Abstract
Domestic violence frequently manifests as a systematic pattern of coercive and controlling behaviour aimed at disempowering the victim. Gendered expectations are often exploited by the perpetrator to achieve this, and thus broader social and cultural conditions of gender inequality are implicated in much of the commission of domestic violence and abuse. Despite this, the legal system continues to take a gender-neutral approach, with a focus on serious physical violence as evidence of abuse. This creates a ‘hierarchy of harm’ where non-physical aspects of domestic violence are considered less serious and less in need of legal intervention. Charlotte Bishop concludes that the law would be a more effective tool once domestic violence is conceptualised as a gendered crime by the legal system, with a recognition of the deprivation of autonomy as a central harm.
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Notes
- 1.
According to the Office for National Statistics (2014) in 2012/13, a total of 7.1 % of women and 4.4 % of men reported having experienced domestic abuse in the last year, equivalent to an estimated 1.2 million female victims of domestic abuse and 700,000 male victims.
- 2.
The Conflict Tactic Scale is a self-completion scoring method used to assess levels of physical violence and conflict in a domestic setting. Created by Murray Straus in 1979.
- 3.
Members of the senior judiciary have stated that it is ‘axiomatic that the ideal environment for the upbringing of a child [is] the home of loving, caring and sensible parents: the mother and father’ and ‘undesirable’ for a child to ‘learn or understand at any age the nature of [their] mother’s [lesbian] relationship’ (C v C (Custody of Child) [1991] FCR 254).
- 4.
See, for example, Re H (A Child) (Contact: Domestic Violence) [2006] 1 FCR 102.
- 5.
See for example R v Smith (Morgan) [2001] 1 AC 146 and Attorney General for Jersey v Holley [2006] UKPC 23.
- 6.
See Bonser v UK Coal Mining Ltd. [2003] EWCA Civ 1296.
- 7.
R v Jones; R v Campbell; R v Smith; R v Nicholas, R v Blackwood and R v Muir (1986) 83 Cr App R 375 and R v Aitken; R v Bennett and R v Barson [1992] 1 WLR 1006.
- 8.
The offences consist of assault occasioning actual bodily harm, malicious wounding and grievous bodily harm under sections 18, 20 and 47 of the Offences Against the Person Act 1861.
- 9.
Within the legal arena, ‘psychiatric injury’ means non-physical injury arising from nervous shock or a mental condition that is found with the DSM (Diagnostic and Statistical Manual of Mental Disorders).
- 10.
R v Dhaliwal [2006] 2 Cr App R 24.
- 11.
Research cited by Refuge indicates that almost 30 women attempt suicide every day, and three women a week succeed in taking their own lives as a result of experiencing domestic violence. See www.refuge.org.uk/what-we-do/campaigns/takinglives/
- 12.
See G v G (Occupation Order: Conduct) [2000] WL 416.
- 13.
Yemshaw v London Borough of Hounslow [2011] UKSC 3.
- 14.
Lord Brown allowed the appeal despite his ‘very real doubts’ (para 60) because he did not ‘feel sufficiently strongly as to the proper outcome of the appeal to carry these doubts to the point of dissent’.
References
Anderson, K. (2009). Gendering coercive control. Violence Against Women, 15(12), 1444–1457.
Bettinson, V., & Bishop, C. (2015). Is the creation of a discrete offence of coercive control necessary to combat domestic violence? Northern Ireland Legal Quarterly, 66(2), 179–197.
Bibbings, L. (2000). Boys will be boys: Masculinity and offences against the person. In D. Nicolson & L. Bibbings (Eds.), Feminist perspectives on criminal law. London: Cavendish Publishing.
Blacklaws, C. (2014). The impact of the LASPO changes to date in private family law and mediation. Family Law, 44, 626–628.
Brownridge, D. A. (2009). Violence against women: Vulnerable populations. London: Routledge.
Burton, M. (2010). Commentary on R v Dhaliwal. In R. Hunter, C. McGlynn, & E. Rackley (Eds.), Feminist judgments: From theory to practice. Oxford: Hart Publishing.
Campbell, B. (2008). Boys will be boys. In K. Evans & J. Jamieson (Eds.), Gender and crime a reader. Maidenhead: Open University Press.
Chung, D. (2005). Violence, control, romance and gender equality: Young women and heterosexual relationships. Women’s Studies International Forum, 28, 445–455.
(The) Civil Legal Aid (Procedure) Regulations 2012 3098. Retrieved October 13, 2015, from http://www.legislation.gov.uk/uksi/2012/3098/contents/made
Connell, R. W. (1995). Masculinities. Berkeley: University of California Press.
Dobash, R. P., & Dobash, R. E. (2004). Women’s violence to men in intimate relationships: Working on a puzzle. British Journal of Criminology, 44(3), 324–349.
Domestic Violence Victims of Crime Act 2004 c28. Retrieved October 12, 2015, from http://www.legislation.gov.uk/ukpga/2004/28/contents
Dutton, M. (1993). Understanding women’s responses to domestic violence: A redefinition of battered woman syndrome. Hofstra Law Review, 21(4), 1191–1242.
Dutton, M. A., & Goodman, L. A. (2005). Coercion in intimate partner violence: Toward a new conceptualization. Sex Roles, 52, 743–744.
Elvin, J. (2010). The continuing use of problematic sexual stereotypes in judicial decision-making. Feminist Legal Studies, 18(3), 275–297.
Family Law Act 1996 c 27. Retrieved October 29, 2015, from http://www.legislation.gov.uk/ukpga/1996/27/contents
Fischer, K., Vidmar, N., & Ellis, R. (1992). The culture of battering and the roles of mediation in domestic violence cases. SMU Law Review, 46, 2117–2174.
Hanna, C. (2009). The paradox of progress: Translating E. Stark’s coercive control into legal doctrine for abused women. Violence Against Women, 15(12), 1458–1476.
Hester, M. (2006). Making it through the criminal justice system: Attrition and domestic violence. Social Policy and Society, 5(1), 79–90.
Home Office. (2013). Home Office Circular 003/2013: New government domestic violence and abuse definition. Retrieved October 13, 2015, from https://www.gov.uk/government/publications/new-government-domestic-violence-and-abuse-definition
Hunter, R. (2014). Exploring the “LASPO Gap”. Family Law, 44 (5) 660–663.
Judicial Studies Board. (2013). Equal treatment bench book. London: Judicial Studies Board.
Kelly, J. B., & Johnson, M. P. (2008). Differentiation among types of intimate partner violence: Research update and implications for interventions. Family Court Review, 46(3), 476–499.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 c10. Retrieved October 13, 2015, from http://www.legislation.gov.uk/ukpga/2012/10/contents/enacted
McCandless, J., & Sheldon, S. (2010). “No Father Required”? The welfare assessment in the Human Fertilisation and Embryology Act 2008. Feminist Legal Studies, 18(3), 201–225.
Mills, L. (2003). Insult to Injury: Rethinking our Responses to Intimate Abuse. Princeton and Oxford: Princeton University Press.
Munro, V., & Shah, S. (2010). R v Dhaliwal Judgment. In R. Hunter, C. McGlynn, & E. Rackley (Eds.), Feminist judgments: From theory to practice. Oxford: Hart.
Offences Against the Person Act 1861 c100. Retrieved October 12, 2015, from http://www.legislation.gov.uk/ukpga/Vict/24-25/100/contents
Protection of Harassment Act 1997 c40. Retrieved October 13, 2015, from http://www.legislation.gov.uk/ukpga/1997/40/contents
Reece, H. (2006). The End of Domestic Violence. Modern Law Review (5) 770–791.
Rights of Women. (2013). Evidencing domestic violence: A barrier to family law legal aid. Retrieved October 25, 2015, from http://rightsofwomen.org.uk/wp-content/uploads/2014/10/Evidencing-DV-a-barrier-2013.pdf
Robinson, A. (2014). Pie in the sky? The use of criminal justice policies and practices for intimate partner violence. In H. Johnson, B. S. Fisher, & V. Jaquier (Eds.), Critical issues on violence against women: International perspectives and promising strategies. London: Routledge.
Serious Crime Act 2015 C9. Retrieved October 12, 2015, from http://www.legislation.gov.uk/ukpga/2015/9/contents/enacted
Smart, C. (1995). Law, crime and sexuality: Essays in feminism. London: SAGE.
Stark, E. (2007). Coercive control: How men entrap women in personal life. Oxford: Oxford University Press.
Stark, E. (2009). Rethinking coercive control. Violence Against Women, 16(12), 1509–1525.
Straus, A. (1979). Measuring intrafamily conflict and violence: The Conflict Tactics (CT) Scales. Journal of Marriage and Family, 41(1), 75–88.
Straus, A., Hamby, S., Boney-McCoy, S., & Sugarman, D. (1996). The revised Conflict Tactic Scales (CTS2): Development and preliminary psychometric data. Journal of Family Issues, 17(3), 283–316.
Tadros, V. (2005). The distinctiveness of domestic abuse: A freedom-based account. Louisiana Law Review, 65, 989–1014.
Walker, L. (1979). The battered woman. New York: Harper and Row.
Walker, L. (2009). The battered woman syndrome (3rd ed.). New York: Springer Publishing Company.
Walklate, S. (2004). Gender crime and justice (2nd ed.). Cullompton: Willan Publishing.
Williamson, E. (2010). Living in the world of the domestic violence perpetrator: Negotiating the unreality of coercive control. Violence Against Women, 16(12), 1412–1423.
Worrall, A. (2008). Twisted sister, ladette and the new penology; the social construction of “violent girls”. In K. Evans & J. Jamieson (Eds.), Gender and crime a reader. Maidenhead: Open University Press.
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Bishop, C. (2016). Domestic Violence: The Limitations of a Legal Response. In: Hilder, S., Bettinson, V. (eds) Domestic Violence. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-52452-2_4
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