Domestic violence and the criminal law
| Author | Jennifer Youngs |
| DOI | 10.1177/0022018314566746 |
| Published date | 01 February 2015 |
| Date | 01 February 2015 |
| Subject Matter | Articles |
Article
Domestic violence and the
criminal law: Reconceptualising
reform
Jennifer Youngs
Center for Equal Justice, New Orleans
Abstract
This article is an examination of domestic violence and the criminal law, incorporating pro-
posals for reform. Its analysis of the nature of domestic violence reveals that the government’s
consultation in this area has misunderstood the problem it seeks to address, divorcing coer-
cion and control from physical abuse when in reality it is an integral part of the phenomenon as
a whole. The existing criminal law fails to address this intention to control, as well as to
acknowledge the totality of harm suffered by victims and the pattern-based nature of the
wrong. Having reached this conclusion it then considers whether a specific offence is an
appropriate option for reform and, having concluded that this is the case, puts forward a
proposal for a specific offence of domestic violence, formulated to remedy the three defi-
ciencies it had previously identified.
Keywords
Domestic violence, law reform, coercive control, psychological harm, violence against women
In the summer of 2014 Home Secretary Theresa May launched Strengthening the Law on Domestic
Abuse, asking whether ‘better protection’
1
for victims, specifically the criminalisation of patterns of
coercion and control, was required. Whilst this marked an important step forward in public discourse,
its divorcing of coercive behaviours from other types of abuse continued to reflect a fundamental mis-
understanding of the phenomenon.
Domestic violence is a wrong qualitatively different from any other. Once its unique character is
established, analysis reveals that the current law, in relation to both physical and psychological abuse,
does not address the totality of harm suffered by victims, the sustained nature of the wrong or the intent
of the perpetrator. Reform is required, but to remedy these three deficiencies requires a specific offence
of which coercive control is a necessary component, not an aggravating feature or separate crime.
Corresponding author:
Jennifer Youngs, 23 Melrose Close, Lowestoft, Suffolk NR32 4QJ, UK.
E-mail: jyoungs148@gmail.com
1. Home Office, Strengthening the Law on Domestic Abuse: A Consultation (Home Office: London, 2014) 11.
The Journal of Criminal Law
2015, Vol. 79(1) 55–70
ªThe Author(s) 2014
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DOI: 10.1177/0022018314566746
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Defining ‘domestic violence’
The scope of domesticity
The government definition, adopted for the purposes of the consultation, is broad, encompassing the
actions of ‘intimate partners or family members’.
2
Protections offered by the civil law are similarly
extended to the wide category of ‘associated persons’.
3
Reece argues that such definitions endanger ‘the specificity of the category of domestic violence’: ‘if
domestic violence occurs everywhere then domestic violence occurs nowhere’.
4
She rejects their empiri-
cal, principled and ideological basis, and would restrict enhanced civil law protections to current, and
former, spouses and cohabitants.
5
Exclusion of other associated persons would not, however, leave them
without legal redress in the laws of tort and property.
6
In the same way, if a restricted definition were
adopted in the context of criminal law, existing offences would continue to apply to those relationships
falling outside its scope. If violence within certain relationships is qualitatively different from that com-
mitted outside them, then application of that same law would be inappropriate.
The relevance of patriarchy. Reece further notes that ‘despite its gender neutral terms, domestic violence
law is rightly designed to protect women’,
7
identifying four features which provided motivation for this
legislation: isolation, controlled emotions, barriers to leaving the relationship and financial dependence.
8
Associated persons, she concludes, are no more likely than non-associated persons to exhibit these fea-
tures, and are far less likely than wives and female heterosexual cohabitants to do so.
9
The Crime Survey of England and Wales indicates that partner abuse (non-sexual) is the intimate vio-
lence suffered most frequently, but that this is the case for both men and women.
10
In an attempt to ratio-
nalise this discrepancy between theory and statistics academics have argued that there are in fact various
phenomena falling under the broad heading of ‘domestic violence’.
Johnson labels these patriarchal terrorism and common couple violence,
11
defining the former as:
terroristic control of wives by their husbands that involves the systematic use of not only violence, but
economic subordination, threats, isolation and other control tactics.
12
Its scope is not, however, limited to marital relationships, and it may also occur within lesbian rela-
tionships.
13
He refuses, however, to adopt gender-neutral terms, this pattern of violence being ‘rooted in
the basically patriarchal ideas of male ownership of their female partners’.
14
He attributes the increased
2. Home Office: Circular 003/2013 (2013).
3. Family Law Act 1996, s. 62(3).
4. H. Reece, ‘The End of Domestic Violence’ (2006) 69(5) MLR 770 at 791.
5. Ibid. at 779, including same-sex as well as heterosexual relationships within this category.
6. Ibid. at 773.
7. Ibid. at 780.
8. Ibid. at 782.
9. Ibid. at 787.
10. 23.8%women and 11%men. Office for National Statistics, Crime Statistics, Focus on Violent Crime and Sexual Offences,
2012/13—Chapter 4: Intimate Personal Violence and Partner Abuse (ONS: London, 2014) 4.
11. M. Johnson, ‘Patriarchal Terrorism and Common Couple Violence: Two Forms of Violence Against Women’ (1995) 57
Journal of Marriage and the Family 283. See also R. Pain and Scottish Women’s Aid, Everyday Terrorism: How Fear Works
in Domestic Abuse (Durham University: Durham, 2012) 6.
12. Ibid. at 284.
13. Ibid. at 284, acknowledging C.M. Renzetti, Violent Betrayal: Partner Abuse in Lesbian Relationships (Sage: Newbury Park,
CA, 1992).
14. Ibid. at 284.
56 The Journal of Criminal Law 79(1)
56
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