Domestic violence, research and social policy in Britain
Domestic violence, research and social policy in Britain
Abstract and Keywords
Recent policy and legal developments in Britain, and the election of New Labour in 1997, has led to a more comprehensive policy approach and increased research, particularly on the evaluation of policy and services. In addition, there have been attempts to define and measure violence against women in general and domestic violence in particular. There is a general understanding that domestic violence is not a simple category in itself and that it involves intimate relationships other than marriage and cohabitation. It is not necessarily confined to heterosexual relationships and may include same-sex violence and violence of women towards men. Research shows a high prevalence and incidence of domestic violence, which is still significantly under-reported. Whether physical or sexual violence or serious coercion and psychological violence are considered, such violence and coercion is much more likely to be directed by men against women.
The beginnings of change: a hidden issue becomes visible
Violence against women, and domestic violence in particular, became a public issue in Britain during the last quarter of the 19th century. Influenced by the feminist movement of the time, legal changes gave women the right to protection against the severest forms of assault by their husbands, including the right to apply for legal separation and to keep their own earnings, if separated (Cobbe, 1978; Dobash and Dobash, 1980; Mulvey Roberts and Mizuta, 1994). (It was not until later that married women living with their husbands gained full property rights.) The subject then lapsed from the political agenda until 100 years or so later, and only became a public issue again in the last 30 years of the 20th century.
Despite some changes in opinion reflected in 20th-century case law, attitudes to violent and coercive behaviour by men towards their wives and partners in the second half of the 20th century were still heavily influenced by beliefs about the rights of men in the family and the privacy of the household similar to those in the late 18th century (Dobash and Dobash, 1980, 1992; Pahl, 1985; Hague and Malos, 1993, 1998). The persistence of traditional attitudes towards gender hierarchy in the family, and the newer psychological approaches which located ‘personal’ problems in an individual or family matrix, combined to minimise and obscure violence against women in general, including domestic violence, as a social phenomenon (Dobash and Dobash, 1980, 1992; Hague and Malos, 1993, 1998).
In addition, there was a belief that the postwar welfare state had eradicated poverty, and therefore significantly reduced what were thought to be the major social causes of violent and ‘deviant’ behaviour. Instances of social problems, including violence in society and in the family (including child abuse and domestic violence), were subsumed under the heading of ‘deviance’ by sociologists and criminologists and were normally viewed by social welfare (p.96) agencies as a consequence of pathological individual psychology or of ‘family dysfunction’ (Parton, 1985; Hague and Malos, 1993, 1998).
In Britain, the beginnings of a break with such attitudes came in the 1970s through a combination of processes, the most important of which was the advent of the Women's Liberation Movement. Some key factors here were the growing realisation that equality between the sexes was an ideal which had not been realised, either in the ‘public’ realm of the labour market, the law and politics, or in the ‘private’ sphere of family life and personal relationships. One key change was the questioning of the very division between the public and the private with the assertion that ‘the personal is political’ and the beginnings of an analysis of gendered power relationships as common to both spheres.
The movement against domestic violence, and the particular shape it took in Britain, should be viewed in this context. It also needs to be seen in relation to a number of social and legal developments, among them being changes in the divorce laws; a lessening of stigma in relation to divorce, cohabitation and the birth of children outside marriage; and also developments in social security and the labour market. Together these made it possible for women to survive outside of marriage, even with children.
The development of awareness of the prevalence of domestic violence came from women themselves ‘speaking out’ about their experiences. This ran parallel with the movement against rape, and women survivors revealing sexual abuse by fathers and family members or friends when they were children, which helped to give rise to current awareness about child sexual abuse. Women seeking help to escape from violent relationships, or to put an end to the abuse, triggered the growth of the refuge movement – Women's Aid – and led to the formation of four national Women's Aid federations for England, Wales, Scotland and Northern Ireland (Pizzey, 1974; Pahl, 1985; Rose, 1985; Hague and Malos, 1993, 1998).
Developing alliances, legal and social policy changes, and the beginnings of research
By the later 1970s, alliances had been made between the refuge movement and other campaign and pressure groups, most notably those campaigning against homelessness. This resulted in the recognition in the homelessness legislation of 1977 that women leaving home because of domestic violence were, in law, homeless and, if they had children, were prioritised for the allocation of public, rented housing. Alliances with members of parliament also led to Private Member's Bills introducing a range of civil injunctions against a violent partner, which were not, as before, dependent on marital status and the commencement of divorce proceedings.
The key developments relating to domestic violence against women, therefore, included the growth, from the mid-1970s, of the Women's Aid movement and the growing visibility of the issue of domestic violence, resulting from public (p.97) and media campaigns by the movement (Dobash and Dobash, 1992; Hague et al, 1996).
Research on domestic violence has developed in concert with the growth of the movement against domestic violence and against violence with regard to women in general. It has both influenced and been influenced by the responses of public agencies and public policy towards such violence. I wish now to document the development of the relationship between the emergence of domestic violence as a social issue in Britain and the interlinked development of domestic violence research.
The state of knowledge on the nature and level of domestic violence in Britain
Incidence, prevalence and impact of domestic violence
The character and the strengths and weaknesses of the state of knowledge on domestic violence in Britain reflects both the history and the nature of the relationship between the movement and policy makers at both national and local level. It has also been affected by the nature of opportunities for research funding on such issues and by the lack of a national statistical research centre with the capacity (or commitment) to mount large-scale studies on the incidence and prevalence of violence against women, including domestic violence. These factors help to explain why Britain, which saw the birth of the most recent movement against domestic violence (Dobash and Dobash, 1980, 1992; Coote and Campbell, 1982; Rose, 1985; Hague and Malos, 1993, 1998), has no comprehensive statistical survey of the incidence and/or prevalence either of domestic violence, or violence against women in general1. It appears that Britain has been overtaken in this respect by a number of European countries, where both the movement and the policy response are far less developed. For example, a national survey on women, looking at both labour market issues and violence, has recently taken place in France (ENVEFF, 2001), and in Italy a number of large-scale regional surveys are being conducted (Prato Conference, 2001; see also Hagemann-White, 2001).
This is not to ignore the importance of the investigation into the incidence of domestic assaults in recent British Crime Surveys. However, the British Crime Survey does not take in the full range of domestic violence (including psychological violence and financial coercion) which derives from the still unequal power between men and women both in society and in their intimate relationships. Sylvia Walby, a professor at the University of Leeds, has developed a module based on the Statistics Canada model, incorporating domestic violence in a broader context as well as other forms of violence against women, for inclusion in the British Crime Survey (Statistics Canada, 1993; Walby, 1999; Hague et al, 2001). Unfortunately for the purposes of this volume, information from this survey is not yet available. In addition a useful booklet summarising statistical and other information on interpersonal violence has been published (p.98) by the Economic and Social Research Council Violence Research Programme (Stanko et al, 2002).
There has been no national study of the proportion of women who have experienced violence in relationships over any period of time, be it a limited period (similar to the French survey) or over longer periods. However, there have been a number of localised or small-scale studies taking a broad definition of domestic violence (Dobash and Dobash, 1980; Women's Aid Federation, 1992; Mooney, 1994; Dominy and Radford, 1996; Stanko et al, 1998). These suggest that between one quarter and one third of women experience violent and/or systematically coercive relationships. Other studies of the prevalence of a range of abusive behaviours suggest that violence towards the female partner occurs in between 30–50% of male–female relationships2 (Ball, 1995; Kelly, 1996). In addition, a recent national ‘snapshot’ census of referrals to agencies revealed that a large number of women seek help from agencies despite the known low rate of reporting, indicating the serious nature of the problem and the necessity for action (Stanko, 2002; see also McGibbon et al, 1989).
Currently, however, the British Crime Surveys are the only large-scale statistical study of the subject in Britain. Although they include questions concerning domestic violence and means of measuring physical assault, they do not concern themselves with other common types of coercive and violent behaviour that comprise domestic violence in its fullest sense. According to successive British Crime Surveys, domestic violence – in the form of actual physical assault – was the most rapidly increasing violent crime over a number of years between 1981 and 1993. Recently, rates appear to have decreased, although numbers reported to the 2000 survey were, nevertheless, almost double those reported in 19813. Figures extrapolated from the survey (Mirlees-Black, 1995) suggested that one in ten women who have lived with a male partner experienced physical assault from their partners at some time. About one third of these assaults occur after separation.
The 1996 survey received wide media publicity because it included a self-report questionnaire, which shows an apparently equal incidence of ‘assault’ by men and women who are current or former partners (Mirlees-Black, 1995; Home Office, 1999). However, there was less publicity for the finding that women were twice as likely as men to be injured and to have been assaulted three or more times4. Financial issues often increased the frequency of assault, and it was more commonly used against young women aged 16–24, women without employment, and women with children. Like other research that takes in a wider definition of violence (such as Mooney, 1994) the British Crime Surveys suggest that even physical violence against women in personal relationships is most likely to go unreported. This survey has since been repeated, but the results have not yet been published at the time of writing.
Violence, then, is not just physical assault, although that can be extremely serious and, of course, includes murder – 40–45% of homicides against women are by a husband, partner or former partner, compared with 7% of homicides against men (Home Office, Annual). However it is important to realise that (p.99) violence may involve many other forms of coercive behaviour, including sexual abuse or rape, and can include psychological abuse of various kinds, including virtual imprisonment and physical deprivation because of abuse of financial power. Children often witness abuse and can be involved in it, either as the targets of abuse or being forced to participate in various ways in the abuse of their mother (Malos and Hague, 1993, 1997; Hester et al, 2000; Mullender et al, 2002: forthcoming).
It is also important to understand that the persistent nature of such abuse cannot always be escaped by leaving the violent partner. Indeed, leaving may exacerbate the problem unless there are a variety of supporting interventions in place. When women try to end the relationship, this often leads to homelessness and isolation because personal ties and networks are also broken. Ending the relationship can also be very dangerous, since women are more likely to be murdered after separation (Hester et al, 2000).
Domestic violence: problems of naming and defining
Partly because of the way the problem of violence against women within marital and intimate relationships was hidden within the ‘private world’ of the family, a number of different terms for domestic violence have been used that vary both within and between countries. In the British legal and policy sphere it was called ‘domestic violence’ to the extent that it was recognised at all. In the US, it was subsumed under ‘family violence’ and both terms are still used in both countries. When it was rediscovered as a separate issue in Britain, the women were known as ‘battered wives’ or ‘battered women’ by analogy with the then newly coined ‘battered baby syndrome’ (see, for example, Pizzey, 1974). Many women who experienced such violence found the term ‘battered women’ both demeaning and misleading and it is no longer commonly used in Britain, though it is still in use in the US. Other terms used are ‘domestic abuse’, ‘women abuse’ or ‘violence towards women from known men’. All of these terms are problematic in relation to defining the experience and forming a sufficiently clear descriptive basis for action against the complex set of practices it encompasses5.
However, in a policy and legal context in Britain, ‘domestic violence’ is the term most often used and given force in law. It has also been redefined in practice so that some of the problems of definition meaning have been reduced. For example, it is widely recognised that ‘domestic violence’ is most usually directed by men towards women in a close personal relationship (Dobash and Dobash, 1980, 1992; Mooney, 1994; Home Office, 1995; Women's Unit, 1999). It is therefore the term used here, and, where necessary, is supplemented by other clarifying terms.
There are also many problems with the definition of ‘violence’. However, within this chapter, ‘violence’ means any abusive or violent behaviour – whether physical or non-physical – which is used by one person to control or dominate another with whom they have, or have had, a close personal relationship (Hester (p.100) et al, 2000). This chapter also focuses mainly on violence directed by men at their female partners.
Moving from the margins: the developing links between activism, research and policy
Despite the absence of large-scale statistical studies of the incidence and prevalence of domestic violence, there is a significant and growing body of research on the subject in Britain. This is strongest and most developed in a wide range of critical research on policy and practice.
The 1970s to the 1980s: research on domestic violence in Britain
The development of the refuge movement and the need to demonstrate the serious nature of domestic violence led to the beginnings of research. Initially, this was on a very small scale and usually undertaken by Women's Aid activists and/or by campaigners challenging violence against women in general, in order to establish the existence and nature of domestic violence. Much of the information was drawn from the accounts of women who had experienced domestic violence, thereby making them “heroes of their own lives” (Gordon, 1989). It was often used to demonstrate to local statutory agencies or to the government, the need for safe accommodation (refuges and resettlement into permanent housing) and for protection by police, as well as civil and criminal law.
Very little of this early research was published formally. However, one important exception was Dobash and Dobash's Violence against wives (1980), first published in the US in 1978 and two years later in Britain. This highly influential book developed a historical overview of domestic violence in Britain and an explanation based on historical inequalities between men and women in marriage and in society. However, it also contained a kernel of research into reported domestic violence in police stations in Glasgow in the late 1970s and an empirical study of the circumstances which triggered violent episodes (see Cavanagh, in Pahl, 1985). This research contained the first published figures on the incidence of reported domestic violence in Britain. It found that 25% of reported crime in sample police stations was in fact incidents of domestic violence. This figure was shocking at the time but has since been replicated. Indeed, higher incident rates have been found elsewhere: for example, as high as 50% in a more recent study (Cretney and Davis, 1996). Of course, such findings are subject to change because of local variation and are possibly affected by the growth of reporting in more recent years, as a result of changing policing practice. However, this figure of 25% has acted as a baseline for incidence statistics and for campaigning for action on domestic violence. In fact, it is still widely cited, including government sources (Women's Unit, 1999). Another significant early study on agency responses to domestic violence – this time, largely in the context of divorce (see Borkowski et al, 1983) – showed high rates of divorce attributable to domestic violence in its wider sense.
(p.101) Civil law remedies and social legislation through Private Member's Bills
Important legislation was passed in the mid-1970s via Private Member's Bills as a result of lobbying and alliance building by Women's Aid, rather than as a result of government initiatives.
Civil protection laws
In cases of domestic violence, the 1976 Domestic Violence and Matrimonial Causes Act and the 1978 Domestic Violence and Magistrates Courts Act introduced non-molestation orders and orders to oust or exclude the perpetrator from the family home for protection. However, judicial discretion limited their scope, while case law sometimes moved in contradictory directions. National Judges Directions, which are sent to all judges in the court system, limited the application of powers of arrest to cases where there had been severe physical abuse. Exclusion and ousting orders were limited to three months in the first instance and required regular applications for renewal rather than being permitted to operate for the time required for a property settlement in divorce or separation proceedings. The application of the law where the woman was not married to her attacker had to be confirmed on appeal because of concerns over the property rights of the men involved (an issue which was raised again when the law on civil protection was strengthened in 1996). Enforcement was often ineffective where there were no powers of arrest involved, and often when there were because of failure to ensure that police were informed of such injunctions (Barron, 1989; Law Commission, 1992; Hague and Malos,1993).
The 1977 Housing (Homeless Persons) Act
In view of the problems arising with protection under the criminal law and through civil legislation, emergency and temporary accommodation was – and still remains – of vital importance for the safety of many of the women and children involved. From the start, the accommodation was provided almost exclusively by voluntary, community-based Women's Aid refuges that had little or no secure funding. Therefore, Women's Aid acted in conjunction with housing campaign groups in securing the inclusion of domestic violence as a reason to be considered homeless in the 1977 Housing (Homeless Persons) Act, also initially a Private Member's Bill (now replaced by the 1996 Housing Act and the 2002 Homelessness Act).
The homelessness legislation was heavily dependent for its implementation on local discretion, and was sometimes applied ungenerously (Binney et al, 1981; Malos and Hague, 1993). Nevertheless, as we shall see later in this chapter, the limited security it offered was attacked as a ‘perverse incentive’ and a queue jumper's charter in the final period of the Conservative government and (p.102) weakened by the 1996 Housing Act (Malos and Hague, 1993, 1998; Morley, 2000).
Policy and practice oriented research from the early 1980s
The 1980s saw the beginning of more formal research, which was part of a developing critique of service provision and of the reaction of statutory agencies to women experiencing domestic violence and their children. Such studies investigated services, policies, and the application of legislation in a number of important social policy areas, most notably in the beginning: housing and refuge, and policing and the civil and criminal justice systems. An important aspect of this research was that it involved links between activists, academics and sometimes practitioners. This was often because the researchers themselves combined activism and an academic background or occupation, and because feminist analyses were being pioneered within the social sciences and humanities. While this strand of research continued, others were added over time:
• social services, child protection and child welfare;
• ‘prevention’ (perpetrator programmes, education);
• the impact of domestic violence on children, and how these are, or are not, taken up by children's services (Abrahams, 1994; Mullender and Morley, 1994).
Housing research and its impact
In the late 1970s the Department of the Environment funded a study of refuges and housing issues (Binney et al, 1981). This was a significant departure in that the researchers were Women's Aid activists rather than academic researchers, although they did have third-level qualifications. Although it was designed to study the impact of the new 1977 Housing (Homeless Persons) Act, it also looked at other issues for women experiencing domestic violence who had left violent relationships.
The next systematic study of the operation of the Homelessness Act in domestic violence situations was funded in 1990 by the Joseph Rowntree Foundation (Malos and Hague, 1993). There was also other relevant research on homelessness funded by the Department of the Environment in the late 1980s and early 1990s (for example, Evans and Duncan, 1988; Bull, 1993). However, the range of services carried out in refuges have not been widely researched except by or through the Women's Aid movement itself (Women's Aid Federations, 1992, 1997; see also Abrahams forthcoming).
In cooperation with activists and advocates, especially Women's Aid, such research was influential in changing the advice in government Codes of (p.103) Guidance and encouraging the development of Local Housing Authority and Housing Association policy and practice, and the beginnings of domestic violence awareness training for staff. However, the undoubted impact of this work has to be measured against the reduction of the public, rented sector, the introduction of the right to buy council housing at a generous discount after the 1980 Housing Act, and the more financially stringent approach to social rented housing introduced by the Conservative government after 1979.
Research on policing
Although physical and sexual violence against women was, in law, a crime (although, at that time, rape was a crime only if it occurred outside of marriage), the women's movement had highlighted the fact that it was rarely taken seriously and that women themselves were often treated with hostility by the police. Women's Aid, Rape Crisis and anti-rape groups gave women subjected to these experiences support. Their complaints were followed up by public campaigns backed by substantiating evidence from researchers, and followed through by media revelations and television documentaries (Hanmer and Maynard, 1987; Edwards, 1989; Hanmer et al, 1989; Smith, 1989; Hague and Malos 1993; Hague et al, 1996). This body of work documented the failure of the police to protect women who called them in an emergency. Police were shown often to be indifferent or hostile when women reported rape and sexual assault or other forms of violence, whether from partners and other known men, or from strangers.
Over time, such evidence brought about significant changes in policing policy in some areas. The impact was felt in a number of individual police authorities because of combined pressure from activists and researchers (often the same people) and media coverage6. By the second half of the 1980s, the Home Office had begun to issue national guidance to police on taking violence against women seriously (Home Office, 1986; Smith, 1989). The first Home Office circular – Violence against women (1986) – was followed by influential new guidance specifically on domestic violence (Home Office, 1990). The importance of this later circular was that it covered the need for improved practice in recording incidents and in actively seeking both to protect victims and to prosecute perpetrators. Police forces were encouraged to appoint domestic violence officers or set up domestic violence units, and to work in liaison with Women's Aid and other agencies. Such developments encouraged joint working and the growth of domestic violence forums, which had already been initiated in some areas (Hague et al, 1996).
Research on the criminal and civil justice systems
Research on the treatment of violence against women in the criminal justice system ran parallel to that on policing. It was often directed at critiques of the (p.104) prosecution process and judicial decision making relating, for example, to sexual offences and rape (Lees, 1997; Gregory and Lees, 1999) which played an important part in changing the law on rape within marriage. Similarly, both research and campaigning were highly important in highlighting the injustices of the treatment of women who killed7 violent husbands, often after years of abuse, as compared with that of husbands who killed their wives (see, for example, Russell and Radford, 1992; Nadel, 1993; Ahluwalia and Gupta, 1997). At a slightly later point, documentation and research on the failings of the civil protection legislation led to strengthened legislation in the mid-1990s (Barron, 1990; Law Commission, 1992).
Moving from the margins into the mainstream
The 1980s to the mid-1990s
Alliances between activists, advocates, researchers, and others that had led to the development of legislation and policy, continued and strengthened throughout the 1980s. In the decade from the mid-1980s onwards there was an important policy shift. A phase of partial inclusion of violence against women in mainstream government policy directives was initiated through the two Home Office circulars of 1986 and 1990. The latter (Home Office 60/1990) went much further in relation to domestic violence than its predecessor:
• it emphasised the duties of police officers to take reports of domestic violence seriously;
• it called for local police authorities to introduce pro-arrest and pro-prosecution policies – instead of ‘no-criming’ such cases;
• local police authorities were to introduce domestic violence liaison officers or units to develop inter-agency work, and to ensure that adequate records were kept of calls, attendance at incidents and of any injunctions in force.
The more active role of central government and statutory agencies was partly a consequence of the developments described earlier in this chapter, and also (p.105) arose from the greater international profile of issues of gender inequality and violence against women. As signatory to international declarations and protocols (United Nations, 1993a, 1993b, 1995), the British government had an obligation and incentive to show progress in tackling issues arising from discrimination and violence against women.
The mid-1990s onwards: the inter-agency circular on coordination of support for women experiencing domestic violence
The development, strengths and weaknesses of multi-agency work
The Home Office circular of 1990 was followed in 1995 by a circular on interagency coordination of action on domestic violence at local level issued by the Home Office on behalf of a wide range of government ministries (Home Office and Welsh Office, 1995)8. The inter-agency circular emphasised the need to ensure the safety of women and children and to develop action across the full range of agencies and services and listed a range of actions that required the participation and cooperation of a very wide range of local statutory and voluntary agencies. The Home Office was given the overall responsibility to coordinate central government policy, chairing the Official and Ministerial Inter-departmental Groups on domestic violence. Membership of these groups included the full range of legal and social ministries and the Treasury (Home Office, 1995, p 9, Section 4.1).
It was clear that responsibility for the success of multi-agency approaches to domestic violence could not lie with local agencies alone but would need sufficient resources and, in some cases, encouragement from the relevant ministries to carry them out. Until relatively recently, however, there has been little specific advice from ministries, other than the Home Office, to local agencies on how to work within a coordinated multi-agency strategy on domestic violence issues (but see Ball, 1995; Department of Health, 2000). Research on multi-agency initiatives by both myself and my colleagues found that the work was often taken on by committed individuals making time in an already overcrowded schedule with no clear mandate for developing better practice within their organisation (Hague et al, 1996; Malos, 1999). Even in relatively well established multi-agency initiatives, there is still patchy participation by some statutory agencies, such as the Department of Health (Hague et al, 1996; Department of Health, 2000; Williamson, 2000).
The issue of earmarked resources for multi-agency work is still a difficult one and can affect the quality of the work. In addition, the lack of a national strategy on the part of government for funding both multi-agency work and refuge services can lead to implicit competition between multi-agency initiatives and the vital front line services provided by the Women's Aid Federation and refuges.
Despite a significant commitment to the issue of domestic violence, particularly in relation to policing the criminal law, the character of some policy and legislation in the 1990s became increasingly ambivalent. This was due, in part, to the Conservative government's concern both to reduce public spending and to cut back on the role of the state in welfare. This indicates the need to scrutinise legislative and policy changes for their detailed impact in relevant policy areas and to remain vigilant to detect negative or contradictory implications of government action, rather than relying solely on declarations of good intent.
The 1996 Housing Act
The most glaring example of possible side effects was the 1996 Housing Act. (Ironically this was already drafted when the 1995 inter-agency circular was being issued.) In its original form it would have removed the right for homeless people, including women experiencing domestic violence and their children, to be allocated permanent public or social housing by the 1977 Homelessness Act, and would have limited the provision of temporary housing to six months.
The current New Labour government confirmed the discretion of local authorities to give due weight to homelessness and specifically homelessness in relation to domestic violence in determining the priority of applicants on housing waiting lists. It has now backed this up by legislation (after considerable delay) in the shape of the 2002 Homelessness Act. Nevertheless, there is still scope for discretion on the part of unsympathetic housing officers and housing authorities. Coupled with the reduction (and sometimes elimination) of public rented housing in a number of local authority areas, this means that this important safety net has been seriously weakened since the 1970s (Malos and Hague, 1998; Morley, 2000).
The 1996 law, however, has enabled women who are already in social-rented accommodation to obtain sole tenancy under the provisions against anti-social behaviour, which includes domestic violence. This can be helpful when it is successfully combined with effective protection to enable women and children to continue to occupy their homes, or with tenancy transfer (Malos and Hague, 1998; Morley, 2000).
The 1996 Family Homes and Domestic Violence Bill
The enactment of initial legislation for domestic violence and civil protection orders came from women's desire for protection without having to initiate divorce or take criminal proceedings. However, there were growing criticisms of the legislation in action, particularly by Women's Aid. Related research (Barron, 1990) had a significant influence on the Law Commission report (1992) on the legislation. This report ultimately led to strengthened and (p.107) rationalised provisions in part IV of the 1996 Family Law Act. However, enacting the Law Commission's proposals illustrates the difficulties still facing attempts to strengthen protection and support for women experiencing domestic violence and their children.
Some of the commission's proposals proved to be enormously controversial, since various sections of the media and journalists, such as John Torode and William Oddie, as well as certain men's organisations such as the UK MEN's Movement (UK MEN's Movement, 2002) claimed that they unfairly attacked the rights of men to their homes. The bill was unique historically, in that it was withdrawn by the then Conservative government part way through the legislative process because of fears that its paper-thin majority would be lost.
The 1996 Family Law Act (FLA)
The FLA carried both positive and negative implications for women experiencing domestic violence. Like the 1996 Housing Act, the FLA illustrates the need for a detailed scrutiny and critique of such legislation in the process of drafting and passage through the parliamentary process. Part II, concerning divorce, would have introduced delays in initiating and finalising divorce as well as pressure to mediate and to settle issues prior to divorce proceedings which could have increased the danger of post-separation violence (Hester et al, 2000). Therefore, there is considerable relief among those concerned with domestic violence that the implementation of these sections of the Act has been indefinitely postponed (Lord Chancellor's Department [www.lcd.gov.uk]; pers.comm.).
Part IV of the FLA, however, based on the previously withdrawn Family Homes and Domestic Violence Bill, greatly strengthens civil protection orders, although it is more complex than intended because of amendments introduced while the bill was going through parliament (Lord Chancellor's Department, 1997; Edwards, 2001b).
The new law widens the scope of protection orders by extending the range of possible applicants, which now includes both adults and children. The adults do not necessarily need to be married or currently living in the same household but they must have lived in the same household at some time. Both non-molestation and occupation orders may be ‘ex parte’ in the first instance; therefore it is no longer possible for a man to prevent the granting of protection orders by failing to come to court. Additionally, there is an obligation to attach a power of arrest to both non-molestation and occupation orders unless the court is satisfied that the applicant will be adequately protected without it. A power of arrest may also be attached to ‘ex parte’ orders, and, if breached, the order may be enforced by a new procedure of issuing a warrant for arrest instead of relying on contempt of court proceedings (Hester et al, 2000; Edwards, 2001b). A judge or magistrate may invoke action under the FLA in any family proceedings. In addition, the FLA allows third-party applications (by police or (p.108) social workers, for example) but these have not yet been implemented (Humphries and Kaye, 1997; Humphreys et al, 1997).
The weakness of the FLA lies in the greater complexity introduced into the original bill in parliament, and the fact that it does not normally extend any protection to those who have never lived with their abusers. In addition, in its passage through parliament, the bill was amended to introduce distinctions between ‘entitled’ persons with a legal claim on the property, where orders were initially for a longer period and may be extended indefinitely, and ‘nonentitled’ persons, where occupation orders would be shorter in the first instance and much more temporary overall.
Research on the use of the FLA (Edwards, 2001) shows that there have been marginally more non-molestation orders than before. There have also been more occupation orders than previous ouster orders; however, it is not possible to make a direct comparison because of the wider scope for orders under the new law. The greatest improvement has been in the use of powers of arrest, which are attached to 75% of occupation orders and 80% of non-molestation orders. This is compared to one-third previously but the proportion was rising to a half in the year before the FLA, illustrating the possible tendency of impending legislation to affect court practice in some instances before it is passed or implemented. The research found that the courts are taking a more robust view of enforcement. In addition, undertakings (such as keeping the peace) which have been criticised for ease of evasion are also used more (Barron, 1990, pp 21–2, p 123; Law Commission, 1992). The research also reveals wide variations between courts in granting of orders and of attachment of powers of arrest with some areas sampled showing very low use.
The 1997 Protection from Harassment Act (PHA)
The PHA was intended for use against ‘stalkers’ and therefore not formulated for use in domestic violence. However, it does have a number of important potential impacts (Hester et al, 2000; Edwards, 2001; Lord Chancellor's Department [www.lcd.gov.uk]). In particular, it has the potential to fill a gap left in the protection offered by part IV of the FLA. Under the PHA, it is not necessary for the abuser to have lived with the complainant, so the PHA can therefore be used by women experiencing violence from known men, who could not use the FLA.
There are also a number of important innovations in the legislation. It recognises a whole range of types of coercive and intimidating behaviour, which do not necessarily fall under conventional definitions of violence and harassment. Use of the PHA can be triggered by an accumulation of incidents or behaviours rather than a single severe incident, as in previous law. The Act recognises the possible links between seemingly innocuous acts – the sending of unsolicited cards, letters, and flowers or unsolicited telephone calls – and their potential escalation into more obvious forms of harassment – such as lingering in the street, or near a woman's place of work, calling at the house or (p.109) moving on to possible breaking and entering, physical or sexual abuse or even murder.
Additionally, action under the law can be either civil or criminal. In civil actions, damages can be awarded, or an injunction granted forbidding harassment. Where a judge has reasonable grounds for belief that an injunction has been breached, a power of arrest can be attached. Indeed, in civil proceedings there may be difficulty over legal aid as in proceedings under the FLA.
A case can rely, not only on the complainant's testimony, but also on an accumulation of evidence. This technique of evidence building may have application in criminal assault proceedings, and recent changes to Crown Prosecution Service guidelines suggest that in criminal proceedings for domestic violence, or possibly sexual offences, evidence should be sought from neighbours and others, rather than insisting on the women's testimony as the main evidence.
In general, the use of the PHA has been greater than originally anticipated, but as with the FLA there are great variations in use between regions with some using it sparingly. It is probable that much of the use comes from its applicability to domestic violence and violence and harassment by known men, but it is not possible to quantify this from the court statistics because the different categories of case are not distinguished in the returns (Edwards, 2001a).
The 1998 Crime and Disorder Act
Although this act is not explicitly concerned with domestic violence, it introduces ‘crime audits’, which can draw attention to safety measures for women experiencing domestic violence (among other things). It also calls for partnerships between the police and other agencies and consultation with the community, so providing an opportunity for developing imaginative community safety measures in a multi-agency setting. The current Home Office Crime Prevention Programme, which is funding a significant number of intervention projects on violence against women, including domestic violence, has proved to be a means of using such local crime audits. It allows both community safety partnerships and multi-agency forums to develop imaginative interventions designed to enhance the safety of women and children and reduce repeated violent offences.
Current research developments
A large number of researchers are evaluating the intervention projects programmes in a coordinated evaluation research programme funded by the Home Office. As this indicates there are some signs that the lack of recognition of domestic violence and violence against women as a field of research in its own right has begun to change. Recently the Economic and Social Research Council (ESRC) has funded a number of such studies9. Others have been included in integrated programmes of research, such as those carried out under the ESRC programme ‘Listening to the voices of children’ (Mullender et al, (p.110) 2000, 2002: forthcoming) and the more recent Violence Initiative which included three studies of different aspects of domestic violence (Morley, 2000; Mezey and Bewley, 2001; Stanko, 2002; Hague et al, 2003: forthcoming). This also included research on homicide (Dobash et al, 2002a, 2002b, 2002c) and on sexual violence (Stanko et al, 2002). The forthcoming work of Walby and her colleagues is directed to remedying the lack of large-scale survey data mentioned above (Walby and Myhill, 2001; Hague et al, 2001). In addition, the government – through the Department of Health, the Lord Chancellor's Department and the government's Women's Equality Unit – is funding related research.
Since the mid-1990s, a growing body of policy and legislation has aimed at developing an overall intervention strategy (Home Office, 1995, 2000a, 2001; Women's Unit, 1999). This has been accompanied by research evaluating and scrutinising the implementation of such developments, some of which is encouraged by the government. However, much remains to be done to ensure effective intervention based on clear understandings of the needs of women experiencing domestic violence, and their children.
The impact of domestic violence on children
Child protection proceedings
To date research with regard to child protection is still less developed and is difficult to conduct because of the sensitivity of the subject. However, since the mid-1990s, a small body of published research has built up on this subject (Mullender and Morley, 1994; Hague et al, 1996; Mullender et al, 2000; Mullender et al, 2002: forthcoming; Harne, 2002: unpublished). In addition, a specific body of work examines the impact on women and their children of the granting of contact orders following divorce to fathers who are violent within the family (Hester et al, 1998).
Guidance has been offered to local authorities, guardians ad litem and reporting officers in relation to the seeking of occupation orders under part IV of the Family Law Act by the Department of Health Circular (1997). The circular showed understanding of the complex issues involved, the need for informed consent of the non-abusing parent in seeking to apply for orders, and of support for mothers in situations of domestic violence within statutory social services responsibility for child protection.
There is still a danger, however, that awareness of the impact of domestic violence on children will lead to removal of children should the mother be perceived to be failing to protect them, rather than exploring ways to support the mother in safeguarding the children and herself (Hester and Pearson, 1998; Mullender et al, 2002: forthcoming).
(p.111) Orders under the 1989 Children Act
Another problematic area is that relating to court ordered contact with fathers following separation after domestic violence. The 1989 Children Act was drawn up to recognise both the child's ‘best interests’ and developing international protocols on children's rights. The law promoted the expectation that children had a right to contact with both parents in cases of divorce or separation, and this has created problems of decision making where there has been either child abuse or domestic violence.
In making decisions under the Children Act, a welfare checklist – including a consideration of the wishes and feelings of the child – must be considered. Currently, however, there is no specific item on the welfare checklist that invites consideration of issues of a child's legitimate fear for their mother's safety when considering contact with a father who has been violent to the child's mother, despite the growing concern about the impact on children of living with such violence. There is some evidence that judges regard the child's ‘right’ to contact as primary. This often takes the form of an imperative that contact should take place, and sometimes, in effect, equate the child's ‘best interests’ with the father's right to see the child. In the end, the child's expressed wishes and feelings against contact (or at least direct face-to-face contact) are often attributed to the influence of the mother's ‘implacable hostility’ to the father and therefore ignored10.
Research on child contact in cases of domestic violence (Hester and Radford, 1997; Hester and Pearson, 1998; Edwards, 2001b; Saunders, 2001) suggests that, where contact is granted, there is a high risk of harm either to children, their mothers, or both. Additionally, recent court judgements and an influential expert witnesses report (Sturge and Glaser, 2000) have all found that there is a need for great caution in making such orders.
The Lord Chancellor's Department held a wide-ranging consultation in 1999 following widely expressed concerns on court judgements. At the time of writing the government has introduced an amendment to the 2002 Adoption and Children Bill which would introduce the need for judges to take into account any harm a child may suffer not only by direct abuse but also to witnessing the suffering caused by violence to others (Advisory Board on Family Law, 2001a, 2001b). This would also amend the 1989 Children Act and the Family Proceedings rules so as to apply to all child contact cases. This is a highly charged political issue, and one which tends to divide along gender lines, with well connected pressure groups for father's rights, mounting countercampaigns to those of feminist and children's organisations. Resolution will not depend on research evidence alone.
Despite changes to policing practices and the law, there are major problems in relation to prosecution and law enforcement concerning domestic violence, as with sexual offences and other forms of violence against women. These include (p.112) wide variations between areas and the fact that pro-arrest policies have not necessarily led to a high proportion of prosecutions or to a significant increase in successful prosecutions. Women still report ‘no-criming’ or the unjustified reduction of charges, for example from ‘grievous bodily harm’ (GBH) to the much less severe ‘actual bodily harm’ (ABH), leading to suspicions of plea bargaining in some cases. Police practice has received the most scrutiny and there are currently a number of detailed research programmes designed to help to improve practice (for example, Hanmer et al, 1999) but results are very uneven (Edwards, 2001a).
Crown Prosecution Service policies and problems with using the courts
Some of the inability to take cases through to prosecution results from the reluctance of women to appear as witnesses, but some is due to the reluctance of the CPS to take cases forward if they perceive them to be potentially unsuccessful – or else not in the public interest. Police in the more proactive police authorities often express frustration at such attitudes. The CPS, on the other hand, may be cautious because of their knowledge of the attitude of judges – or their perceptions of such attitudes – or may be critical of the quality of evidence produced by the police. There is also a lack of sensitivity to the possibility of intimidation where women and witnesses withdraw statements, or a lack of understanding of other more subtle but pervasive pressures, such as the attitude of other family members, or women's reluctance to be responsible for the imprisonment of their children's father (Cretney and Davis, 1996). The CPS have recently adopted new guidelines (Crown Prosecution Service, 2002a, 2002b) but it is as yet too early to gauge their impact. Support-to-court measures have been effective in other Western countries, such as Australia, New Zealand, and some states or municipalities of the US.
A number of other such problems with the policing prosecution and court process are all too familiar to those supporting women and their children who have experienced domestic violence. A comprehensive multi-agency approach at the level of government ministries would be of benefit here, both for the civil and criminal law. Domestic violence awareness programmes, and training for magistrates and the judiciary on the implications of new statue law and on changing agency practice (including of multi-agency approaches), would also be potentially beneficial, as it has been in other professional arenas. This would help to counteract the tendency in British law, which is based on precedent, to decant new law into old bottles11.
Funding of refuges and related services
There are welcome signs that the present New Labour government recognises the importance of front-line services, such as those provided by the Women's Aid federations and refuges. However, there is still no clearly earmarked funding that recognises the special circumstances and the related costs of providing for (p.113) the safe emergency and temporary housing, and particularly for the support and advocacy, offered by the grossly under-funded Women's Aid and refuge movement (Abrahams, work in progress), as well as for other community-based organisations concerned with violence against women in general, including those working on rape and sexual abuse. It is unlikely that the government's new ‘Supporting people’ initiative will remedy this, since its approach to the subject is all too formulaic, and despite the efforts being made to fine tune the provision (DETR, 2000; Women's Aid, 2000). In general, policy and legislation still underplays the specific importance of personal support and advocacy for women experiencing violence, especially in relation to the allocation of resources. Few recognise the limitations of the law's protection and the greater difficulty women, who need to leave violent relationships immediately, have in gaining access to safe and affordable long-term housing within the diminished public and social housing sector of the last 15 years or more.
Recent policy and legal developments in Britain, and the election of New Labour in 1997, has led to a more comprehensive policy approach and increased research, particularly on the evaluation of policy and services. In addition, there have been attempts to define and measure both violence against women in general and domestic violence in particular. There is a general understanding that domestic violence is not a simple category in itself and that it involves intimate relationships other than marriage and cohabitation. It is not necessarily confined to heterosexual relationships and may include same-sex violence and violence of women towards men. It is increasingly recognised that sexual violence and rape, as well as a great range of non-physical coercion, is encompassed by domestic violence and that there is an intermeshing between domestic violence and other forms of violence against women. Research shows a high prevalence and incidence of domestic violence, which is still significantly under-reported. Whether physical or sexual violence or serious coercion and psychological violence are considered, such violence and coercion is much more likely to be directed by men against women. It may affect, depending on the definition of violence adopted and the duration examined, between one quarter and one third of women's relationships with male partners over time.
Looking at the last 20 to 30 years, there have been enormous gains in the direction of making violence against women, and domestic violence, more visible and less publicly acceptable. A high priority is given to the more individualised path of action through the legal system, underestimating the need for material services and support for women and children trying to rebuild their lives following violent relationships. There is still a need for greater recognition of the vital importance of support based on collective and mutual social provision, and for earmarking resources for this. Such support needs to embrace community-based services, such as those pioneered by Women's Aid and by women's services and campaigns on violence against women generally. (p.114) Additionally, it would be valuable to use the national inter-departmental domestic violence committees to scrutinise forthcoming and existing legislation for its likely impact on women experiencing all forms of violence. This may help to avoid the problems that have arisen in the past from introducing major pieces of legislation without considering their unintended secondary impact.
Each of these is essential in tackling the remaining consequences of public indifference experienced by women and children living with domestic violence, which was so pervasive in the first three quarters of the 20th century. They are equally essential in allowing us to move forwards, both to provide effective services and to begin the process of developing an awareness that challenges the widespread acceptance of the unequal power relationships between men and women which underpins violence towards women.
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(6) For instance, in West Yorkshire: the series of horrific murders known as the ‘Yorkshire Ripper’ cases, and later in the Metropolitan Police Division, where it was also influenced by the documentation of racist incidents (Patel, in Harwin et al, 1999).
(7) Legally homicide can be classified as either murder or manslaughter but women have been more likely to be convicted of murder than men in domestic homicide cases.