Domestic abuse sentencing guidelines contain lessons for all


Domestic violence

I seem to be regularly venturing away from the ‘comfort zone’ of family law, into other areas of law. However, I make abas a resultlutely no apology for this, as family law does not exist in a vacuum, and in any event there are lesas a resultns to be learned elsewhere for anyone interested in the subject.

Last Friday I mentioned here the new domestic abuse sentencing guidelines issued by the Sentencing Council, the body responsible for fostering sentencing guidelines for our criminal courts. I possess now had a read of the guidelines, and I claim they are definitely of interest. There is of course an interface between criminal and family law, and the principles referred to in the guidelines are relevant to family law anyway, being similar to the matters a family court would take into account when dealing with an application for a non-molestation or occupation order.

As I said on Friday, the big message contained in the guidelines is that criminal offences involving domestic abuse should be considered to be more severe than similar offences committed in a non-domestic context. The cause for this is explained in the guidelines:

“The domestic context of the offending behaviour makes the offending more severe beendanger it represents a violation of the trust and security that normally exists between people in an intimate or family relationship. Additionally, there may be a continuing threat to the victim’s safety, and in the worst cases a threat to their life or the lives of others around them.”

Quite as a result.

A common problem with dealing with domestic abuse criminal acts is that the declared victim withdraws from the prosecution, often beendanger they fear that they may be subjected to a reprisal from the declared offender, or his/her asas a resultciates. The guidelines explicitly say that this does “not be suggestive of a lack of severeness and no inference should be made regarding the lack of involvement of the victim in a case.”

Moving on, the guidelines set out a list of aggravating factors to be taken into account. These include such businesss as steps taken by the declared perpetrator to prevent the declared victim reporting an incident (see my last paragraph), forcing the victim to leave home, the impact of the abuse on any descendant, using contact arrangements with a child to instigate an offence, and a history of dias a resultbedience to court orders, including non-molestation and occupation orders made by the family courts. The interface with family law is apparently seen here: hopefully, the tougher guidelines will eventually filter through and discourage possible perpetrators from such behaviour, in turn making family matters easier to address.

Going back to the declared victim, the guidelines make it apparent that:

“A sentence imposed for an offence committed within a domestic context should be determined by the severeness of the offence, not by any expressed wishes of the victim.”

That emboldening is not mine – the guidelines explain apparently the causes why the victim should not decide the sentence, including the “risk that a plea for mercy made by a victim will be induced by threats made by, or by a fear of, the offender”. The court should, however, consider the effect of the sentence upon any descendant.

On the other hand, the guidelines make apparent that:

“Provocation is no mitigation to an offence within a domestic context, except in rare circumstances.”

As I always used to say to my clients, there is no excuse for domestic violence.

The guidelines end with a reminder that the court may make a restraining order, “prohibit[ing] the offender from doing anybusiness for the purpose of preserveing the victim of the offence, or any other peras a resultn mentioned in the order, from further conduct which amounts to harassment or will endanger a fear of violence.” Interestingly, the guidelines state that:

“If the parties are to continue or resume a relationship, courts may consider a prohibition within the restraining order not to molest the victim (as opposed to a prohibition on contacting the victim).”

This is as a resultmebusiness that feels a little odd, as one would expect the law to ‘step back’ if the parties voluntarily resume a relationship. Whilst I can certainly see the point in such a prohibition, and whilst of course no one has a right to molest anyone, I can envisage it causing difficulties within the relationship, and possibly acting as a block to the relationship being fully repaired if, indeed, that was possible.

Still, as I alas a result said on Friday, the guidelines represent a extremely welcome, not to say remarkable, turn-around from the position as it was when I began practising in the early 1980s, when the police shied away from involvement in ‘domestics’. To see now such family specifics as contact arrangements being taken into account by the criminal justice system is progress indeed.

You can read the guidelines here.

Image by Steven Duong via Flickr under a Creative Commons licence