We’ve come a long way since it was legal for a husband to beat his wife to exert his authority over her (remember we have evolved from a time when women used to be considered men’s property and had no voting and property rights). If you thought that the beating of a wife with a stick not thicker than his thumb was a reference from the Quran and Hadiths being allowed in Islam only, think again. This was legal in the United Kingdom throughout the 19th Century, when the “rule of thumb” was established by Sir Francis Buller, known as ‘Judge Thumb’, as a measure for the thickness of the stick that wives were allowed to be beaten with.
It would take another hundred years for all women over 21 years of age to have the right to vote in the UK. How far the hands of the law could and should reach when it comes to incidents within a domestic or family and private setting continues to be a sensitive topic. While the definition of domestic violence in recent times has expanded to include economic, emotional, psychological violence and controlling behaviour, the hands of the law still fall far short in protecting victims of all genders, age, and ethnicity, of domestic violence.
But first, the legal part. When a victim of domestic violence makes a 911 call or calls the National Helpline for Domestic Violence, the victim’s statement is taken along with any other evidence before moving on to court proceedings. In a criminal court, the burden is on the Crown Prosecution Services (CPS) to prove beyond reasonable doubt so that the Magistrates or Judge can be sure that battery under section 39 of the Criminal Justice Act did take place. Battery is committed when there is the intentional or reckless application of unlawful force to another person.
Additional points to note are that Section 1(3) of the Domestic Abuse Act sets out what constitutes abusive behaviour as follows:
- physical or sexual abuse
- violent or threatening behaviour
- controlling or coercive behaviour
- economic abuse (including any behaviour that has a substantial adverse effect on the victim’s ability to acquire, use, or maintain money or other property, or obtain goods or services)
- psychological, emotional or other abuse
Section 2 of the Domestic Abuse Act captures which relationships can fall within the scope of being domestic:
- they are, or have been, married to each other;
- they are, or have been, civil partners of each other;
- they have agreed to marry one another (whether or not the agreement has been terminated);
- they have entered into a civil partnership agreement (whether or not the agreement has been terminated);
- they are, or have been, in an intimate personal relationship with each other;
- they each have, or there has been a time when they each have had, a parental relationship in relation to the same child;
- they are relatives.
The penalty: Battery or assault by beating under the Criminal Justice Act is an imprisonable offence.
As expected, the main evidence the Crown relies on in criminal proceedings to prove its case comes from the victim, also known as the Complainant. Herein lies the challenge and the conundrum of how far the hands of the law can reach, for what happens when a Complainant makes a complaint of an incident but after the dust from the fight has settled no longer wishes to proceed with the case and put their relationship at risk, even if it could kill them?
“I called the police because I just like messing with them because I don’t think they’re very good at their job”.
This was the response the complainant gave in cross-examination when giving evidence in favour of the defendant. She refused to support the Crown’s prosecution case despite initially complaining of strangulation and assault by beating by her partner. By the time the case came to court, she was heavily pregnant and expecting a child with this partner. As the court found him to be guilty, she left the court room with him, cursing at the Magistrates and slamming the door behind her, exiting quickly enough to avoid being in contempt of court for these actions.
This was one of the rare instances when even when the victim or complainant does not support the prosecution, the Crown manages to continue to prosecute and win with evidence collected of the incidents in photos, videos, call records and interviews. More and more in the Magistrates’ Courts, victims, despite initially making a complaint for being in fear for their lives, later refuse to cooperate with the charge(s). When the victim’s evidence in court is the main piece of evidence being relied on and the victim refuses to turn up to give evidence against the abuser, cases fall through and the defendant/abuser is released as if nothing happened. Bearing in mind, the prosecution will go through a rigorous test of considering whether there is sufficient evidence to provide a realistic prospect of conviction and whether this prosecution is required in the public interest before taking the matter to court to begin with. Can you imagine then, how many incidents of domestic violence don’t even make it past that initial phone call or even the dark confines of a home? What is the line between the interest of justice and interference with family life? How far can the hands of the law go when the victim themself are not in a position to let it despite living in fear for their lives? What more do we need to do as communities to help victims out of these familial traps?
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