domestic abuse post
Blog, Policy briefing | 21 April 2021

Domestic abuse survivors who offend need a legal defence - here's why

It’s a sad reality that domestic abuse and criminal offending are closely interlinked. Almost two in three women in prison are survivors of domestic abuse. Some women are coerced into committing a crime under the pressure of, or in response to, their abusive partners. Unfortunately, there is currently no specific legal protection for women whose offences are linked to their being a victim of domestic violence.

We have hope. In March 2021, the House of Lords passed an amendment to the Domestic Abuse Bill that would grant statutory defence to offenders who can prove that their crimes are attributed to their being a victim of abuse. This would have granted unprecedented and much needed protection for survivors who are already victimised by their partners or relatives. In a devastating move, on 15 April 2021 the House of Commons rejected the amendment.

Following that, Baroness Helena Kennedy QC is currently advocating to seek a commitment from the government to conduct an independent review of defences for people who offend due to domestic abuse.

Working Chance believes that survivors deserve legal protection and should not be criminalised if their offences are the result of abusive circumstances.

Survivors deserve legal protection and should not be criminalised if their offences are the result of abusive circumstances.

What’s the connection between domestic abuse and crime?

The majority of women in prison are survivors of domestic abuse. The official figure is 63% but the true number is likely to be higher. About half of women in prison report having experienced abuse as a child, compared to 20% of the general population. A study by the Disabilities Trust on women at HMP Drake Hall found that an overwhelming 96% say they are victims of domestic violence.

Research shows that domestic abuse can push women to commit crimes. Sometimes, this is due to coercion from a partner. The Corston Report (2007) found that coercion by male partners and relatives is a path into criminal offending for some women. We recommend the Prison Reform Trust’s report “There’s a reason we’re in trouble”, as it further explores how domestic abuse is a significant factor in women’s offending.

Some examples include being coerced into participating in a crime by an abusive partner or relative, trying to cover up an abusive partner or relative’s crime, storing a weapon belonging to their abuser, or trying to find money to pay for their abuser’s addiction. Some women who are non-UK nationals are in prison because they have been trafficked or coerced into offending.

In other cases, women might be arrested as perpetrators, even when they are victims. It might be surprising to know that while men are responsible for most cases of domestic violence, women are three times more likely to be arrested for abuse. (Read more about this in our policy briefing on “Dismantling the Victim/Perpetrator Binary”.)

Meanwhile, there is still a lot of pressure and stigma that might prevent a woman from seeking help or even admitting that she is a victim of domestic violence. Many women may feel ashamed, or are scared of repercussions from their partner or community if they speak out. Some fear losing custody of their children. Others still are afraid they won’t be believed.

For women facing the criminal justice system, this hesitance to disclose domestic violence can have a harsh impact on their sentencing or appeal. Being a domestic abuse victim is among the mitigating circumstances that judges should consider during sentencing and appeals. But relevant information is sometimes missed at the trial stage and many women who, for whatever reason, don’t disclose their experiences of abuse until after the 28-day appeal window can face harsher sentences.

How can we address this problem?

The government has recognised the correlation between domestic abuse and women offenders. In its Female Offender Strategy (2018), the government admits that “Being a victim of domestic abuse is a predictor of violent reoffending among women”. As part of that strategy, they also announced £2 million of funding explicitly for women offenders who have experienced domestic abuse.

We think a much more effective solution is preventing women from resorting to crime in the first place, by addressing the root causes of their offending in the community.

Unfortunately, government cuts to domestic violence services over the past decade have made it more difficult for women to find safety. Meanwhile, the criminal justice system continues to prove ineffective in bringing perpetrators to justice. Of 1.3 million domestic abuse-related incidents in the year ending March 2019, 42% were not subsequently recorded as a crime.

There is lots to be done to ensure that our justice system can better protect victims of abuse. Until then, one way to help is to ensure that women aren’t made to suffer twice by being criminalised for actions caused by their situation.

What is statutory defence and how can we advocate for it?

The Centre for Women’s Justice and Prison Reform Trust have led a campaign to call for a new statutory defence to be added to the Domestic Abuse Bill. The amendment would have provided protection where someone cannot be guilty of a crime if they were “compelled to do it” and “the compulsion is attributable to their being a victim of domestic abuse”.

The amendment was approved by the House of Lords but was sadly voted down when the bill returned to the House of Commons.

The reason given by MPs for rejecting the amendment was that such a defence exists elsewhere in law. However, the evidence shows that alternative defences are difficult to apply to women who are survivors, and not many cases are successful in doing so. Simply put, the law as it stands does not serve survivors of domestic abuse and the Domestic Abuse Bill is a missed opportunity to solve this problem.

Simply put, the law as it stands does not serve survivors of domestic abuse and the Domestic Abuse Bill is a missed opportunity to solve this problem.

That said, the fight is far from over. Baroness Kennedy, a chief proponent of the defence, is speaking to the House of Lords on Wednesday, 21 April 2021, in support of a new amendment that aims to secure a commitment from the government to review the effectiveness of existing defences for victims of domestic violence and the need for any legislative reform. The goal is to push for a firm commitment by the government to take action on the issue, starting with this review.

There are also other avenues that we can take, including by advocating for the measure to be included in the Police, Crime, Sentencing and Courts Bill. We can also raise awareness about the vulnerabilities faced by victims of abuse that can lead to criminal offending. We encourage everyone to contact their MP to let them know that a statutory defence is an important and necessary step to protect survivors of domestic violence.

As long as there is no legal defence available, women who offend due to domestic abuse will continue to be criminalised. Together, we can break the link between violence against women and criminalisation.