Sticks and stones…

Domestic violence is now widely understood to encompass more than punches, and to affect both men and women. Since 2013 the cross-government definition of domestic violence encompasses physical, financial, sexual, emotional and psychological abuse and coercive and controlling behaviour. it is this definition which is replicated in the practice directions to the FPR 2010. As noted in the Family Court Practice 2015, coercive control fits quite comfortably within the range of behaviours which can properly be injuncted by a non-molestation order made by the Family Court.

But coercive control has not to date been a criminal offence (save where it is also a breach of a non-molestation order).

Section 76 of the Serious Crime Act 2015 will change that. It has not yet been implemented but is likely to be brought into force in the next few months.

I spoke at a conference on Coercive Control in Bury St Edmunds this week and as a result BBC Radio Suffolk ran a piece about coercive control, asking Marilyn Stowe for comment. I did not hear the radio show but I have read Marilyn’s subsequent blogpost in which she sets out her views, and whilst I agree with some of it (Marilyn usually talks a lot of sense) there are some points I disagree with. You can read it here : Section 76 and the Serious Crime Act on Radio Suffolk.

At the conference I talked about coercive control in the Family Courts. I won’t bore you with what I said, but what I noticed was this : Although most attendees and speakers were female victims or worked with female victims, and as such had experience primarily of domestic violence as it affects women rather than men, all the speakers I saw (I had to leave before the end) acknowledged (rather self-consciously) that abusive behaviour including coercive control could affect men as well as women. One talked about how debate around domestic violence is very polarised – feminist versus men’s rights. And that of course is exactly how it is, and it’s a shame that is so. It does not help anybody. We should be able to talk about the gendered nature of domestic violence without being accused of suggesting it does not affect all genders and sexualities. Debate can become stale and formulaic in this environment, replicating the gendered interactions in an intimate relationship – an abusive relationship on a population size scale, played out in public as we call each other feminazis or father’s rights nutters (or whatever). We shouldn’t have to fit in one or other box to have a voice.

Marilyn’s blog expresses some worries about this new offence of coercive control and how it will work in practice. I have some concerns also, but they are not the same as Marilyn’s. I recognise that coercive control is “a thing” (and a serious one) but as the convoluted crafting of the legislation demonstrates, on the margins there is an element of subjectivity about what it actually is – a punch is a punch but one person’s “regularly being a bit of an arse” is another’s coercive control. But that is not to say we should hold up our hands in despair and do nothing. I worry though that it is an offence which is likely to be very hard to successfully prosecute and that either there will be a low rate of prosecutions or a high rate of failed prosecutions (or both). That is because this offence has several components each of which will need to be proved beyond reasonable doubt. Marilyn says

…good intentions are one thing, effective intervention in the intricacies of human behaviour another. How do you enforce such a law? What corroboration will be judged sufficient to found a prosecution? Will it ultimately boil down to her word against his and therefore a question of which one of the two parties you believe?

Well probably not Marilyn, no. I imagine in most cases in order to secure a prosecution there will need to be some third party or independent evidence of the behaviour in question. The prosecution must satisfy the high standard of proof – that is a significant safeguard for defendants.

Marilyn goes on to say this :

A defence is set out in Section 76 (8). It requires the defendant to demonstrate the behaviour was reasonable. But what if the infringing behaviour was exaggerated or worse, never happened at all? Could it come down to which party is the more skilled actor?

In other words, is the person claiming to be the victim really as innocent as they claim? A seriously- held assumption behind such initiatives is almost always ‘women are the victims, and men are the guilty parties’, but the uncomfortable truth is that I have encountered more than one case in which the woman, skilfully playing the victim for all its worth, turned out to be the aggressor or abuser. Such women are readily believed when they claim that their partner is “very controlling” and the men targeted are left to struggle against an immediate gender prejudice and assumptions of guilt.

I have some difficulties with this. Firstly, the description of the defence is inaccurate. The defence is available only in cases where an alleged victim is caused serious alarm and distress but not where the alleged victim is made repeatedly to fear violence. The defence is available where the defendant is able to produce “prima facie” evidence that s/he believed themselves to be acting in the alleged victim’s best interests, AND the behaviour was in all the circumstances reasonable. It is NOT simply a question of the defence showing the behaviour was reasonable. Furthermore, once the defence have done enough to legitimately raise the defence the burden of proof shifts back to the prosecution to prove the defence does not apply to the criminal standard. This is really important. The defendant may say (to use an example drawn from my professional experience) “well I withheld her prescription drugs because she was addicted to them. I did it for her own good”. Fair enough. Now the defence have to prove that ain’t so. That is likely to be quite tricky. And don’t forget, regardless of the defence, the prosecution still have to prove beyond reasonable doubt that the alleged behaviour took place at all – on multiple occasions.

If, as Marilyn suggests, the infringing behaviour was exaggerated or entirely fabricated (which I acknowledge is not unheard of in Family Court cases) – it is highly unlikely that the prosecution will be able to satisfactorily prove the “substantial adverse effect on [the alleged victim’s] usual day-to-day activities” that is part of the offence in “alarm and distress” cases. There of course is a risk of malicious fabrication, but this is true of many offences – the presumption of innocence and the high standard of proof are the means by which the criminal justice system protects defendants against such scenarios. As with domestic violence or rape cases, if there is a context of Family Court dispute and relationship breakdown that might give some motivation to a false allegation that is something I would expect the defence to explore – and the CPS to bear in mind when making charging decisions.

But that is not all I disagree with. Marilyn complains that the assumption behind this initiative is that women are the victims and men are the guilty parties. From where I’m standing the only one making gender based assumptions is Marilyn, where she criticises women (not men you will note) for playing the victim and claiming they have been overborne by controlling partners. In my experience it cuts both ways – I’ve seen plenty of men and women claiming to be victims of violence or abuse – and a fair few of each gender where I have wondered if they are revelling too much in their status as victim rather too much, and where in taking on the role of victim they are able to control both court process and their “abusive” ex. The variety is infinite. I’ve seen cases where there is “mutual volatility”. I’ve seen cases where men are or claim to be victims of violence from mentally ill or alcoholic women (in my experience this is quite a common trope that is gendered – but that’s anecdotal) – and it is very hard to see whether the mental ill health / alcoholism is a) real and b) whether it is chicken or egg (cause or effect). I’ve seen cases where father’s appear to manipulate their status as a victim of gender prejudice to good effect too. It’s not my role as counsel to judge who is telling the truth (we pass that buck to the judge), although sometimes a hunch is inevitable – but some of these cases are more plausible than others, and some involve two parties who have each obviously experienced their role as one of victim – without being able to see their own abusive role in a mutually destructive relationship. The fact that one partner is abusive does not necessarily mean the other is not. So yes, I agree human relationships involve two agents and they are complicated and messy and difficult to capture in legislation – and I also agree that patterns of abusive behaviour are often gendered. But I don’t think that this legislation is gendered. If potential defendants are at risk of malicious allegations that will be as much a risk for female defendants.

It goes on…

Why would women behave in such a way? Perhaps it goes way back in their relationship. Perhaps their husband left them for somebody else or she fell out with them for some other transgression. A woman in such circumstances, if eaten up with anger or bitterness, may find herself very tempted to try and make life as difficult as possible for her ex, possibly using their children as a weapon and making allegations against him. She may even seriously believe the allegations she makes by the time they come to trial. A lie can be embellished and embroidered whilst the truth is lost in the mists of time.

This all happens. I’ve seen it a hundred times before. But about fifty of those times it was the other way around. Mums and dads use the kids as weapons ALL THE TIME.

I think it is worth saying that in my experience it is jolly hard to get findings of coercive control in the Family Court, even with the lower standard of proof and evidential flexibility of the Family Court. There are no doubt multilayered reasons for that, which I won’t go into here, but it does suggest that concern about the risk to poor maligned innocent husbands by their bitter witchy exes may be rather over-blown.

If a parent wishes to manipulate the system by making false or exaggerated allegations of domestic violence simply in order to secure legal aid (a perverse incentive of the legal aid cuts that I acknowledge) they have little need to put themselves through a criminal trial in order to do so. A non-molestation order will do the job – and the standard of proof is only the balance of probabilities. There is limited evidence to prove the hypothesis that the legal aid cuts have led to a surge in fabrication (stats showing an increase in non-mols merely show that more people are raising their DV – but it doesn’t show that the allegations they raise are necessarily fabricated).

Call me a feminazi if you like (for sure somebody will), but Marilyn does women a disservice in implying that they are the sole or primary perpetrators of abuse by means of malicious allegations – even if she does specifically acknowledge that most people tell the truth. This stereotypical spiteful ex-wife does exist – I’ve represented her, I’ve been on the other side. But the use of this gender stereotype in isolation in order to illustrate the discriminatory nature of a piece of legislation is beyond ironic.

Men and women are equally capable, in my experience, of being utterly vile, selfish and abusive – and they lie and manipulate in equal measure. The different genders may tend to exercise control in different ways – but I prefer to judge individuals on their actual behaviour not their gender. And I prefer to judge this law on the basis of our prejudices but on its performance when in force.

Clare’s Law (Again)

I’ve written before about Clare’s Law. First in the Guardian, and subsequently on Pink Tape. The latter was just as the pilot scheme was being consulted on, in November 2011. So you might think it rather odd, and I might think it rather rude, that the Telegraph would extensively quote my 2011 blog post some two years later when the situation is rather different. Had they asked I would have told them that my views then were my views then and should not be taken as a comment on the success of the pilot or the roll out of the scheme more broadly. But they didn’t ask. That irks a bit.

But it has prompted me to look at what I said then against the information now available – to see if I was right to be a bit skeptical about the potential of Clare’s Law to make a meaningful dent in the domestic violence epidemic.

Looking back, the things I was worried about in 2011 were broadly these:

  • that women* who were told there was nothing to disclose might be lulled into a false sense of security
  • that resources might be overstretched due to demand and proper support for victims or potential victims might not be available
  • that the cost might be disproportionate to the benefit
  • that disclosing information in itself would not make women less vulnerable to patterns of abusive relationships in future
  • that there might be inconsistency of approach as between forces

Since then a couple of important things have happened. Legal aid has gone for private family disputes, except those where there is evidence of dv. Funding for domestic violence organisations and rape crisis centres has been slashed in many areas. And the pilot has been run for a year (in some ares a bit longer) in four areas of the country.

I don’t know, but I think it’s safe to assume, that the four pilot areas were areas where there was the will and interest to make this work (or at any rate where someone near the top was keen on the idea). Certainly this is true of Wiltshire, where the ACPO lead on DV Brian Moore hails from – and Clare’s Law is his baby. Wiltshire were doing Clare’s Law informally before the pilot even began.

Six months into the pilot this article appeared in the Graun. I have to say I find rather concerning the remarks about how “Until six months ago, women in Ellen’s position have had to rely on their own judgement.” Don’t we need to make their judgment better rather than making them dependent on this scheme? Undoubtedly the woman in the article was assisted in making a good decision about a specific relationship. But she was a victim of more than one violent relationship. The partner in question had already been violent (Just Like Clare Woods as it happens). For someone making good judgments one incident is quite enough information to base a decision on. Safer in the short term perhaps…

However the scheme has been in its own terms, I still think that educating women about how to spot the signs of an abuser is a better investment of money than disclosing information about a specific perpetrator (teach a woman to fish etc).

So, what does the pilot report tell us? Irritatingly, you will not find it linked to by any of the news reports that cover this story – why they think it is informative to link to a 2 year old blog post rather than the actual core document I don’t know but here it is. You’re grown ups. I think you can manage it.

Well, on the value for money point it tells us that each request costs on average £680 to process (extrapolating from the figures this cost about £300k over the pilot period (this cost from only 386 applications in the whole pilot period). I don’t know the figures but I wonder how this compares to the cost of the Freedom Programme or how many support workers could have been funded instead.

Another point raised in the pilot report is the danger that risk to applicants might in fact be raised as a consequence of the disclosure, particularly following a judgment handed down in the course of the pilot which raises the prospect of the police having to consult with perpetrators prior to making a disclosure. That is dealt with in a sentence or two but it seems to me a pretty big issue (and one I haven’t had time to really look at properly today).

Only one application was made by a man in the course of the pilot. I suspect this arises from a combination of differences in need and awareness, most probably predominantly the latter.

The majority of applications were right to know applications rather than right to ask applications – that is to say applications made by agencies who felt an individual needed to be given information for their own safety rather than for individuals seeking out information themselves. There were 380 applications, of which an average of 29% resulted in disclosures, i.e. only 111 individuals have benefitted. I think that is pretty paltry, and it is notable that a disproportionately high number of disclosures were made in the Manchester pilot area (61%). The disclosure rates in the other three pilot areas they are closer to 20% on average. This not only confirms my earlier concern about inconsistency of approach – it also raises a question about the cost-benefit of a scheme of this sort.

Of the 270 odd to whom no disclosure was made, it is apparent that at least some were cases where applications were prompted by hearsay evidence of domestic abuse i.e. gossip, but where there was no police intelligence to back it up. Those who work in this field are well aware of the myriad reasons for not reporting domestic incidents to the police. I still worry that women who feel they’ve checked out their concern, will relax and invest further into a relationship that they might otherwise have been appropriately cautious about. People will readily accept an answer which appears to confirm what they want to be true.

Support services raised concern in the course of the pilot about the potential for risk to be increased in the process of disclosing information to the applicant, and there appears to have been inconsistency in the follow up support offered to applicants (both those who did and did not receive a disclosure). For all the reasons I’ve outlined I would think this is pretty fundamental. Now that there has been a major press splash about the roll out of this scheme (one I might add that has totally failed to dispel the myth this is a system available for women only) awareness and hence uptake is likely to increase. How will already overburdened domestic abuse support services and other statutory agencies manage and absorb this additional burden?

There are three recommendations in the assessment report:

  1. Work with the police to embed routine training on the Domestic Violence Disclosure Scheme for front-line and specialist domestic abuse police officers and staff (to include consistency of approach when disclosing information).
  2. Work with voluntary and community sector to develop a standard package of support that can be given to individuals who applied for a disclosure via the Right to Ask route where there is no information to disclose.
  3. Develop ways to raise awareness of the Domestic Violence Disclosure Scheme locally that balances public safety and local agency resources. 

Unfortunately, the Minister’s statement on the roll out doesn’t tell us much about how (or if) the recommendations contained in the assessment report will be implemented.

So where does this leave my 2011 comments? On the whole I’m pretty unswayed. I’m not saying Clare’s Law (or the Domestic Violence Disclosure Scheme as it is more properly named) is a bad thing. But I do think it brings it’s own risks and I’m not so sure of the benefits when one looks at the bigger picture. I think that it is is policy which illustrates the tendency to oversimplify domestic violence as something that can be solved by information, when in fact it is a far more deep rooted problem that is often interconnected with the emotional and psychological vulnerability of the victims. A strategy to reduce the ill effects of domestic violence must focus on helping individuals to break cycles of behaviour (that is the behaviour of both victim AND perpetrator) rather than simply averting specific incidents.

In the unlikely event that the Telegraph fancy sending me a fee for use of my material (har har) I will donate it to Survive.

*edit : I’ve used “women” all the way through this post to refer to both men and women (as I often do for ease on this blog) – I’m mainly but not exclusively talking about women. I’ve already noted that the scheme is open equally to both sexes.