce the
circular by arresting the assailant in the event of an assault.
In line with previous such studies, she found that police attributed
this mainly to the frequency with which victims withdrew their
statements, and to police and prosecutors' perceptions of the
effectiveness and appropriateness of the criminal justice system. She
appears to take women's 'preferences' about how to deal with violent
partners largely at face value and argues that the police and criminal
justice system are mainly fulfilling their wishes. She considers that
previous studies have underestimated the role of victims in these
decisions and have assumed that the police and prosecutors rarely wish
to prosecute such cases. She is critical of the idea of mandatory arrest
which she thinks would fly in the face of what most women want, and
although she makes a distinction between arrest and prosecution, the
distinction often get lost.
From the beginning Hoyle distances herself from feminist
criminologists arguing that they have not taken sufficiently into
account the reluctance of women to pursue cases to prosecution and have
blamed police culture rather than what she regards as 'police
sensitivity to women's preferences'. In her view the original aims of
the women's movement have receded and been replaced by criticism of the
criminal justice system which has a adopted 'right wing' calls for
greater criminalisation. She fails to take into consideration the
distinction between arrest and prosecution and to understand that
mandatory arrest need not lead to greater criminalisation. She overlooks
pressures on witnesses to drop cases: that, for example, the Crown
Prosecution Service does nothing to encourage victim witnesses and often
starts from the presumption that women will withdraw which then becomes
a self fulfilling prophesy. Her view that the direction of the women's
movement has changed is simplistic. It overlooks the dramatic success of
Women's Aid refuges and services, of Zero Tolerance campaigns throughout
the country, and of all kinds of community programmes from courses to
encourage men to take responsibility for their violence to the setting
up of multi agency forums.
What then are the possibilities for reform? Recommendations to
toughen up this or that aspect of the criminal justice system - to get
police to take domestic violence 'seriously', stop prosecutors dropping
cases, or change trial procedures are very difficult to get beyond the
level of wishful thinking. In attempting to develop a feminist politics
from such an analysis, the dilemma is the perennial one so often
encountered by feminists: given that it is not possible to stage a
revolution and implement the feminist agenda in toto, what piecemeal
reforms will achieve at least marginal improvements for some women and
can this be achieved in a way which leaves us free to work for the
longer term agenda?
In some situations, feminists have been able to enter into a dialogue
with sympathetic governments while lacking a power base from which to
ensure that their agenda is fully implemented and not jettisoned by the
legal establishment with its invested interests. (Such as the Sexual
Offences Amendment Act of 1976). For example, feminists working for
Women's Aid in the 1970s were able to play a major role in the drafting
of the Domestic Violence Act 1975. They were not able to prevent the
restrictive judicial interpretation of its key provisions, combined with
an initial unwillingness on the part of the police to play their role
fully. Nor have they been able to stop the subsequent cut-back in
resources for Women's Aid with the steady erosion of any political will
to make the law work effectively (See Edward's 1996).
As Carol Smart (1989) has pointed out the main dilemma for any
feminist engagement with law is the certain knowledge that, once
enacted, legislation is in the hands of individuals and agencies far
removed from the values and politics of the women's movement. She makes
the point that the history of law reforms have revealed the failure of
law to legitimate women's claims. The Italian feminist Tamara Pitch
(1995) has also warned of the generally disempowering effects for the
feminist movement of handing over problems to the state apparatus to be
dealt with on its terms and by its personnel. There is a danger that
advocates turning to the criminal justice system and forcing it to
respond will only exacerbate the problem and that patriarchal
institutions are not going to support the emancipation of women.
There is a final, pragmatic, reason for looking elsewhere to the
criminal justice system. The prison population is rising steadily and
there is every indication that it will continue to do so. Between 1980
and 1996 twenty two new prisons were built (see Howard League 1996). The
Crime and Disorder Act 1998 requires the police to undertake an audit of
the incidence of crime in the area and a programme to reduce it. It will
also criminals all sorts of anti-social behaviour by neighbours, enable
the police to arrest truants and to use Blunkett's words 'appropriate
penalties for the hard-core of regular offenders', and courts to fine
parents up to £1,000 for their children's non attendance.
The civil procedure
It is worth turning to the civil procedure not as an absolute
alternative set of remedies for the victims of rape and domestic
violence, but as a focus for campaigning where reforms may be more
achievable if backed up by an effective criminal justice system. This is
the second sense in which I want to talk about decriminalisation. It
might sound paradoxical to first denounce the criminal justice system
for decriminalizing rape and domestic violence, and then, urge
decriminalisation as a remedy. But we are talking in two different
senses: the first as decriminalisation as condoning violence, and, the
second, decriminalisation as a search for alternatives methods of
redress of wrongs.
An emphasis on civil procedure might seem paradoxical for a second
reason: a standard view is that civil procedure presupposes two
litigants of roughly equal power engaged in a dispute. Criminal
procedure is a tripartite system in which the state becomes in effect
the victim - the crime is against the public peace as many jurisdictions
formulate it - and the actual victim simply the chief witness for the
state. The argument is usually that the criminal justice system, by
taking over the case, is able to redress the balance of power between
victim and offender. In many crimes - particularly rape and domestic
violence - the offender is more powerful than the victim. But not more
powerful than the state. But there are two reasons for rejecting this
argument in the case of rape and domestic violence.
Firstly, to regard victim and offender as equal parties to a dispute
in relation to domestic violence, would be a positive gain. Secondly, I
argued that this is how the police and the courts actually viewed many
such incidents - as essentially private disputes which had no business
being in the criminal courts or wasting the time of the police in the
first place. The problem is of course that nothing gets done as long as
the passivity of the victim is encouraged as it is in the criminal
justice system. If the victim is going to be held responsible anyway as
a de facto disputant, then a strategy which starts from this fact, and
which seeks to empower the victim - rather than give yet more powers to
the criminal justice system which are unlikely to be used - may be the
best way forward. So lets take the road of civil remedy seriously -
perhaps we have no alternative - and encourage victims to act properly
as civil disputants. This has the advantage of being not incompatible
with the need to empower women as actors. The fact is that any form of
criminal justice system, by handing over problems to the state,
disempowers the victim in so far as decisions regarding their case are
taken out of their hands in so far as the police, the CPS and the courts
decide whether or not and when the prosecution will go ahead.
The beginnings of a shift to civil justice is already under way.
Justice, an all-party human rights and law reform organisation published
a report in 1998 on the role of the victim in criminal justice. Evidence
from the Family Law Bar Association to the committee contrasted the
empowering, quick and far more user friendly response of civil justice
with the alienating, slow and distant response of criminal justice. The
evidence stated:
'In the civil case the duty of the court is to enquire, to confer
protection to the victim... and where appropriate to punish. The victim
has the possibility of legal advice and procedures normally involve
previously written evidence, rather than oral evidence. It is not
surprising that some victims feel that civil proceedings are sufficient'
(Justice 1998: 54).
Obviously to take the trouble to fight a civil action for restraint
in the case of domestic violence is costly and time consuming. But the
issue is this - where do we put our energies: trying to tinker with a
criminal justice system which history shows us will subvert any reform
or to try and develop mechanisms of support which will enable more women
to take civil action? Indeed, many feminist campaigners have been
concentrating their efforts at the community level and the many
successful interventions, discussed below, have undoubtedly been by
Women's Aid and Zero Tolerance which has led to campaigns to attack the
way domestic violence is condoned.
Two types of community interventions have recently been developed
involving the development of inter agency co-ordination to promote the
safety of women, programmes for perpetrators. Concerning the first of
these, in 1995 the Home Office issued an Inter-Agency Circular (Home
Office 1995) to stimulate the development of co-ordinated inter-agency
work at a local level. Hague et al (1996) evaluated these schemes in
order to provide policy and practice guidelines and concluded that
Domestic Violence Forums operated with greater and lesser effectiveness
in different areas. They found that there was very patchy participation
by some statutory agencies and no guidelines on how the inter-agency
policies should function. They concluded that it was pointless to
improve if the system being co-ordinated was inadequate or inappropriate
and pointed out that such initiatives could merely act as a
smokes-screen or as a talking shop which disguises inaction and poor
services. Adequate resourcing is crucial, both for inter-agency domestic
violence work and for refuges and other direct services if the approach
is to be successful.
A second development is work with violent men undertaken either in
the voluntary sector, or in partnership with the probation service or
local domestic violence fora. These initiatives developed out of the
Domestic Abuse Intervention Project (DAIP) in Duluth, Minnesota which
embodied a co-ordinated response which combined working for women's
safety and working with men to take responsibility for their behaviour
(see Pence & Paymar1988, Dobash et al 1996). The overall aim of the
Duluth model is to create intolerance of male violence. The idea of
challenging violence men to take responsibility for their violence was
developed in a community project based in Boston called Emerge, and
during the late1980s over 200 projects had been set up ( Dobash &
Dobash 1992).
A similar project developed in the 1980s in La Crosse, Wisconsin. The
fundamental premise is that domestic violence is seen as a community
rather than an individual problem, which demands a co-ordinated
community response. Such an approach involves three integrated
strategies: a mandatory arrest policy, a domestic abuse task force and
court officials working in close co-ordination with the woman's shelter.
The mandatory arrest policy, implemented in 1989, means that the police
are mandated to make an arrest in response to all incidents of domestic
violence where there is evidence that a crime may have been committed.
Police have to justify why they did not make an arrest rather than vice
versa. In Wisconsin I was told by the domestic Intervention Task group
that out of 18,000 incidents police were called out to, roughly 9,000
resulted in an arrest. Training is integral to the project and all
police are thoroughly trained in the approach to domestic violence and
top up training workshops are held every year. Of the 9,000 incidents,
90 per cent of cases are directed by the family court to violence
prevention programmes where men have to attend weekly group sessions for
26 weeks for which they pay about 20 dollars a session. These sessions
are run by male and female co-therapists. If the abuser fails to attend
then he is immediately arrested and sent to prison. Until the
disposition of the case, which lasts anything up to five days, men can
be banned from contacting or visiting the home. Additionally an abused
wife can also apply for a court restraining order which lasts up to two
years. Where repeat victimisation has occurred resources such as panic
buttons and support workers are also provided and where children are
involved, advocates attached to a Child Protection Team are put into
contact.
Mandatory arrest has been criticised on a number of grounds. As
Dobash and Dobash (1992: 183-184) point out one of the first documented
effects of mandatory arrest legislation was an increase in the number of
women arrested for using violence to defend themselves There is also the
danger that it could be used as a way of discriminating against black
men. Additionally, some women do not always want their husband or
partner arrested and might be put off contacting the police (Hoyle
1998). The Domestic Violence Task Force considered that although this
was sometimes the case, once the men had been referred to violence
intervention project, most women changed their minds and were relieved
that something was being done about the violence.
Implications These initiatives raise the question of what is the best
remedy for the perpetrators of domestic violence and rape. Adding to the
overcrowded prison numbers - where they are likely, while out of sight
and mind, to rape again or be raped is no solution (There are no
statistics in the UK for prison rape but in the US the Stop Prisoner
Rape, a national non-profit making organisation dedicated to combating
rape of prisoners and providing assistance, estimated that the number of
rapes in US prisons is in excess of 60,000 taking place daily).
Cowburn's (1998) analysis of the influence of the dominant form of
masculinity in prisons on the culture of the male prison establishments
where sexism is rife, lends little confidence to the effectiveness of
violence prevention programmes in prison. As Howard Davidson (1986), a
Canadian prison abolitionist at a 1986 conference organised by Dutch
prison abolitionists, argued, since imprisonment fosters the forms of
domination which include violence against women, feminists should look
at community control alternatives rather than state control approaches.
Given that such programmes are likely to be more effective outside
the harsh environment of prisons, the core question is whether such
programmes can work in the community. Burton et al (1998) in their
evaluation of such schemes question what success means: does it mean
that men change and, if so, how and why do they change? Does the level
and extent of the change justify the expenditure or does it mean that
the men are diverted from other sanctions which the criminal justice
system ought to be applying? If physical violence is the baseline,
Edelson (1996) in his monitoring of programmes, found that they do stop
some of the men who complete the programmes from behaving physically
violently at least in the short term. However there remains the problem
of a significant number dropping out before completion.
The need to address this problem is underlined by Burton et al's
(1998) analysis of the records of 351 men who had been seen by the
Violence Prevention Project over two years. They found that 57 per cent
of men who were accepted onto the programme had failed to complete it -
higher than the 50 per cent found in projects in the United States.
Keeping men in programmes was connected to three linked factors:
recognition of their responsibility for violence, motivation to change
and sustainability. The researchers conclude by arguing that the jury is
still out as to whether such schemes are effective in the long term.
They point out that why programmes are effective, and why some men
change and others do not, remain matters of debate and continued
scrutiny (1998:1X), but they are only likely to be effective if as
Burton et al (1998:34) emphasise 'a clear and consistent message is
delivered that domestic violence is unacceptable, and that the courts
expect change'. They do not assess whether such programmes are more
effective than prison sentences, but there is an argument that more
humane interventions than prison are at least likely to be less damaging
(see Box Grainger 1986; Dobash & Dobash 1996).
A crucial precondition is that support services to ensure the safety
of women should be effective if men are to attend such programmes as an
alternative to custody. In 1997 one of the first of such pilot projects
was set up in the London borough of Hammersmith. This two year Domestic
Violence Pilot Project combines a Violence Prevention Project (VPP)
working with men and a Women's Support Service (WSS) working with
partners of men on VPP and women who self refer. The overall philosophy
is to increase women's safety at the same time as reducing men's
violence.
As Snider (1998b) argues an increase in the use of criminal justice
only shows that social control is growing. The high proportion of ethnic
minority women indicate that there is prejudice against what is
considered the unconventional nature of their lives (see Genders and
Player 1989)
Conclusion: A new relationship between civil and criminal justice?
Civil courts are usually concerned with monetary compensation, but it
would not be difficult for civil injunction or awards for damages to
make, for example, the amount of damages, or the duration of the
injunction contingent on the perpetrator attending such courses. Such
intervention projects must rest on the two core principles underlying
the pilot domestic intervention projects: increasing the safety of women
and children and challenging men to take responsibility for their
behaviour. However, in view of the problems addressed above, in
particular the high number of men who drop out of violence prevention
programmes, I am in no way advocating a complete displacement of
criminal by civil proceedings. As the report by the Justice committee on
the role of the victim in criminal justice argues: 'There will be
victims and offences for which the criminal justice response is the most
appropriate one, victims and offences for which civil justice is the
best remedy, and a considerable number which need to use both systems'
(Justice 1998: 54).
Criminal justice agencies would have, in this scheme of things, three
vital roles. Firstly, the violation of injunctions (or the non-payment
of damages) or the failure to attend perpetrators courses where these
were ordered. The Family Law Act both streamlines the processes for
applying for civil injunctions and aims at ensuring that police powers
of arrest are attached to the majority of such injunctions. In future,
if injunctions are breached, abusers should increasingly face the
sanctions of the criminal law. The problem is that as the Dispatches
(1998) programme found, judges in the civil court are reluctant to send
men who breach injunctions to prison. Training for judges in this area
is long overdue and must be seriously addressed by the criminal justice
system.
Secondly, in some cases criminal prosecution could follow successful
civil proceedings. In rape cases for example if claimants were supported
through legal aid to take out civil proceedings and where successful,
the police and CPS could then decide whether to proceed to criminal
prosecution. Successful civil action, although working with less
stringent canons of proof, provides a useful indicator of the likely
outcome of a criminal action. It is used in the US complex corporate and
white collar crime cases as a criteria for activating otherwise costly
and lengthy criminal proceedings whose outcome might otherwise be less
certain. It is interesting to speculate what the outcome of the O.J.
Simpson case might have been if the civil action for unlawful killing
had preceded rather than followed the unsuccessful criminal prosecution
for murder. Civil actions enable a great deal of evidence to be
assembled and the police do not have a monopoly of investigation. A
successful civil action would undermine the monopoly of wisdom of the
CPS in deciding on evidential sufficiency if not the public interest
Thirdly, in cases where there was firm evidence, or where the
defendant was dangerous and ineligible for bail, then criminal
proceedings could proceed without civil proceedings. Such cases should
be dealt with quickly and should not be subject to the lengthy delays
typical of the courts today.
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