House of Commons - Home Affairs

Select Committee on Home Affairs Written Evidence

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 example—it 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 separation—research 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 victim—agree 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 victims—children and future victims

(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 strangers—this 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 sentencing—this 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 risk—this 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:

— Justice;

— Punishment;

— Rehabilitation;

— Reducing risk of future harm.

— Sentencing needs to take all of these into account—Women'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 UK—so 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.

Respect

— 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:

— Justice;

— Punishment;

— Rehabilitation;

— 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).

— 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 jointly—by 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;

— Other victims;

— Threats from other family members;

— Threats to children or other family members.

Nicola Harwin

Chief Executive

May 2006

8 Gondolf, E Batterer Intervention Systems (2002).

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