The United Nations describes domestic abuse as “a pattern of behaviour in any relationship that is used to gain or maintain power and control over an intimate partner”. According to the World Health Organization, domestic abuse affects one-in-three women globally. It is, therefore, no surprise that domestic abuse has been referred to as the world’s "hidden pandemic". Within the United Kingdom, domestic abuse impacts over one million women each year, with multiple lockdowns causing abuse cases to rise by 10% compared to pre-March 2020 levels. On 29 April 2021, the landmark Domestic Abuse Act 2021 (DAA 2021) was signed into law, with the aim of providing further protection to domestic abuse victims, as well as strengthening measures to tackle perpetrators. It is hoped the law, over time, will help abuse victims re-establish faith in the criminal justice system and, most importantly, protect them from gross violations of their human rights.

THE DOMESTIC ABUSE ACT 2021

The DAA 2021 is considered a landmark piece of legislation primarily as it is the first time in UK history that such a wide-ranging legal definition of what behaviour constitutes “abuse” has been codified. Under section 1(3) of the DAA 2021, abuse can include physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic control, and psychological, emotional, or other abuse. The act also states that it “does not matter whether the behaviour consists of a single accident or a course of conduct". The DAA 2021 also extends protection to people suffering domestic abuse post-separation by expanding the definition of “personally connected” (which English law requires of a perpetrator for abuse to qualify as domestic) to include ex-partners and family members who do not live together. These provisions acknowledge that the gravity of domestic abuse does not depend on how long the abuse has been happening and that abuse only ends when concrete steps by relevant authorities are taken to investigate and prosecute perpetrators, not when two people end their relationship.

New protections afforded to victims also include prohibiting alleged abusers from cross examining their victims as well as police officers being given the power to provide Domestic Abuse Protection Notices, which provide immediate protection to victims, requiring abusers to leave the family home for up to 48 hours. The DAA 2021 has also introduced the specific criminal offence of non-fatal strangulation, which carries a prison sentence of up to five years; extended “revenge porn” legislation to include the threat to disclose intimate images with the intent to cause distress; and abolished the “rough sex” defence that has seen victim’s legitimate cases of domestic violence being dismissed by both the police and the Crown Prosecution Service.

THE HUMAN RIGHTS IMPLICATIONS OF THE DOMESTIC ABUSE ACT

Domestic abuse is arguably the most intimate of violations a woman can suffer, with violations of the right to life; the right to be free from cruel, inhuman, and degrading treatment; as well as the right to respect for private and family life occurring in such cases. Though it is important to note that while statistically women are most likely to be subjected to domestic abuse, anyone can find themselves facing abuse, a fact reflected in the DAA 2021 through its use of gender neutral terms across the provisions.

Men and women are not the only victims of abuse, with children that witness domestic abuse within the family home traumatised even if they are not the intended target of the abuse. It is significant that, per section 3 of the DAA 2021, children are now recognised as being victims rather than mere witnesses if they experience, see, or are subject to abuse within the family home. The recognition that child witnesses are victims of abuse is an important addition to legislation that is likely to have a positive impact in protecting children’s human rights even in other areas of law, namely in child contact proceedings involving domestic abuse. Currently, in light of the statutory presumption that parental involvement furthers the welfare of a child, many judicial decisions regarding Child Arrangement Orders have seen judges dismiss claims of domestic abuse within the family home, allowing unsupervised contact between a child and their violent parent. This has resulted, according to two Women’s Aid studies, in the avoidable deaths of approximately 48 children between 1984 and 2015.

The DAA 2021 is thus a welcome, though long overdue, piece of legislation that has finally provided what can be considered concrete provisions in the attempt to combat domestic abuse. Though not perfect, with some proposed amendments including the strengthening of standards in child contact centres (neutral meeting places for children and parents) being left out of the Act, the DAA 2021 brings England and Wales’ protection of abuse victims in line with the international standard of protection imposed by the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, which the UK has signed but not ratified. While it remains to be seen whether this legislation will have the intended effect of protecting abuse victims, it is hoped that the provisions within the DAA 2021, especially the acknowledgement of the breadth of different behaviour that can constitute abuse, will encourage more people to report abuse, resulting in greater criminal investigations and prosecutions of perpetrators. 

Leila M is an aspiring solicitor. She recently graduated from Queen Mary University of London with an LLM in Human Rights Law. Leila is interested in international human rights law, as well as human rights specifically within the context of medical and family law.

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