Defending abuse survivors who go on to offend

Katy Swaine Williams of the Centre for Women's Justice proposes a new statutory defence for survivors whose offending is driven by their experience of domestic abuse.

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A new statutory defence

This is a guest post by Katy Swaine Williams, a research and policy consultant who leads the Centre for Women’s Justice programme to challenge the unjust criminalisation of survivors of domestic abuse and other forms of violence against women and girls. You can contact Katy at: k.swilliams@centreforwomensjustice.org.uk

This week sees the beginning of the Domestic Abuse Bill’s Report stage in the Lords, two years after it was first introduced under Theresa May’s premiership. Significant shortcomings remain – notably the failure to provide equal protection for migrant women – and the Bill does not solve the funding crisis in service provision, but it will lead to important progress. Gains include an end to cross-examination of victims by their alleged abusers in the family courts, a statutory duty on local authorities to support victims in refuge accommodation, and establishing non-fatal strangulation as a stand alone offence.

However one group that will see no benefit from the Bill as it stands, are those survivors who are driven by their experience of domestic abuse into alleged offending.

Sally Challen’s successful appeal in 2019 highlighted the devastating impact of coercive relationships and the lack of legal protection for survivors of domestic abuse who are driven to offend. This was recently highlighted again in research by Centre for Women’s Justice (CWJ) on the criminal justice response to women who kill their abusers, which also carries lessons for the much larger number of survivors who are prosecuted for more minor offences.

“He’d make me do things just so that I could get drugs…” – Domestic abuse survivor

Most women offenders have experienced domestic abuse

Almost 60% of women supervised in the community or in custody, who have an assessment, have experienced domestic abuse; the true figure is likely to be much higher. Women in prison are more than twice as likely as men to say they have committed offences to support someone else’s drug use as well as their own. Research by the Disabilities Trust with 173 women at HMP Drake Hall found 64% had a history indicative of brain injury and for most this was caused by domestic violence. Women with learning disabilities are particularly vulnerable.

For many of these women, their offending results directly from their experience of abuse. Research by Jo Roberts, Marianne Hester, Susan Edwards, Janet Loveless and others, and evidence collated by the Prison Reform Trust and CWJ, show the myriad ways in which women’s experience of domestic abuse can lead to their own criminalisation. These tend to have something in common – the allegedly offending behaviour occurs because of the woman’s fear of her abuser. Examples include handling stolen goods under threat of violence by a partner; possession of a controlled substance belonging to an abusive partner; carrying a knife on behalf of an abusive partner; and use of force against an abusive partner or ex-partner.

In 2017 the then Home Office Minister for Crime, Safeguarding and Vulnerability said that there needed to be ‘a root and branch review of how women are treated in the criminal justice system when they themselves are victims of abuse’. Yet the criminal law still fails to protect those whose experience of abuse drives them to offend; abuse often remains undisclosed in proceedings, or is inadequately taken into account if it is discussed at all. CWJ is therefore calling for effective defences to be introduced in the Domestic Abuse Bill, accompanied by a comprehensive policy framework aimed at identifying survivors early on, deterring inappropriate prosecutions and diverting women into support.

First, we propose a new statutory defence for survivors whose offending is driven by their experience of domestic abuse, adapted from the defence in Section 45 of the Modern Slavery Act 2015 for victims of human trafficking or modern slavery who are compelled to offend as a direct result of, or as part of, their exploitation. This requires proactive, early case management and allows all agencies to become more adept at recognising and responding to circumstances which indicate there is no public interest in prosecuting a case, or where the statutory defence is likely to apply.

Second, we propose an amendment to the law on self-defence, modelled on the provisions for householders in Section 76 of the Criminal Justice and Immigration Act 2008. This would allow survivors acting in self-defence against their abuser the same protection that is currently available to householders who act in self-defence against an intruder in the home.

Wide range of support

Our proposals are supported by the Victims’ Commissioner, the designate Domestic Abuse Commissioner and other legal experts and domestic abuse organisations.

The amendments have been tabled by Baroness Helena Kennedy QC and command cross-party support, but the government is not yet persuaded – relying instead on developing caselaw and existing checks and balances. In the meantime, victims continue to be criminalised and opportunities missed to tackle the violent and coercive behaviour to which many have been subjected, at a dreadful cost to women and their children.

Nearly three years ago, the government made an historic commitment in its Female Offender Strategy to reduce the harmful imprisonment of women who instead need support and protection in the community, and whose children need them at home. The recently announced plans for 500 new women’s prison places have shaken public confidence in that commitment; the projected increase in women’s imprisonment, which led to the decision, is largely based on the planned recruitment of more than 20,000 new police officers, and dismisses the potential impact of the Female Offender Strategy as not ‘robustly quantifiable’. However local areas like Manchester and Surrey which have innovative approaches in place to divert and support women involved in alleged offending, aligned with the Female Offender Strategy, have seen significant reductions in women’s imprisonment – particularly on short sentences.

By acting now to introduce effective defences for survivors who offend due to domestic abuse, the government would go some way to restoring public confidence that it remains determined to build on the progress already made to reduce women’s imprisonment, and ensure that survivors of domestic abuse are protected instead of being punished.