It's control and access we need

With a new law on domestic violence soon to come into force, Holly Pelham looks at the legal struggles still facing women today

Over thirty years ago when the Women’s Liberation Movement was in its infancy, the focus of attention was on sex discrimination, equal pay and free contraception for all. These issues were championed throughout the 1970s, 1980s and 1990s and by the turn of the century, there was a plethora of new legislation in force. But there the law has its limitations and it is disappointing that there is still no equality in reality. The reality in terms of equality and discrimination still has some way to go.

On the one hand some of the battles have been won, on the other new debates have emerged with new causes to fight. But one – the most widespread, most iniquitous of all continues, that of domestic violence. It doesn’t much matter which source you use, the statistics are equally appalling: one in four women experience domestic violence. Some say one in three. Worse still, 64% of those women who experience domestic violence don’t even recognise it as a crime.

It hasn’t of course helped that our legislators have avoided all sensible requests to define the term in law. It’s not entirely clear why. Australia and New Zealand have perfectly straightforward, user-friendly definitions of domestic violence. It makes it a lot easier when, as in New Zealand’s Domestic Violence Act 1995, it’s there in black and white – domestic violence includes physical abuse, sexual abuse and psychological abuse including intimidation, harassment, damage to property and threats of the above. But such clarity still seems to make our courts uncomfortable.

Or perhaps it’s actually about something else: a reluctance to legislate on what happens within the home in intimate relationships. After all, it wasn’t until as recently as 1991, after years of vigorous campaigning by women’s groups, that marital rape finally became a crime.

It’s salutary to remember how far we’ve come from the words of Sir Mathew Hale who ruled in 1736 that husbands could not be found guilty of raping their wives because: By their mutual matrimonial consent and contract the wife has given up herself in this kind unto her husband, which she cannot retract. And so, after more than 250 years, women were at last no longer classed as chattels and the anomaly in our criminal law was finally corrected.

That was the 1990s. How, in more recently times, has the law protected women from domestic violence? Poorly. Where there are laws to protect women – such as non-molestation orders – they are often cautiously and erratically enforced. Perpetrators do not take them seriously. They don’t need to. They know, even for a repeat offence, that they are unlikely to be sent to prison. They may be looking at a fine, or possibly a suspended sentence. But it is rare to find a judge who will punish an offender more seriously than that.

Clearly, the value of a non-molestation order is entirely dependent on the effectiveness of the enforcement. Without effective enforcement, such protection is meaningless, leaving the abuser to breach with impunity. Now, finally, the government has decided to criminalise breach of a non-molestation order when the Domestic Violence Crime and Victims Act 2004 comes into force on 1st July 2007. Under s.1 of the Act breach of a nonmolestation order will be punishable by up to five years in prison.

The fact that domestic violence is being taken seriously is to be commended. But what are the implications for women? And is this the best option? We know from women who call our legal advice line that the vast majority are reluctant to criminalise their partners. They want protection, not arrest and prosecution. They are alert to the potential consequences of inflaming the situation and fear the very real risk that they may lose their partner, their home and their financial stability.

At Rights of Women we are particularly concerned by the loss of control that criminal proceedings will mean for women. To illustrate, at the moment if a non-molestation order is breached, the woman can choose whether she wishes to take enforcement proceedings against her abuser in a county court or not. It’s up to her. At any point she can withdraw. She remains in control throughout. However, with the new changes, once a non-molestation order has been breached and has been reported to the police, the matter is taken out of her hands. She cannot discontinue enforcement proceedings. Consequently she may be forced to give evidence against her abuser and against her will. It is still early days, but we have concerns about the prospect of automatic criminalisation. We would have preferred stronger enforcement measures in the county court, with women retaining control over the decision to take enforcement proceedings and the court process that ensues.

Ultimately, though, laws mean nothing if women can’t access them. With access to justice being reduced across the board, it is the most vulnerable groups who are hardest hit. In particular this means women, often the primary carers, who are dependent financially on their partners.

As legal aid diminishes, the demand for other sources of free legal advice has vastly increased. Last year Rights of Women received approximately 75,000 attempted calls by women wanting free legal advice. This was a 25% increase in the number of calls we received the year before. Of these we advised 1,500 women. Demand vastly exceeds our capacity to supply.

The need for greater access is all the more urgent given that many callers have been through years of domestic abuse before reaching the stage where they are able to seek legal advice. Many of the women we advise tell us that they do not know where else to turn. They fall in the ever widening gap between the prohibitive cost of a solicitor and the legal aid threshold.

There is also another worrying trend. While we are unable to compile statistics for reasons of confidentiality, we know from our callers that a disproportionate number of abusers are in fact police officers. This is a source of obvious concern to us, because it means that for these women reporting the matter to the police may not be an option. This immediately disqualifies them from legal aid. If they can’t afford a solicitor (and the vast majority of our callers are in this category) then they will only be able to get a court order if they represent themselves through the daunting process of court proceedings.

There is clearly an urgent need not just to improve the substance of the law as it protects women but also to address the issue of access. At Rights of Women we believe that knowledge is power and that providing free legal advice to women is a vital form of empowerment.

Holly Pelham is Legal Officer at Rights of Women which operates two free legal advice lines for women staffed by trained barristers and solicitors.

This article can be found in the print edition of Socialist Lawyer number 46, April 2007.