Domestic Abuse in England and Wales: A Critique of Emerging Law and the Role of Criminal Justice

Abstract

Although Domestic Abuse law has been increasingly prevalent as an issue on the social and political radar, the legal landscape that incrementally composes the law on domestic abuse requires urgent reformulation. The criminal law on domestic abuse remains piecemeal and inadequate, despite recent developments in the modern understanding of domestic abuse, and legal developments that appear to look more to the civil law to help protect victim-survivors. There is an absence of coherence in the criminal law’s current approach. This issue, paired with the practical limitations placed on the law by a struggling criminal justice system, historically inept at recognising the experiences of women, compounds to create a wider picture of domestic abuse law that is failing victim-survivors.
This thesis offers an in-depth critical analysis of the role of the criminal law in cases of domestic abuse through a combination of doctrinal and socio-legal research. The approach is novel as there is a growing academic trend towards moving away from the criminal law as a response to domestic abuse, expressed by Michele Burman, who considers some limitations on the impact of creating new law. This thesis develops the argument that a new domestic abuse offence could be beneficial to collate current piecemeal criminal law and expand its applicability and reach.
This argument draws upon a broad range of literature, including Jonathan Herring’s book ‘Domestic Abuse and Human Rights’, which explains that, thus far, the law in England and Wales has taken an incremental approach in addressing cases of domestic abuse. The importance of a new criminal law offence of domestic abuse is framed against the need to reconceptualise what is viewed as ‘domestic abuse’. This argument builds upon the work of Evan Stark, who theorises domestic abuse as a liberty crime, to suggest that it should be categorised as both a liberty crime and an assault crime contemporaneously.
A feminist perspective, based largely upon the work of Carol Smart and Helena Kennedy, is employed to investigate the role, and failings, of the criminal justice system in dealing with cases of domestic abuse. Further, this thesis draws from Clare McGlynn and Kelly Johnson’s work on ‘Cyberflashing’, highlighting important linkages between the development of technology based harms and domestic abuse.
An analysis of the recent Domestic Abuse Act 2021 is then offered to assess the current direction the law is taking concerning domestic abuse and highlight some missed opportunities.