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Distinguishing shades of grey

Distinguishing shades of grey

August 21st 2014

The Government is launching a consultation on the usefulness (or otherwise) of a specific offence of 'domestic abuse'. As the BBC identifies, "There are a string of laws that already cover acts of violence, stalking and harassment - but none of them refer in their wording to personal relationships or the precise terms of the official definition of domestic abuse."

The official Home Office definition of domestic abuse in England and Wales – which is not a legal definition - is:

"Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality."

The behaviour captured in this definition includes: "… a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim".

The clarity of violence
There is an immediate definitional problem above, in the running together of violence and abuse (not to mention the running together of intimate partner violence and abuse and family violence and abuse under the ‘general’ heading of ‘domestic’).

Of course, physical violence towards another is abusive behaviour, but for cases involving criminal behaviour we need to distinguish between the two. For example a relevant functional distinction is between aggression and violence, which are different, but would generally be regarded as synonymous.

The reference above to “a pattern of acts of assault” is clearly about violence whether in the context of an intimate relationship or not. This seems one of the most straightforward things to identify and respond to, since someone either does or not hit someone else.

However, research suggests that as much of 60% of intimate partner violence and abuse is ‘low level’, by which I mean pushing, shoving or slapping. Calling this ‘low level’ in no way attempts to minimise the behaviour, or what it's like to be on the receiving end, but is an attempt to distinguish between this and behaviour which does result in broken bones, broken teeth, injuries requiring hospitalisation etc.

If up to 60% of the violence is this ‘low end’, then while it is still violence, still potentially injurious, it is unlikely to lead to prosecution – so a specific law rendering this illegal in the domestic context is unlikely to add much. If the violence is sufficient to result in injury, then existing laws already cover this ground, although one can argue that the criminal justice system as a whole gives insufficient weight to crimes against the person. A recent case local to Cardiff exactly highlights this issue.

My work as an Expert Witness for the Family Court has shown me that unless injuries are dealt with immediately and recorded – so there is for example a pattern or records of hospital treatment or GP records – then once these injuries heal we are simply in the realm of allegation. The task then is to seek corroborative evidence, which will often be in the form of finding the patterns or instances of other behaviours which, taken together, form a picture enabling a judgement that supports or does not support allegations.

Non-physically injurious behaviour: domestic ‘abuse’
To return to the definition, we need to think about what ‘controlling or coercive’ behaviour means, if we are separating this out from violent behaviour.

Research suggests that the presence or absence of particular personality characteristics and behaviours in both men and women at age 15 is the best predictor of a predisposition towards abusive behaviours in intimate relationships in adulthood. There is a good case for what has been described as an ‘abusive personality’, or a ‘stable, coercive interpersonal style’ which shows itself in the wider world as well as in the crucible of the intimate relationship.

The person who is rather bullying or dogmatic at work is likely to also be so in their intimate relationship. This ties in with research suggesting that the majority of domestic violence and abuse as well as being ‘low level’ is bi-directional – i.e. there is no clear perpetrator and victim, but a rather more fluid or changeable arrangement.

As said above, with domestic violence it's (often) clear when a physical assault has occurred - and a crime is committed. But demonstrating that someone is ‘controlling or coercive’ to an abusive extent is likely to be far less clear-cut. We may think we know what this means, but if up to 60% of intimate partner violence and abuse is bi-directional, the implication is that this is normalised for the individuals concerned: it’s not understood by them as ‘abuse’ but simply as the way relationships ‘are’.

For instance, one of my first Expert Witness cases involved a couple where both had behaved violently and abusively, tried to control the other, and both had a history of being in care, failed relationships and so on. Neither had any internal model of what a ‘good’ relationship was – and neither understood their relationship as abusive.

Hence, to charge someone with a criminal offence for behaving the way this couple did – even where their behaviour could well be described as coercive or controlling – would seem like punishment for being who they are. This argument is of course linked to a therapeutic perspective about the role of attachment styles, previous trauma and unconscious psychodynamic aspects in domestically abusive behaviour.

Intentionality and the burden of proof
Behind the move to create a specific offence of domestic abuse seems to be a sense that all ‘abusers’ know what they are doing and do it deliberately – instrumentally, to gain a goal. This is the understanding in a mainstream feminist or pro-feminist analysis concerning the deliberate imposition of power and control backed up by the threat of violence.

The difficulty is that while some domestic violence and abuse is entirely instrumental and calculated, this represents only a small part of the spectrum: it is the higher end of seriousness, described by the phrases ‘intimate terrorism’ and ‘coercive control’, and must be addressed.

Just about all behaviour, abusive or not, has some degree of intentionality, some sense of goal-directedness, even if not clearly 'worked out'. But to criminalise such a potnetially wide range of dysfunctional relationship behaviours as are covered by the phrase ‘a pattern of coercive or controlling behaviours’ seems problematic.

How the burden of proof will be served? In civil cases - i.e. family cases - the standard is the 'balance of probability'. But criminal courts answer to a higher standard of 'beyond reasonable doubt'. How does a failing or dysfunctional relationship with two unhappy people, potentially trying to hurt one another deliberately,  differ from a ‘criminally’ emotionally abusive one?

So would a specific offence of domestic abuse be a good thing?
Current laws would appear to cover the use of violence adequately – a physical attack remains that whether it be in a pub fight with a stranger or against a partner in an intimate relationship. Making the latter a specific offence seems unnecessary if the existing laws are adequately prosecuted.

For non-violent abusive behvaiour, it seems as if the key grounds will be about scope and intention. For the minority of cases, at the serious end, where there is a pattern, and a deliberate attempt to control, then legislation to make this behaviour an offence might enable prosecution.

Legal Services Commission cuts and cuts to the legal aid budget mean that the scope for calling an expert witness who can comment meaningfully on these issues to aid the Court, in both civil and criminal cases, is now far more restricted. This might hamper prosecutions where the issues are 'grey' and focus on deciding whether a non-physical behaviour does or does not fall within a certain definition of abuse.

The risk is that for the majority of the continuum, where there is coercion and an attempt at control, but it is embedded in the fabric of a dysfunctional relationship, we may end up punishing damaged individuals simply for being themselves.