Domestic Violence – Definition & History
Choudhry and Herring have labelled violence against women by their intimate partners, an ‘epidemic of global proportions’. Although the range of legal remedies for Domestic Violence has increased in England and Wales over the past thirty years, the criminal law has been slow in developing and has failed to introduce a specific criminal offence of Domestic Violence.
The occurrence of domestic violence is often underestimated in the public consciousness. It is not easy to gather accurate statistical data on domestic violence due to it being unreported. Giddens states; ‘the home is in fact the most dangerous place in modern society. In statistical terms, a person of any age or of either sex is far more likely to be subject to a physical attack in the home than on the street at night’.
A range of terms have been used to describe violence which takes place between adults in a close relationship. The most common being domestic violence and wife battering. These terms are not an accurate description of this type of abuse because violence is no longer restricted to just wives and not even to domestic situations. Statistics show not all these domestic violence victims are women and it is estimated that 1.2 million victims are women and the remaining 730,000 are men.
Mullender has argued that the term ‘Domestic Violence’ is very problematic as it fails to include everything that occurs in a domestic situation and it also assumes that the people concerned live together. Maguire (1988) states:
“I reject all…titles and descriptions that obscure the real nature of the violence; that it is violence committed by men against the women they live with, have lived with or are in some form of emotional/sexual relationship with…giving any form of violence a name which does not address its nature and causation diminishes its importance.”
From a feminist perspective it is men who are the perpetrators of Domestic Violence and gender-based domination is a result of intimate partner violence by men towards women. Feminist theory of Domestic Violence emphasizes gender and power inequality in opposite-sex relationships. Feminists focuses on the societal messages that sanction a male’s use of violence and aggression throughout life, and the proscribed gender roles that dictate how men and women should behave in their intimate relationships.
Dobash and Dobash claim more that Forty percent of women experience Domestic Violence in their life time and in most of the cases this violence is at the hands of a man.
Abbott and Wallace have explored three explanations for male violence against women. Firstly, there’s the traditionalist account. This account takes the view that male violence is infrequent. It states that not all women, but most are responsible for the violence against them as they behave in a way that attracts attention that leads to male sexual excitement. This view has been heavily criticized by feminists for being too patriarchal.
The second explanation is the liberal or psychiatric account. This takes the view that male Domestic Abuse is a rare event but when it does occur it is extremely serious. It also believes that male perpetrators of Domestic Abuse are ‘sick’ and ‘ill’ individuals. The mass media favour the liberal account.
And the final account is the feminist account. The feminist is essentially criticizing the above two explanations claiming that they are ‘male stream’. The feminist account argues that the first two explanations lacks a genuine understanding of the lives of women and ignore the seriousness of the issue or even try to blame the women.
A feminist’s approach does acknowledge that women can also be violent in their relationships to men. However, they do not see the issue of women abusing men as one which is as serious as men abusing women and they therefore believe that it does not deserve the same amount of attention or support. Violence from women against men is often different from violence from men against women as it is in self-defence or it is an isolated incident. Dobash and Dobash believe it is very rare for women’s violence against men to be part of an ongoing oppressive relationship.
However, Hester conducted a study which found that women are three times more likely to be arrested than men when they were assessed by the police for being a perpetrator of domestic violence. she suggests the reason for this is because in most of the cases the women were using force in self-defence:
‘Male domestic violence suspects were able to influence decisions made by officers at the scene of the crime, minimising their own role as primary aggressors and making women who were the victims appear as perpetrators’.
Michael Johnson believes “in order to understand the nature of an individual’s use of violence in an intimate relationship, you have to understand its role in general control dynamics of that relationship”. To help understand different situations in a relationship, Johnson has created a typology of Domestic Violence which includes three different types.
The first type of violence is intimate terrorism. This type of violence sees one intimate partner using a variety of tactics to exert power and control over another person.
The second type of violence is situational couple violence. With this type of violence none of the partners attempt to gain general control over the relationship. It is violence which it situationally provoked.
The third type of violence in Johnson’s typology is violence resistance. This happens when a victim, usually a female, uses violence to retaliate against being abused.
The main distinction between the types of violence is the controlling element of the relationship, and not the motive behind the violence. Not all domestic violence situations involve one partner trying to exert power and control over the other. If this is the case, then the violence will be situational couple violence as that type is about the current situation the intimate partners are in.
Johnson’s categorisation is very helpful in illustrating the different contexts and situations were Domestic Violence can take place. Intimate terrorism is seen as the most severe form of Domestic Violence because it sees partners using a range of abusive tactics, not just physical violence to exercise general, coercive control over their partner.
Johnsons typology is supported by some academics, yet not favoured by others. Murray and Powell are in favour of Johnson’s research as they believe it is important to distinguish different types of violence against partners if people’s knowledge and potential to predict and intervene are to progress.
Johnson’s typology has been rejected after academics have conducted research to show that women are more likely than men to be classed as intimate terrorists, going against Michael Johnsons male control theory of Domestic Violence. Research shows that Domestic Violence does not have a specific cause and it is better studied within the context of other forms of aggression.
Domestic violence has been and remains a contentious issue in society today. It is estimated that one in three women will suffer domestic abuse at some point in their life. Domestic violence is often a private crime that does not get reported to the police. Hoff argues that the reason for this is that victims of domestic abuse are extremely frightened or feel a sense of shame.
Research executed by the World Health Organisation shows that there is a variety of factors which keep women in an abusive relationship including ‘fear of retribution, a lack of alternative means of economic supports, concern for the children, emotional dependence, a lack of support from family and friends, and an abiding hope that the man will change’.
The lack of reporting is reflected in the statistics as the estimated numbers of victims is much higher than the number of incidents and crimes recorded by the police.
The British Crime Survey 2017 (BCS) has published the official statistics of Domestic abuse. It is estimated that 1.9 million adults aged between 16 and 59 years experienced domestic abuse in the last year. Also, statistics recorded from 39 police forces in the year ending June 2017 show police forces made 46 arrests per every 100 assaults for Domestic abuse related crimes.
The law has been very slow in responding to domestic violence. It wasn’t until 1991 that the English legal system recognised that a man could rape his wife. Up until this legislation was passed, marriage meant a consent to intercourse. One reason for the police’s reluctance to investigate or prosecute Domestic Violence incidents is because the family is seen as a private sphere in which access by the state should be limited.
Domestic violence challenges the view of the traditional family, that it is a place of safety and a haven in a harsh world. O Donovan suggest ‘Home is thought to be a private place, a refuge from society, where relationships can flourish uninterrupted by public interference’.
However, Suk argues that this safe-haven no longer exists. As statistical evidence has shown, the home is no longer a peaceful place where intervention from the state and local authorities is prohibited. Catherine Mackinnon believes the ideology of privacy is basically a right of men to be let alone to oppress women one at a time.
The next chapter will explore the definition of Domestic Violence from past and present to illustrate how the change in time has seen the definition change and expand. It will also explore the lack of coherence that has led to researchers finding it extremely difficult to develop further research in this area.
A major issue which is problematic for the courts is the term ‘Domestic Violence’ has no general, legal meaning.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) created a definition of Domestic Violence:
Domestic violence means any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence, or abuse (whether psychological, physical, sexual, financial, or emotional) between individuals who are associated with each other.
For the purpose of the LASPO controlling behaviour is defined as a range of acts designed to make a person subordinate and/or dependant by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
Coercive behaviour has been defined as an act or a pattern of acts of assusalt, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten the victim.
This definition is widely drafted to provided victims with effective protection from domestic abuse. It is not restricted to physical attacks and it includes financial and emotions abuse. The issue of whether violence extends beyond physical harms has been addressed by the courts before. In R v Ireland, the term ‘bodily harm’ in the Offences Against the Person Act 1861 was interpreted to include a medically recognised psychological harm. The definition also encompasses people who are family members or people with a connection to the victim rather than it being limited to abuse between spouses.
The definition is LASPO uses the term ‘associated person’ which broadens the definition beyond people who live together to violence between family members.
The definition set out in LASPO was not a universal, legally binding definition as it was in aimed at a limited context of housing benefit. This called for the government to act to produce a wide spread definition of domestic violence which would set a precedent for the courts to follow when faced with a domestic violence case.
The definition in LASPO has been expanded by the government to create a cross-government definition of Domestic Violence:
Any incident or pattern of incidents of controlling, coercive or 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. This can encompass, but is not limited to, psychological, physical, sexual, financial, and emotional abuse.
This new definition has lowered the age in which a person can be guilty of domestic abuse from 18 years to 16 years. It must be noted that this definition is not a statutory or legal definition, so changes in the definition will not result in changes to the law.
The beauty of this definition is that it recognises that domestic abuse does not have to be a single incident and that it is best understood as a pattern of behaviour. Domestic violence is essentially about controlling a person by using a range of different behaviours, not just physical. Evan Stark is in favour of the cross-government definition and provides an accurate summary of Domestic Violence:
‘Most abused women have been subjected to a pattern of sexual mastery that includes tactics to isolate, degrade exploit, and control them as well as to frighten them or hurt them physically … These tactics include forms of constraint and the monitoring and/or regulation of common place activities of daily living, particularly those associated with women’s default roles as mothers, homemakers, and sexual partners, and run the gamut from their access to money, food, and transport to how they dress, clean, cook, or perform sexually.’
Stark’s summary of Domestic Violence provides a greater volume of detail than the definition proposed by the Home Office. This is helpful for the courts as it provides guidelines for judges to follow when deciding the outcome of a Domestic Violence case. However, this summary is only an academics work and will not be binding in court, meaning the judge can totally disregard it in order to shape the outcome of a case the way they want it.
The broad nature of the cross-government definition has been heavily criticized. A broad definition is always worrying for the courts as it has no limitations and it opens the flood gates for a vast amount of cases. Helen Reece argues that employing a definition of domestic violence that includes emotional abuse is a remarkable downplaying of the physical.
Brendon O’Neil argues against the broad definition: ‘the everyday emotional difficulties of living together, of commitment itself, are now treated by officialdom as terrible instances of abuse which might require the intervention of the state’.
However, if the definition of Domestic Violence was narrow, it would exclude some victims from being able to seek help from domestic abuse.
The Supreme Court has recently considered the definition of Domestic Violence in Yemshaw v Hounslow London BC 2011. In this case the appellant applied to be rehoused after leaving her marital home to escape Domestic Violence. The violence was short of physical violence, and because of this the authority had denied a duty to rehouse her. The appellant sought legal action, claiming that in the Housing Act 1996 the term ‘domestic violence’ was not intended to apply only to physical violence.
The court had to consider the definition of domestic violence, for the purpose of the Housing Act 1996. Lady Hale gave the leading judgement, with which Lords Hope and Walker agreed. Lady Hale held the term ‘domestic violence’ had come to acquire a meaning beyond physical violence only: “Domestic violence includes physical violence, threatening or intimidating behavior and any other form of abuse which, directly or indirectly, may give rise to the risk of harm.”.
Lord Rodger agreed, observing that to exclude psychological harm from the scope of “violence” within section 177 would be to downplay its serious nature.
Yemshaw v Hounslow London BC overruled the judgement made in Royal Borough of Kensington and Chelsea v Danesh. The case of Danesh seen the law requiring some sort of physical contact for there to be an incident of Domestic Violence. Neuberger LJ accepted the council’s argument that ‘In section 198 ‘violence’ means physical violence, and the word ‘violence’ on its own does not include threats of violence or acts or gestures, which lead someone to fear physical violence’.
Causes of Domestic Violence:
There are three categories of explanations of the causes of domestic violence. These are Psychopathological explanations, theories about women in society and the family relationship.
The first explanation, the psychopathological explanation, views the problem of domestic violence as flowing from the psychological make-up of the abuser. This explanation believes perpetrators of domestic abuse have underdeveloped personalities and are unable to control their anger. This explanation has been criticized on the ground that pathology cannot be the only explanation for domestic violence. Academics believe it is wrong to blame a persons personality on their abusive behavior because abusers are able to control their tempers when they are outside the home.
The second explanation of the causes of domestic violence is theories about women in society. The underlying basis of the theories focus on the notion of patriarchy and dominance by men in society. Evidence shows that violence often occurs when women do not fulfil their traditional roles and men uses violent means to reassert their authority. Elizabeth Schneider concludes:
‘Heterosexual intimate violence is part of a larger system of coercive control and subordination; this system is based on structural gender inequality and has political roots … In the context of intimate violence, the impulse behind feminist legal arguments is to redefine the relationship between the personal and the political, to definitively link violence and gender.’
The laws lack of response to domestic violence has means that women are unable to find suitable ways to escape from domestic abuse.
The third explanation for the causes of domestic violence is the family relationship. This explanation argues that it is the failure of the family relationships that is to blame for partners being abusive to each other. Borowski claims volatile partnerships and poor communication skills are to blame as the causes of domestic violence.
This theory has been criticized for failing to look at other factors surrounding a relationship which could lead to domestic violence. It also fails to explain why it is the man rather than the women who is usually violent. This approach is also heavily criticized as it suggests that both the abuser and the victim are at fault for the abuse occurring.
Domestic Violence has always been a recognized issue in society. However, it was not up until 1970 that attitudes changed, and Domestic Violence was re-discovered as a major social problem.
Domestic Violence was prevalent as early as the twelfth century. Church law established in 1140 stated that ‘women are subject to their men and needed to be corrected through castigation or punishment. The Napoleonic Civil Code 1804 confirmed the men are seen to hold the power in the family and violence was the only grounds for a divorce for a woman if the courts decided that it amounted to attempted murder.
Historically, the law has provided women with no protection against violence in the home. Up until the nineteenth century the legal rule was that a man could legally beat his wife providing he used a stick that was no thicker than his thumb. The law was not concerned about whether a man had beaten his wife, it was only concerned about how severe that beating was.
Domestic Violence was not seen as a problem for the police because the laws that were in place condoned it. The laws concerning domestic abuse made it lawful for a man to beat their wife and placed limitations only on the extent of that beating. However, even if a beating was severe it would not be criminal or punishable, it would only be deemed to be inappropriate.
The police response to Domestic Violence pre-1980 has been criticized for being ‘dismissive and derogatory’ in the way they respond to domestic abuse reports. Berk (1980) believes the criminal justice system shows a ‘covert toleration’ of domestic abuse through their attitudes and policies. He goes as far to say that the police condone rights of men to exercise their authority against women.
Over the past thirty years there has been major changes in the national response and understanding of domestic violence in the United Kingdom. This has been driven by the increase of the response of advocacy and campaigning by the women’s movement and non-governmental organisations providing services to abused women.
In the mid-1980’s the Home Office realised that a change in the way the police deal with domestic violence and rape cases was much needed. The Home Office made their first step towards this change in 1983 when they released their circular. The 1983 circular set out how police officers should conduct their investigations, the timing and conduct of medical examinations, the numbers of officers that should be involved and the importance of having female officers involved.
In 1986 a further Home Office report was issued which concerned the police’s response to Domestic Violence.
The initial rise of domestic violence onto government policy agendas in the 1980s was in part a response to the feminist movement’s articulation of and activism around the issue. Since the 1970s feminists have successfully transformed domestic violence from a private trouble into a public issue with local, national, and international governments debating on the issue frequently. Dobash and Dobash observes:
“In 1971 almost no one had heard of battered women, except of course the legions of women who were being battered and the relatives, friends, ministers, social workers, doctors, and lawyers in whom some of them confided. Many people did not believe that such behaviour actually existed, and even most of those who were aware of it did not think that it affected sufficient numbers of women or was of sufficient severity to warrant side-scale concern.”
When the New Labour party came to power in 1997 in England, they made a commitment in their manifesto to take forward policy development to combat domestic violence. The New Labour parties main focus of policy and legislation on domestic violence was on introducing measures based on prevention, protection and justice and the provision of support for victims of domestic abuse, to be implemented by partnerships of service providers at local and national levels.
To conclude, this chapter has examined the law of domestic violence and analysed the problems the courts have had to deal with when they have been challenged with a domestic abuse case. The fact that no statistics present a true picture of the volume of domestic violence, highlights the fact that victims of domestic violence are frightened to report it.
The home is seen as a private sphere which should not be intruded by the police and authorities. This has made the issue of domestic violence extremely difficult to handle as the home is where the most violence happens. The enactment of the Human Rights Act 1998 has caused further problems for domestic violence cases. The right to a private and family life has restricted people interfering in the family home and therefore keeps domestic violence private.
Over the recent years domestic violence has become a lot more acknowledged and the law has taken a step in the right direction. However, it is still a very long way from adequate and reforms are needed.
In the UK, governments and authorities have been successfully working towards targeting and combatting the crime of domestic violence. One very successful improvement has been by the work of feminists where they have established a nation-wide chain of refuges ad other support services which have subsequently contributed to the expanding women’s voluntary sector of the 21st Century.It is clear that the number of women who are victims of male violence is considerable as so many incidents go unrecorded and research has found that women have probably been assaulted more than thirty times before the police become properly involved.
The next chapter will examine the law of provocation and how it deals with women who suffer from domestic abuse and resort to killing their partner. The chapter after the next will go on to examine the new law of loss of control and how that appeals to battered women who kill.