Domestic abuse in England & Wales: a historical legal gap bridged by Section 76 of the Serious Crime Act 2015?

Written by: Hannah Handzar
Edited by: Charlie Jones

Introduction

Domestic abuse is not a new social phenomenon, and its victims have seen countless changes in the way society and the law treat their protection throughout history. Until 2015, the law of England and Wales did not recognise the complex nature of domestic abuse, and in particular, our evolved understanding of it as both systematic physical and psychological abuse. The introduction of the separate offence of engaging in ‘controlling or coercive behaviour in an intimate or family relationship’ in Section 76 of the Serious Crime Act 2015 was an attempt in England and Wales to bridge an existing legal gap in recognising the systematic and reiterated way that domestic abuse can take form, and in particular, the causation of fear, alarm or distress.

This article will begin by analysing the social and legal understanding of the nature of domestic abuse, as well as its criminalisation historically in England and Wales to illustrate the significance of its configuration and legal regulation. This article will then discuss the changes implemented by Section 76 of the Serious Crime Act 2015 as well as the effects in practice of the introduction of this 2015 Act, before finally considering how its current legal regulation might continue to evolve in future.

The distinct nature of domestic abuse

Criminal law is an area which is often reflective of changes in societal values, both religious and cultural, and its treatment of domestic abuse has been no different. Advocates for a change in its criminalisation argue that domestic abuse is distinct and can take many forms, and given its social significance, criminal law ought to reflect these (Tadros, 2005). One aspect of this nature is that it does not consist only of physical violence, this merely being one of the many means for abusers to gain power and control (Emerson and Dobash, 1992), but more often consists of controlling and coercive behaviour, of which the “patterns and dynamics involved in these cases need to be understood in order to provide an appropriate and effective response” (CPS, 2023).

Domestic abuse is fundamentally distinct from all other forms of abuse as it represents an ongoing strategy of intimidation and isolation, whereby isolation eventually amounts to control over all aspects of a victim’s life (Kuennen, 2007). This component of isolation in intimate relationships is said to lead a victim to blame themselves for the abuse whilst simultaneously overestimating the power that the abuser has over them (Tadros, 2005). Given this, equating it solely with only a single form of violence or fear arguably does not take into account this diminished autonomy. Rather, it distorts a victim’s view of their own experiences and perhaps also whether they feel as though they are in the position that they should seek help.

The legislature described the introduction of section 76 of the Serious Crime Act 2015 as an effort to close the gap in the law around patterns of controlling or coercive behaviour (Home Office, 2015). This piece of legislation refers to behaviour that takes place ‘repeatedly or continuously’ and therefore provides for this distinct nature of control. The theory of ‘coercive control’ on which the section is based, includes a range of methods used to hurt, humiliate, intimidate, exploit, isolate, and dominate victims (Stark, 2007). This illustrates the vast range of suffering, both physical and also psychological, that can constitute a form of domestic abuse, and which the criminal law did not adequately account for before the 2015 Act (Tuerkheimer, 2004).

Domestic Violence in Early Modern and Victorian England & its criminalisation

The historical study of domestic abuse is vital to help us distinguish its legal and social understanding from our own today. Early Modern England saw the family unit as a topic of public debate (Dwyer, 1994), including William Blackstone’s commentary on the ‘rule of thumb’, in which British Common Law recognised a husband’s right to beat his wife using sticks no thicker than his thumb (Dipty, 2009). Blackstone stated that given that ‘the husband is to answer for his wife’s misbehaviour, the law thought it reasonable to entrust him with this power of restraining her, by domestic chastisement’, that is to say, a ‘lawful correction’ on his wife without inflicting serious physical harm (Blackstone, 1765).

Under this British Common Law, ‘the very being or legal existence of the woman is suspended during the marriage’, forming a part of a ‘single legal entity’, justifying this husband’s right regarding his wife. The very same idea of the husband’s right to discipline and the ‘rule of thumb’ was officially recognised in the American case of Calvin Bradley v. The State of Mississippi (1834). After having been reiterated in a number of other cases, in 1871, and for the first time in American jurisprudence (Rybicka Law Office PLLC, 2017), the Supreme Court of Alabama in Fulgham v. State (1871) found that the “husband is therefore not justified or allowed by law to use such a weapon, or any other, for her moderate correction. The wife is not to be considered as the husband’s slave”.

Despite a legal shift also seen in Victorian England, domestic violence was still not criminalised. Assaults were often within the letter of the law of the 1861 Offences Against the Person Act, however, judges were very reluctant to equate assault to a husband’s ‘chastisement’ of his wife (Summers & Hoffman, 2002). In 1878, the Matrimonial Causes Act was passed, and ‘cruelty’ was legally a ground for separation, whereby ‘Cruelty’ meant that if a husband were convicted of aggravated assault, a Court order might relieve her from cohabiting with her husband.

The 1970s saw the greatest development in the criminalisation of domestic violence, largely the result of its social recognition as a major problem in need of political and social response (Summers & Hoffman, 2002), as evidenced by Women’s Aid’s being set up in 1974. In this decade, three pieces of legislation encouraged this development: the Domestic Violence & Matrimonial Proceedings Act 1976 which gave women the right to remain in the household, the Housing (Homeless Persons) Act 1977 which aided domestic violence victims to obtain re-housing, and the Domestic Proceedings & Magistrates’ Courts Act 1978 which developed the regulation on injunctions to prevent further domestic violence. Despite these vital legislative introductions, a gap continued to exist in the criminalisation of numerous facets of domestic abuse itself.

1. The gap in the law: criminalising the causation of fear, alarm or distress

One such facet of the complex nature of domestic abuse is the causation of fear, alarm or distress, which before the 2015 Act, was under the Protection of Harassment Act 1997. The 1997 Act recognised for the first time the complex and multifaceted nature of patterns of harm as being systematic rather than amounting to singular events (Tolmie, 2018), an atypical intervention from criminal law at the time.

Section 2 of the Protection of the Harassment Act 1997 regulates the basic offence of harassment and section 4 regulates the more serious offence of systematic behaviour that led to a causation of a fear of violence in the victim. The latter was said to represent a distinct offence focussed not on harassment, but on the greater wrong of creating fear of violence (Ormerod, 2011). However, it has arguably not amounted to this. For instance, in R v Curtis (2010), the court did not conclude that six incidents over nine months could amount to a course of conduct of harassment and that this fear is limited to a fear of violence. R v Widdows (2011) further provided that an assumption of abuse would be considered less serious in the context of a long and predominantly affectionate relationship in which both parties have persisted and wanted the relationship to continue.

This approach by English courts in dealing with the previous legal provisions of fear mirrors the often-held assumption that victims who freely remain in long-term relationships of this nature do so as a result of this coercive control. Given the insufficient legal provisions to criminalise the psychological aspects of domestic abuse in fear and control in England and Wales, section 76 of the 2015 Act attempted to bridge this legislative gap by widening the definition of domestic abuse to include repetitive coercive and controlling behaviour between ‘personally connected’ parties. It aimed to protect against a victim’s fear of violence against them or serious alarm or distress that adversely and substantially impacts their daily life. One such type of behaviour associated with this offence of coercion is financial control, in which a victim is financially dependent on an abuser, and thus, obligated to remain with them (Weissman, 2007). Whilst it is not generally unacceptable for a partner to control the couple’s finances (Tolmie, 2018), in this context, it cannot be said to be excluded from amounting to more extensive control.

The police practice in England and Wales

Despite these noted distinctions, criticisms of the enactment of this offence in 2015 have been raised. The same police remain in the position of protection and enforcement of this offence and have the role of intervening when behaviours defined by the offence are perpetuated. An independent report found that, in this context, the police possess a lack of understanding of what domestic abuse could consist of and can sometimes exercise their powers punitively as a consequence (HMIC, 2014). Markedly, the residual tendency to treat domestic abuse as less serious for the prosecutorial decision-making and sentencing than assault on strangers still exists (Tadros, 2005). Thus, despite the legislature’s attempt to bridge the legal gap, it cannot be said that its introduction in 2015 has seen the necessary change in police practices and has arguably not amounted to any more effective protection of victims than the already existing criminal law provisions of fear, alarm or distress.

Proponents of Section 76 argued that its more rigorous approach, with additional resources required in the identification, investigation and subsequent prosecution of this crime would be justified by a drop in repeat offenders (Stark, 2018). However, its effectiveness has been subject to criticism. Notably, there are continued concerns regarding the practical impact of the evidence threshold of at least two occasions in which the victim feared the use of violence against them, or evidence of serious alarm or distress which causes a substantial adverse impact on their day-to-day lives. This provision has unnecessarily increased the difficulties faced by the police and prosecution when deciding on the appropriate charges (Padfield, 2016).

Conclusion

Despite its demonstrable shortcomings, the introduction of a separate offence of ‘controlling and coercive behaviour in an intimate or family relationship’ in Section 76 of the Serious Crime Act 2015 was necessary to further the exercise of victims’ autonomy in a way that existing criminal law provisions did not allow the space for. It demonstrates a clear evolution of the legal understanding of domestic abuse in England and Wales by providing a wider definition of domestic abuse which acknowledges not only the physical and psychological impact on victims but also further provides for the relevance of fear in systematic violence. Whilst it may not have gone far enough, many of the persistent problems in its practical effectiveness stem from police practice and understanding. Ergo, until the practices of England and Wales allow for a stronger response to domestic abuse, its current legal configuration represents a step closer to bridging this legal gap.

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