Individuals who are victims of domestic abuse can often become criminalised when challenging their abuser and trying to report the abuse to the authorities.
The line between victim and perpetrator becomes blurred;
When police attend domestic disturbances and an injured party makes an allegation, they are duty bound to arrest the alleged ‘perpetrator’. This is actioned in accordance with first accounts and evidence taken at face value which often leads to the real victims failing to be safeguarded properly, and arrested, due to their abuser fabricating events. With pressure on police to expedite matters often the wider context of the relationship is not explored; crucial abusive behaviours and opportunities to discover a pattern of offending are missed. When police attend a domestic violence incident , normally they will initially only consider the incident in isolation without spending time on the nature of the relationship building up to the incident. Physical abuse can be the last resort in a lot of cases as their behaviour escalates or they cannot control the victim using usual methods
Law enforcement and frontline services need to utilise essential toolkits and training available to them such as the Domestic Abuse, Stalking and Honour Based Violence (DASH 2009) Risk Identification, Assessment and Management Model. This can be a life saving exercise and is essential to help recognise indicators of high-risk domestic abuse. See link for further information
The law now recognises that abuse is not limited to acts of physical violence but includes psychological abuse with section 76 of the Serious Crime Act 2015 introducing the offence of ‘coercive control’ . see our blog here. This constitutes continuous or repeated behaviour that is controlling/coercive. There is guidance as to what constitutes this behaviour (dictating what that person does on a day to day basis; when they eat, when they sleep/shower, who they interact with, stopping or limiting access to medical/support services/family/friends, creating isolation, controlling their finances, controlling their online activity/communication methods, creating rules and regulations to abide by, making threats, humiliation, gas lighting, accusations that they are mentally unwell). The list is not exhaustive and includes any behaviour that has a serious effect on the victim causing fear of violence, alarm distress and which seriously adversely effects their day to day activities. The net should be cast far and wide when identifying such abusive behaviours as they will be tailored to the victim and their personal circumstances/vulnerabilities.
There have been many cases involving victims who have retaliated with violence against their partner as a result of their prolonged abuse and/or out of fear of being seriously hurt/killed. The law still does not adequately protect those harmed in these situations, particularly where the abuse sustained is psychological; in absence of physical injuries, medical reports and police reports, proving that an individual has been coercively controlled is difficult.
One the most recent high profile cases is that of Sally Challen who was sentenced to 22 years, reduced to 18 on appeal, for killing her abusive husband. Her case is currently before the High Court where she is appealing the murder conviction and her defence team are highlighting that coercive control goes to the issue of diminished responsibility and did amount to provocation for killing her abuser.
Sally only realised that she had been a victim of coercive control when she attended a course in prison on the subject. Often an individual will have been a victim of coercive control for a long period of time without realising that they are being coercively controlled. Their abuser’s actions in isolation can appear innocent but it will be the accumulation and prolonged use of such actions that establishes a pattern of abuse which is key in establishing coercive control.
Sally relied on the partial defence of diminished responsibility at her original trial. However, the trial failed to paint the full picture and detail the horrendous and prolonged psychological abuse that Sally suffered by her husband which eventually caused her to retaliate.
One of the other partial defences to murder is that of ‘provocation’ which has now been replaced with the ‘loss of control’ defence. Provocation, which was prejudicial against women who killed their violent abusers, was a defence available at Sally’s original trial but not relied on.
The loss of control defence, applicable to defendants where the alleged murder occurred on/after 4th October 2010, involves establishing a qualifying trigger. If this was available in Sally Challen’s case it would be the years of coercive control she endured. Defendants would need to adduce sufficient evidence to raise an issue in respect of the loss of control defence. Obtaining evidence to show that an individual has been subjected to coercive control leading up to, and resulting in, the fatal incident, will be a challenging task, especially where the abuse has not occurred over a significant period of time.
The courts need to properly recognise and fully understand coercive control so that the real victims are offered protection by the criminal justice system. The case of Sally Challen will hopefully be the platform for doing so and the case being heard before the Royal courts of Justice on 27th-28th February 2019.
Domestic abuse does not favour class, gender, religion or status. At BSB we are engaged with organisations that offer women support such as Centre for Women’s Justice and our lawyers are trained in using the DASH risk assessment model. We can therefore offer a full supportive service for individuals who have been criminalised when challenging their abuser.