7. Memorandum submitted by Women's
Aid
INTRODUCTION
Women's Aid Federation of England (Women's Aid)
is the leading national domestic violence charity which co-ordinates
and supports a network of over 370 local organisations in England,
providing over 500 refuges, helplines, outreach services and advice
centres. Women's Aid's work is built on 30 years of campaigning
and working in partnership with national and local government,
health authorities, the justice system and voluntary organisations
to promote the need for an integrated approach to prevent domestic
violence and to protect abused women and children.
SUMMARY OF
KEY ISSUES
AND RECOMMENDATIONS
A. DEFINITION
OF DOMESTIC
VIOLENCE
Women's Aid's defines domestic violence as physical,
sexual, psychological or financial violence that takes place within
an intimate or family-type relationship and that forms a pattern
of coercive and controlling behaviour.
Crime statistics and research both show that
domestic violence is largely gender specific (ie predominantly
experienced by women and perpetrated by men) and that any woman
can experience domestic violence regardless of race, ethnic or
religious group, class, sexuality, disability or lifestyle. The
British Crime Survey (Walby and Allen 2004) noted that when four
or more incidents of domestic violence, sexual assault or stalking
were reported, 89% of victims were women.
Domestic violence is recognised by the United
Nations as having its roots in the historical status of women
in the family and in society, and as a violation of women and
children's human rights. Domestic violence has until recently
been acceptable within UK culture. For exampleit was only
1991 when rape in marriage was criminalised.
Women's Aid recommends that the definition within
the Sentencing Guidance recognises the fact that domestic violence
is frequently based on a pattern of coercive and controlling behaviours
and is largely gender-specific.
Although the Court will focus on particular
incident(s) of offending behaviour, it is also important to recognise
that this is likely to be part of a pattern of coercive and controlling
behaviour by the perpetrator over the victim. This would help
inform the Court in its consideration of aggravating or mitigating
factors.
B. ASSESSING
SERIOUSNESS
Women's Aid welcomes the fact that these guidelines
acknowledge that sentences for offences committed in a domestic
context should be no less serious than offences committed in a
non-domestic context.
C. AGGRAVATING
AND MITIGATING
FACTORS
(i) Abuse of trust and power (page 4)
Women's Aid agrees that these should be aggravating
factor.
Women's Aid disagrees that the abuse of power
is necessarily diminished after separationresearch and
experience show that in many domestic violence cases harassment,
violence and abuse often continues long after separation and recommends
that this should be removed.
(ii) Victim is particularly vulnerable (pages
4-5)
Women's Aid recommends that the second paragraph
is put first since this is the general point and then the second
paragraph should go on to describe the factors that are listed
in the first paragraph. Disability, age, cultural and religious
factors should also be included as affecting vulnerability.
Paragraphs (iii) & (iv)
Women's Aid welcomes the recognition that the
impact on children and using child contact arrangements are considered
to be aggravating factors.
(vii) Victim forced to leave home (page 6)
Women's Aid recommends that where a victim has
been forced to make use of sanctuary schemes and civil remedies,
this should also be included in this section.
MITIGATING FACTORS
(i) Positive good character
Women's Aid welcomes the statement that `one
of the factors that can allow domestic violence to continue unnoticed
for lengthy periods is the ability of the perpetrator to have
two personae'.
However, Women's Aid is very concerned that
public good character should be taken into consideration. This
should not be rewarded, and should not be taken into consideration
in any incident even if it appears isolated, as most domestic
abuse is repeated and serial abuse but is private and hidden.
An assessment of victim interests and needs to be considered rather
than character.
Women's Aid recommends that pre-sentence report
assessment of future risk (and ongoing risks highlighted in the
victim personal statement) should be of much greater relevance
than past public "good character".
(ii) History of the relationship
Women's Aid agrees that the court should take
account of the whole relationship in assessing the gravity of
the offence. In this context, an explicit summary of what constitutes
"coercive control" within the relationship may be helpful
to the court.
Women's Aid agrees that assertions of provocation
need to be treated with great care and supports the wording of
the Sentencing Advice Panel advice to the Council:
"for provocation to be a mitigating factor,
it will need to involve actual or anticipated violence including
psychological bullying. Provocation is likely to have more of
an effect as mitigation if it has taken place over a significant
period of time".
Women's Aid believes that it is vital that conduct
such as infidelity, adequacy as a parent or housekeeper, etc,
should not be admitted as mitigating factors (as has sometimes
been the case in the past).
D. OTHER FACTORS
INFLUENCING SENTENCE
(i) Wishes of the victim and effect of the
sentence (page 7)
Women's Aid recommends that:
A distinction needs to be made between
the interests of the victim and the wishes of the victim. See
Human Rights Act (HRA) distinction between wishes and interests.
This is particularly relevant when considering future risk.
The seriousness of the offence should
generally determine the sentence, not the wishes of the victimagree
with the guidance points on this.
Women's Aid disagrees strongly that a victim's
expressed wish for the relationship to continue should be a mitigating
factor.
This should not be a factor for the
court as there is no way of determining if it is genuine and won't
expose the victim to further risk, and it also ignores the risk
posed to other victimschildren and future victims
Research by Gondolf[8]
showed that repeat assault is more likely when couples stay together.
Apart from the immediate risk of separation and in cases of ongoing
stalking/harassment, victims are at greater risk if they stay
in a relationshipso a continuing relationship should not
be seen as a mitigating factor. It is important to focus on the
crime and not the relationship.
(ii) Interests of the Children (page 7)
Women's Aid is concerned that the Children Act
concept of the best interests of the child should be used in this
limited context.
The interests of children (and the
continued relationship/contact with children etc) would not be
considered in the sentencing of offenders convicted of violent
crimes to strangersthis is a double standard.
It is not the role of the criminal
court to determine the best interests of the child and this section
makes no reference to Section 120 of the Children Act 2002 (witnessing
violence is a significant harm factor for children) nor to the
considerable child protection issues. This is more rightly understood
and managed within the family courts with detailed and specialist
assessment by agencies such as CAFCASS.
The management of risk and of victim
safety (adults and children) should be the paramount considerations
for the court.
E. FACTORS TO
TAKE INTO
CONSIDERATION
Paragraph 4(a)
Women's Aid disagrees that an offender's expression
of remorse should have an impact on sentencingthis section
needs to be changed.
It is a feature of domestic violence
that perpetrators frequently show remorse after their attacks
in order to prevent victims leaving them.
Even if there is remorse the perpetrator
may be highly unstable and remain high riskthis is what
needs to be assessed.
If expressing remorse brings rewards
(eg avoidance of custody), then this is a big incentive.
Paragraph 4(b)
Women's Aid disagrees strongly that:
The preservation of the relationship
should be a consideration, as already stated there is evidence
that shows the longer the relationship continues the more likely
the violence is to recur.
This suggestion of allowing remorse
as a mitigating factor undermines previous guidelines set out
in B and C. Remorse should not be used as a mitigating factor
since as is already acknowledged in this document that domestic
violence perpetrators often demonstrate "two personae".
It would be difficult to set criteria for or to measure "remorse"
in cases of domestic violence.
Women's Aid recommends that:
Safety has to be the paramount consideration
and Risk Management measures are implemented as a matter of course.
Remorse should not be considered
as a mitigating factor.
Sentencing should be based on the
sentencing threshold (as stated in B. Assessing Seriousness) combined
with Risk Assessment and Risk Management measures that need to
be put in place alongside any sentence.
Paragraph 4(c)
Women's Aid support Respect's position on the sentencing
of convicted offenders, as follows:
The sentencing of convicted offenders has several
functions:
Reducing risk of future harm.
Sentencing needs to take all of these
into accountWomen's Aid believes that the most important
of these is reducing future harm.
Women's Aid is not aware of any research
into the effect of different sentencing options in domestic violence
cases in the UKso it is hard to predict whether short custodial
sentences have any impact on risk of future harm. However, what
we know about domestic violence (being about entrenched patterns
of behaviour based on power, control and entitlement) tells us
that a short custodial sentence on its own is unlikely to bring
about lasting change in a perpetrator and is therefore unlikely
to reduce the risk of future harm (to the victim, children and
future victims).
However, when the custody threshold
has been reached, a custodial sentence should not be dismissed
(particularly as to have reached the custody threshold a serious
crime such as GBH or ABH is likely to have been committed). A
custodial sentence may well have a deterrent effect and gives
a clear message to the victim, perpetrator and the community that
domestic violence is taken seriously. It will also ensure that
justice is seen to be done and adequate punishment for the crime
is imposed.
We would suggest a case by case basis
to sentencing.
If an offender has both offered an
early guilty plea and shows willingness to participate in a perpetrator
programme it may be appropriate to impose a suspended order or
a community order, in either case with a requirement to attend
a domestic violence perpetrator programme.
Pre-sentence report risk assessment
is key to determining whether such a sentence is appropriate.
In cases where the custody threshold
has been reached, Respect would like to see exploration
of the use of Custody Plus or other such means by which justice/punishment
and rehabilitation/risk of future harm are addressed jointlyby
use of both custody and community rehabilitation orders.
There should be clear guidance that
fines and bindovers are not appropriate sentencing options in
domestic violence cases.
Paragraph 4(d)
If the perpetrator has previous convictions
for domestic violence (or other violence against women or children)
related offences and the custody threshold has been reached, then
a custodial sentence should always be imposed.
Any suspended sentence or community
order must be accompanied with a Risk Assessment and implementation
of Risk Management measures.
Fines may have a direct negative
impact on victim & children. There should be clear guidance
that fines and bindovers are not appropriate sentencing options
in domestic violence cases.
The safety and welfare of the victim
is paramount and compliance with Risk Management of the perpetrator
is crucial.
The sentencing of convicted offenders
has several functions:
Reducing risk of future harm.
Sentencing needs to take all of these into account.
A case by case approach forms the
basis of sentencing since when the custody threshold has been
reached, a custodial sentence should not be dismissed (particularly
as to have reached the custody threshold a serious crime such
as GBH or ABH is likely to have been committed). A custodial sentence
may well have a deterrent effect and gives a clear message to
the victim, perpetrator and the community that domestic violence
is taken seriously. It will also ensure that justice is seen to
be done and adequate punishment for the crime is imposed. However
a short custodial sentence on its own is unlikely to bring about
lasting change in a perpetrator and is therefore unlikely to reduce
the risk of future harm (to the victim, children and future victims).
If an offender has both offered an
early guilty plea and shows willingness to participate in a perpetrator
programme it may be appropriate to impose a suspended order or
a community order, in either case with a requirement to attend
a domestic violence perpetrator programme.
Pre-sentence report Risk Assessment
is key to determining whether such a sentence is appropriate.
In cases where the custody threshold
has been reached, exploration of the use of Custody Plus or other
such means by which justice/punishment and rehabilitation/risk
of future harm are addressed jointlyby use of both custody
and community rehabilitation orders.
ANNEX A OF
GUIDELINE
(i) Aggravating factors
Women's Aid recommends that:
Paragraph 1.22 Factors indicating higher
culpability must include hostility to the victim based on
gender, addition to acknowledgement of race, religion and disability.
Paragraph 1.23 Factors indicating a more than
usually serious degree of harm
Women's Aid recommends that in cases of domestic
violence the Court should also consider:
Violence in previous relationship;
Threats from other family members;
Threats to children or other family
members.
Nicola Harwin
Chief Executive
May 2006
8 Gondolf, E Batterer Intervention Systems
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