8. Supplementary memorandum submitted
by Women's Aid
NB this response complements our response
to the Guidance on Overarching Principles for Sentencing in Domestic
Violence Cases.
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.
We welcome the new provisions within criminal
and civil law that form the basis of this guideline.
KEY COMMENTS
B. SENTENCING
FOR BREACH
Women's Aid believes that the breach and any
substantive offence should always be treated as separate offences
and sentenced consecutively.
C. FACTORS INFLUENCING
SENTENCING
1.15 Women's Aid agrees that the sentence
should be for the breach or any substantive offence, rather than
any further punishment for the original offence. However, if the
offender was given a non-custodial sentence e.g. community perpetrator
programme requirement, for an original offence that did reach
the custody threshold, then custody for breach should be implemented.
1.18 Women's Aid welcomes the recognition
that violent behaviour that is non-physical can also cause a high
degree of harm and anxiety (and indeed is usually intentional
in this respect), and should also attract a custodial sentence.
1.19 However we are concerned that this
is not the view of the Council in relation to civil orders. In
our experience, orders are breached in many ways that do not involve
obvious threats or physical violence but which can terrify and
terrorise. For example, a victim arriving home to find (supposedly
innocuous) flowers on her pillow, or other evidence that her ex-partner/abuser
has entered her home without permission, receives a clear controlling
message about her lack of privacy and safety and his continuing
access to her life.
1.20 In the view of Women's Aid, it should
never be the role of the court to facilitate reconciliation between
offenders and victims in cases of domestic violence as this may
put the victim (and in some cases her children) at serious risk.
As noted in our response to the Overarching Guideline on Domestic
Violence, rehabilitative sentences e.g. domestic violence community
perpetrators programmes should not be considered on the basis
of the relationship but on the basis of an assessment of risk,
and risk management, the interests (not wishes) of the victim
and her children, and whether any such programme is considered
suitable or appropriate for the particular level of crime and
the individual offender.
1.21 Women's Aid reiterates our view that
remorse should not be a factor in sentencing for domestic violence
as this is frequently used by perpetrators as part of a pattern
of abusing and controlling behaviour and 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 (e.g. avoidance
of custody), then this is a big incentive. As noted above, where
the custody threshold has been met, a suspended sentence or community
order should only be used where the above criteria in relation
to risk and safety are considered, and should always involve a
community re-education programme. Again, the use of Custody Plus
should be considered in serious cases.
D. AGGRAVATING
AND MITIGATING
FACTORS
1.24 Criteria for vulnerability should include
age and disability.
1.29 We welcome the recognition of the impact
on children and context offered by contact arrangements to commit
further offences.
1.32 Breach committed after long period
of compliance. In our view it would be important to assess that
this was the only breach, or whether the only recorded one, as
the offender may have been stalking for some time. Again the impact
on the victim and any children may be substantial in terms of
renewed fears and anxiety for the future and should be taken into
account. It would be helpful to have an indication of the nature
of "long period".
1.33 Victim initiated contact. Women's Aid
strongly disagrees that victim initiated contact should be considered
mitigation, as this falls into victim-blaming. Firstly, the offender
is responsible for his own behaviour and choices and the victim
should not be held responsible for these. Secondly, she may be
under pressure to resume contact with the offender from children,
other family members and the offender himself, as well as constrained
by family court orders which make management of contact very difficult.
If some informal contact has taken place, the victim may well
feel pressured or threatened into allowing this. Even if she has
done so (e.g. because of financial or other pressures), if the
order is therefore breached and especially if another substantive
offence is committed, then this should not be treated as a mitigating
factor.
Nicola Harwin
Chief Executive
May 2006
| 
