The Duplicity of Protection—Prosecuting Frightened Victims: An Act of Gender-Based Violence
| Date | 01 February 2012 |
| Author | Susan Edwards |
| Published date | 01 February 2012 |
| DOI | 10.1350/jcla.2012.76.1.749 |
| Subject Matter | Article |
The Duplicity of Protection—
Prosecuting Frightened Victims:
An Act of Gender-based Violence
Susan Edwards*
Abstract This article considers the recent developments in the prosecu-
tion of perpetrators and victims of domestic violence, and focuses on
domestic and European Court of Human Rights’ jurisdiction. Particular
consideration is given to hearsay and bad character provisions (Criminal
Justice Act 2003) in bolstering the prosecution of perpetrators. The article
examines the application by judges of the ‘interests of justice’ and ‘fair-
ness’ tests in the admission of such evidence. The recent prosecution of
victims of domestic violence for contempt of court and perverting the
course of justice because of their failure to give evidence is a serious breach
of the state’s obligation to protect, is vindictive and oppressive and, as
such, perpetuates gender-based violence.
Keywords Domestic violence; Contempt; Gender-based violence;
Hearsay; Bad character
Domestic violence as gender-based violence
In Opuz vTurkey,1where a domestic violence perpetrator went on to kill
his wife’s mother, the European Court of Human Rights (ECtHR) held in
conjunction with Article 2 (right to life), Article 3 (degrading and
inhumane treatment) and Article 6 (right to a fair trial) that this was an
act of ‘gender-based violence’ because of the state’s failure to protect and
as such Turkey was in breach of Article 14 (there should be no discrim-
ination in the application of human rights). This ruling marks a decisive
moment in conceptualising domestic violence protection within the
Convention, since it recognises, for the first time, the failure of public
authorities to prosecute domestic violence perpetrators and ultimately
protect victims of domestic violence as an act of gender-based violence.
As Hakimi noted, ‘the Opuz court determined that the criminal law in
Turkey was insufficient to protect women from gender-based violence.
. . . Turkey’s legislative scheme actually impeded the state from protect-
ing women because it required victims themselves to pursue criminal
complaints. Many women were intimidated into dropping or not filing a
complaint, so abuses regularly went unaddressed. In such cases, reform-
ing the criminal law may be an important step towards addressing the
* Professor of Law, University of Buckingham; Door Tenant, 1 Gray’s Inn Square
Chambers, Gray’s Inn, London; MEWI; e-mail: susan.edwards@buckingham.ac.uk.
1Opuz vTurkey (2010) 50 EHRR 28; 27 BHRC 159.
29The Journal of Criminal Law (2012) 76 JCL 29–52
doi:10.1350/jcla.2012.76.1.749
causes of gender-based violence’.2In the light of the recent prosecution
of the defendant in R vA for contempt of court for refusing to give
evidence against a domestic violence perpetrator because of fear,3British
courts and prosecutors would do well to review their practices and
procedures with regard to compliance with the European Convention
on Human Rights (ECHR) in the protection of victims of domestic
violence.
Historically, the prosecution of domestic violence perpetrators has
been undermined by effete law, and characterised by a laissez-faire
attitude to witnesses who are reluctant to support a prosecution because
of fear of further violence. Lord Salmon, in speaking of the frightened
and reluctant battered woman said, ‘But if she does not want to avail
herself of this protection, there is, in my view, no ground for holding
that the common law forces it upon her’.4Such assertions strongly
demonstrate the capacity of law in its selective myopia to be a tacit party
to law’s own violence against women. In addition, masculinist inflec-
tions embedded in the interpretability of the norms of ‘interests of
justice’ and ‘fairness’, both of which determine the admissibility of
evidence, have been inimical to the interests of women as victims.
Several measures have been introduced over the past 30 years with a
view to protect the domestic violence victim and to ensure that the
prosecution process is not undermined. In addition, the recognition by
the courts of human rights claims, especially, although not exclusively,
Articles 2 and 3, reflects the increasing awareness of the seriousness and
potential risk that domestic violence poses its victims. The law of evi-
dence has made wives compellable witnesses against husbands5(Police
and Criminal Evidence Act 1984 (PACE), s. 80(2)), provided special
measures and support for victims (Youth Justice and Criminal Evidence
Act 1999 (YJCEA 1999), s. 17), and extended hearsay and bad character
provisions (Criminal Justice Act 2003 (CJA 2003)). However, more
recently, these evidence and rights efforts have been undermined by a
countervailing and pernicious force where victims of domestic violence,
who through fear retract statements and/or refuse to give evidence,
have been proceeded against for contempt and perverting the course of
justice. The rationale for this perverse development lies with a lack of
2 M. Hakimi, ‘State Bystander Responsibility’ (2010) 21(2) Eur J Int Law 341. See
also Yildirim vAustria (V) CEDAW 6/2005 (6 August 2007), where a wife who
made repeated applications for restraining orders to protect her from a husband’s
repeated threats to kill was ultimately killed by him. The Committee on the
Elimination of Discrimination against Women found a breach of Articles 2 and 3
of the UN Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW). Also Goekce vAustria, UN Doc CEDAW/C/39/D/5/2005 (2007)
para. 12.1.4; the court held that Austria had not done enough to protect where a
husband killed a wife when restraining orders were in place, but there was a
failure to adequately protect. See also A. Byrnes and E. Bath, ‘Violence against
Women, the Obligation of Due Diligence, and the Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination against Women—
Recent Developments’(2008) 8(3) Human Rights Law Review 517–33.
3R vA [2010] EWCA Crim 2913.
4Hoskyn v Metropolitan Police Commissioner [1979] AC 474 at 495.
5 See J. Brabyn, ‘A Criminal Defendant’s Spouse as a Prosecution Witness’ [2011]
Crim LR 613.
The Journal of Criminal Law
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