A Consequence of Blurring the Boundaries – Less Choice for the Victims of Domestic Violence?

Abstract

If the main aim of civil law is to regulate and improve matters for the future, by, for example, making orders about the future behaviour of parties rather than punishing past behaviour (criminal law), then a fundamental question is whether the civil law is adequately fulfilling these requirements regarding domestic violence. This is a particularly pertinent question given the implementation of the Domestic Violence, Crime and Victims Act 2004. This article will examine whether the Government's reforms offer protection to all victims of domestic violence as proposed in the Consultation Paper 'Safety and Justice' and will suggest that instead of achieving a clear coherent framework for dealing with domestic violence, the Act has taken a step towards blurring the boundaries between the criminal and civil law.

No longer a civil matter? The design and use of protection orders for domestic violence in England and Wales

“…There has been a parallel shift towards blurring the boundaries of criminal and civil law remedies and the development of hybrid civil-criminal remedies. Hitchings (2005) identifies this trend as starting with criminalisation of breach of the civil ASBO order in 1998. This 'hybridisation' is particularly obvious in protection orders for domestic violence, with the criminalisation (via the 2004 Domestic Violence, Crimes and Victims Act, coming into force in 2007) of breach of civil NMOs (Hester et al 2008).…”

“…On the other hand, victims may be less likely to apply for orders such as NMOs because they fear criminalising their partners and/or not having the choice themselves. Victims' advocates have argued that civil law empowers victims by giving them choice in how and when they can access protection, and conversely, that police and courts issuing orders without the need for victim consent may mark the dis-empowerment of victims, by criminalising their partners when police enforce breacheven if this was not what the victim wanted (Barron 1990, Hitchings 2005).…”

“…Whilst there are articles and inspection reports which review or evaluate specific orders (Hester et al 2008, Platt 2008, Kelly et al 2013, HMICFRS, 2017, there are few which assess the overall coherence of the protection order regime, especially looking across civil and criminal processes. Moreover, articles which do address the overarching picture tend to be either non-recent (Burton 2010, Edwards 2001, Hitchings 2005, or outside the English and Welsh context (Capshaw and McNeece 2000, Burgess-Proctor 2003, Douglas 2008, Van der Aa 2012.…”

“…Non-molestation orders made in England andWales, 2003-2018. Justice data show an overall increase in non-molestation orders since 2007, reversing the downward trend up to that point ( Figure 2 and Table 1). This suggests that concerns that more NMO applications would be contested once breach was made a criminal offence (Hitchings 2005, Burton 2010 have proved unfounded. It may be that the initial drop in NMOs following criminalisation of breach in 2007 reflected teething difficulties with implementation.…”

“…Both the victim/survivor interviews and police incidents provide further evidence of a divergence between police action to enforce breach of NMOs and breach of ROs, and suggest some confusion amongst police over their powers to enforce breach of NMOs. Hitchings (2005) suggested there was a danger that 'trivial' breaches of non-molestation orders will not be top of the police's priority list and therefore 'criminalising breach of a nonmolestation order may also have the (unintended) effect of not only failing to protect the victim, but of not achieving justice either' (Hitchings 2005, p. 99). It seems this may be the case.…”