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June 9, 2018

If we want to reduce domestic abuse, should we be using the criminal justice system?

Everyone involved in domestic abuse wants to stop it. But there is huge disagreement about how to do so. Many campaigners feel that domestic abuse would stop if all incidents were prosecuted, if more cases resulted in convictions, and if sentences were tougher. Their views are reflected in the government’s recent proposals for reform which include a new statutory aggravating factor to increase sentences “within the statutory maximum penalty available for the offence”, fast track court hearings and encouraging more trials to go ahead in the absence of the alleged victim.

The criminal justice process for domestic abuse is indeed problematic. The police are under huge pressure to refer cases for prosecution rather than use out of court disposals or other approaches. But alleged victims often won’t give, or withdraw, evidence whether for fear of the repercussions or for other reasons. So many cases do not meet the evidential threshold required for prosecution, while others collapse later on. Once a domestic abuse case gets to court, the conviction rate is actually quite high compared to other crimes – 86% compared to 66% for robbery.

Domestic abuse isn’t one offence so there are no sentencing statistics for it. The most common offences “labelled” domestic abuse are possession of weapons, drug offences and public order. Where these crimes are between “intimate partners” or family members, sentencing is usually more severe. In the magistrates’ courts the most common sentence (from the evidence of a small scale Sentencing Council study) is community order followed by fine then imprisonment.  Respondents to a survey Transform Justice are doing are pretty sceptical that such these sanctions are anything more than “somewhat effective” in reducing domestic abuse. Respondents are particularly sceptical that fines and discharges have any influence on behaviour. Short prison sentences are seen as more effective than some sanctions, but still only 17% think they are extremely or very effective in reducing domestic abuse.

So are our respondents right to be sceptical about the power of a criminal sentence to stop an abuser abusing? International research suggests they should be even more sceptical. The Whats Work Centre for Crime Reduction is run by the College of Policing to review research on practices and interventions to reduce crime. From international studies they concluded that “criminal justice sanctions for intimate partner violence have no consistent effect on subsequent offending”. In 15 studies prosecution was associated with reduced offending, in 17 it had no effect and in 4 it led to increased offending.  Some studies assessed the impact of different types of sanction.  More severe sentences led to increased offending, with prison sentences being most counter-productive: “Specifically, prison sentences were associated with higher rates of recidivism 36% of the time and had no effect in the remainder”. This damning evidence that “prosecution and conviction had no relationship with recidivism” seems to have been sidelined in policy development in England and Wales.

Reducing crime is only one of the purposes of sentencing. Criminal sanctions are also meant to punish, to ensure the perpetrator makes amends and to protect the public. People want abusers to be punished, and some domestic abusers need to be locked up to ensure that the victim is protected, at least for the duration of the sentence. But we cannot lock up all abusers and throw away the key. And its clear from the evidence that more punitive sentences are counter-productive in terms of reducing offending long term.

Criminal sanctions are not necessarily what victims of domestic abuse want. Hoyle and Sanders found that while over half of their study sample of victims wanted their perpetrators to be arrested, most of them did not want their partner to be prosecuted. Instead, they wanted to ‘teach him a lesson’ and to send an important symbolic message. Survivors do not always seek punishment and often request help and other forms of rehabilitative measures for their perpetrators.

I understand the desire for domestic abusers to be punished publicly and receive the ultimate sanction – a criminal sentence. But if criminal sanctions (according to the College of Policing) have no effect on reoffending, I wonder why we place such emphasis on prosecuting domestic abuse?  And why, if short prison sentences increase offending, courts are encouraged to use them? The criminal justice process is fantastically expensive, is, and probably always will be, stressful for victims, and abusers end up with a sentence which does not address their abusive behaviour. Surely the resources eaten up by the criminal justice process could be better spent on out of court disposals, support for victims (including refuges) and effective perpetrator programmes? The government says they want to increase sentences to “give a clear acknowledgement of the negative impact domestic abuse can have”. But the law is a very clumsy and costly means of signalling societal disapproval, particularly if it has no effect on reoffending.