'Domestic' violence - gender, truth and lies
More thought on the corrosive impact on public debate, law and policy when what is not true, or not known to be true, is nevertheless promoted as absolute truth
I am writing this here and not on Child Protection Resource, because I suspect it is going to stray into discussion of wider issues than the law around child safeguarding. The discussion around issues of ‘domestic’ violence has been extensive and widespread as the Domestic Abuse Bill continued its journey into law. I don’t intend here to unpick each section, but rather highlight some of the themes that have over the months jumped out at me, causing me alarm and unease. I share these thoughts here, in case you feel uneasy too.
I was prompted to write this following examination of the transcripts from the speakers at the Westminster Legal Policy Forum (WLPF) on February 10th 2021 which permits extracts to be used for ‘academic or review’ purposes, provided they are accurate, not used in a misleading context and the author is acknowledged. I will send a link to this post to the WLPF who no doubt will inform me if I have offended against any of these conditions.
Statistics about domestic abuse
I say at the outset that I really dislike the phrase ‘domestic abuse’ and I think its been directly responsible for the historical minimisation of the serious impact that violence in intimate partner relationships has on the individual and on society. But I think we are stuck with it, so its the phrase I will use. I also have no doubt about just how prevalent and serious it is. Statistics covered at the WLPF showed that in the year ended March 2020, 5.5% of adults (people from 16-74 years) experienced domestic abuse which is about 2.3 million adults.
There was a lot of discussion about the impacts of COVID 19 which I won’t attempt to analysis here. My understanding was that there was certainly a surge in referrals but as Kathryn Littleboy commented:
‘There’s generally been a large increase in demand for domestic abuse victim services during the pandemic… this doesn’t necessarily indicate an increase in the number of victims, but perhaps an increase in the severity of abuse being experienced, and a lack of available coping mechanisms such as the ability to leave the home to escape the abuse….’
Is domestic abuse ‘gender neutral’?
I think its clear that this is NOT a ‘gender neutral’ crime. As Kathryn Littleboy observed: ‘when breaking down by sex’, 7.3% of women and 3.6% of men experienced domestic abuse’.
I appreciate there is an argument that men under report abuse from partners but again we have to be careful of this weasel word ‘abuse’ - what does it actually cover? Reference to homicide statistics showed 64 domestic homicides in England and Wales between January and June 2020, of which 30 occurred in period of April to June during the first COVID 19 lockdown. Compared to the first six months of 2019 that’s a slight increase but compared to first six months of 2018 its a slight decrease. The homicide stats were not broken down by ‘sex’ but judging from other statistical information about the prevalence of female murder by male partners, I assume the majority of those homicide victims in the domestic setting were women.
But again, the conflation of ‘sex’ and ‘gender’ is embraced by all speakers. David Johnston MP asked the panel to agree that ‘domestic abuse’ should not be ‘gender neutral’ as it affects far more women than men. Nicki Norman agreed that we should recognise the ‘gendered nature’ of domestic abuse and failing to do that was a disservice to male and female victims. Their experiences were likely to be different, in different contexts and thus the support they need might be different. She noted that the evidence base and international framework recognises this. I agree.
But what exactly are they talking about here? Categorising victims by their ‘sex’ or by their ‘gender identity’? The two are very different things and I am concerned that the distinction between the two have been deliberately blurred by those who see an advantage in the erasure of ‘sex’ as a category of classification and who wish to substitute it for a rather more flexible concept of ‘gender identity’, into which people can opt in or out of at will.
I am not aware Women’s Aid or indeed ANY of the mainstream campaigning groups against violence against women have expressed a view on the dangers of the sex/gender conflation, other than to support men who wish to identify as women. We really need to grapple with this and urgently. I hope the recent successful challenge by Fair Play for Women against the ONS will open the floodgates.
As Praga Patel noted, the implications for muddling up sex and gender can be even more dangerous for migrant women who are already excluded from many of the protection duties, such as provision of safe accommodation.
Further, Mark Brooks from the ManKind Initiative talked about the ludicrous situation where male victims of domestic abuse are classed by the Government as being a victim of a crime against a woman or a girl and the importance of separate strategies for male victims.
Mandatory Polygraph Testing
This one is very odd. The Government wish to commence a three-year pilot of mandatory polygraph examinations on “domestic abuse perpetrators released on licence identified as being at high risk of causing serious harm”. The claim is that such testing has worked ‘successfully’ with sex offenders since 2013 but no detail is given in the fact sheet dated August 2020. That document claims:
It works by measuring the physiological changes in the body when the individual being tested is asked certain questions. The polygraph instrument measures changes in heart rate, blood pressure, respiratory rate and sweat and the changes to the individual’s normal rates can indicate the subject is attempting to be deceptive.
So a polygraph doesn’t measure if someone is telling the truth or not - it measures arousal. Some people - psychopaths for example - find it very easy to tell massive whoppers without showing any signs of physiological arousal. I would assume that a fairly large proportion of perpetrators of intimate partner violence will also show traits of psychopathy. The results of the three year trial I hope will be transparently disseminated.
I believe you - no question about it
I started with a comment on polygraph testing, because its so odd to see it here. Such testing does not have an established place in our criminal justice system, as it does in the US, because so many doubt its reliable use as a tool for ferreting out liars. But the inclusion of this trial in the Domestic Abuse Bill and the apparent lack of any discussion about it, does seem part of what concerns me most about these discussions around domestic abuse - that the language used is of ‘victims’ and ‘perpetrators’ and that the presumption of innocence is jettisoned immediately in favour of a policy of ‘believing’ victims. The ‘perpetrator’ must be guilty, so efforts become focused on proving that rather than carrying out an impartial investigation.
That this policy has crashed and burned many times with truly disastrous consequences does not seem to worry many at this Forum. It is not and never can be the role of investigators or lawyers to ‘believe’ some one is a victim. Their job is to prove (or disprove) it. Of course victims must be taken seriously. But setting off at the outset by requiring a seal of moral approval for your victim is simply wrong. It is the obligation of your friends and family to provide you with that kind of support, rather than a professional obligation on your lawyer. All alleged victims have a right to a fair and swift investigation but no one has a right to be believed in any court or forensic process.
Jan Pickles said:
‘It’s important that you believe people when they tell you things, and they’re only going to tell you a little piece, little pieces of information….’
Tied in with this assumption of guilt and ‘belief’ at the outset, is the denial of the right of the alleged ‘perpetrator’ to directly cross examine the alleged victim in court. I agree that it is wrong and likely to be traumatic if individuals have to carry out cross examination of either their victim or their perpetrator in court. They are not trained to do so, they will carry inevitably an emotional weight that will impede their ability to structure an effective cross examination. I have also no doubt that some perpetrators would actively relish the opportunity to continue their abuse in a court setting and force someone to repeat details of horrible experiences. But none of these concerns are sufficient to jettison our basic Article 6 rights. I have seen no flesh at all on the bones of any suggestion that ‘perpetrators’ will be able to get legal help to challenge allegations made against them.
David Johnston MP at the WLF simply stated ‘I’m pleased that we now have passed the Domestic Abuse Bill that will…stop victims being cross examined by their abusers’
Nicki Norman of Women’s Aid stated:
Survivors tell us that they are re victimised and re truamatised by the family courts where the approach to domestic abuse differs significantly from the criminal courts. 24% of survivors [in 2017] have been directly cross examined by their perpetrator.. I’m sure you can imagine just how frightening this experience is…’
Claire Waxman clearly favours a complete reversal of the presumption of innocence:
‘…they’re obviously banning the cross examination of victims by perpetrators, which is very much welcomed… Women’s Aid have talked about a new clause which will seek to change the presumption of contact where there’s been domestic abuse and to prohibit unsupervised contact for anyone that’s been accused of domestic abuse and awaiting trial’
I have no doubt that it is incredibly frightening and traumatising for a ‘survivor’ to be directly questioned by their abuser. However, cross examination is required because at the time it is being done the court have not decided who is the ‘survivor’ and who is the ‘perpetrator’. The allegations and the evidence have to be tested. Any of us who were accused of anything serious in court would presumably want nothing less. The presumption of innocence is a vital part of our criminal justice system and should be no less important in civil proceedings with such high stakes, such as an ongoing relationship with your children or determining which parent is putting the children at risk of either serious mental or physical abuse.
I agree that there should not be direct questioning of alleged victims by alleged perpetrators in either the criminal or civil settings. But only one person at the WLPF event was able or even apparently interested in how the rights of the alleged perpetrator were to be secured and even then the speaker referred only vaguely to the ‘devil in the detail’ of identifying and funding the qualified legal representative who will be needed to take over direct cross examination.
The Government removed the right of publicly funded legal representation in vast swathes of civil litigation in 2012 and I am afraid I am not remotely reassured without significantly more detail, that they are willing to restore any part of this. There is an urgent need to tell us how the Article 6 ECHR rights of all are going to be secured.
Show me the money
This is a tricky one. I don’t doubt that many charities and lobby groups do excellent work. I don’t doubt that many are not given the funding they need. But equally I do not doubt that chasing funding becomes in and of itself corrupting. Stonewall is a very obvious and very worrying example. And I worry whether that is happening here.
Many speakers referenced the ‘financial crisis’ facing the ‘sector’. There has been investment in a ‘short term’ and ‘emergency basis’. What is needed said Nicki Norman is a ‘funding response to make sure that there is a stronger, more robust and sustainable sector ready to soak up’. When this goes hand in hand with increased demands for ‘more training’ of judges and lawyers to ‘better understand’ what domestic abuse is, then I do worry. I hope that there is going to be transparency and openness about who is offering this training and what exactly it costs. The Government must continue to be very wary of handing over the reigns of law and policy to third sector organisations with a clear vested financial interest in the produce they are selling.
I was particularly interested to see Clare Waxman, the Victims Commissoner for London introduced as someone who had had ‘issues with a stalker’ for 12 years. I had not known this. But it sheds a little more light on some of the public pronouncements Ms Waxman makes and her propensity to block those who challenge or disagree. To the (wo)man with a hammer - everything is a nail.
No strategic approach to perpetrators
Its one of the enormous weaknesses and significant dangers in this debate that the assumption that anyone (man) accused of violence at the outset is simply a perpetrator without need for proper investigation. But the next most worrying thing, as the speakers recognised, is that once that person (man) has been identified as a perpetrator - what do we do with them (him)? Promise Knight pointed out that less than 1% of perpetrators receive a specialist intervention to challenge or change their behaviour. The DA Bill is lacking a ‘strategic approach’ to perpetrators (other than reliance on polygraphs!).
I keep saying this, because I think its so clear and so worrying, that violent people (men) are simply seen as something inescapable, like the weather. We can’t stop it raining, so just buy an umbrella. Is this really true? Are violent people (men) born or made - or a combination of both? Is there really nothing we can do about this, other than give Women’s Aid more and more funding and build more and more refuges - and then argue about who we let in once ‘gender’ subsumes ‘sex’ entirely?
And Lynne Townley seemed to be the only speaker to touch upon another of my hobby horses - the sheer inappropriateness of any court system to actually tackle why people hurt others in intimate relationships. She noted that no matter how many special measures provisions that are brought in to make it ‘victim friendly’, the court process is daunting. After care and long term support are needed. She said:
And I don’t think that a conviction in many cases gives the victim closure either, the wounds are too deep.
There was no discussion that I can see about how as a society we tackle this enormous problem of the men who hate women and the women who seem to think they deserve nothing better. This won’t be solved in our current or any court system.
Lynne Abrahams from the Home Office talked about a proposed £10 million investment in perpetrator services and support for survivors and correctly noted that it was therefore very important to make sure that perpetrator programmes actually work.
The family courts as vehicles of oppression that ignore children
Of all the presentations, I probably found the one from Emma James the second most concerning. She is a senior policy and research office for Barnados. So she ought to know what she is talking about. She stated that children ‘have for far too long been forgotten victims, silent victims…’. That isn’t my experience. It has long been accepted that children suffer serious from being bystanders to adult violence.
She said family courts
are a vehicle for perpetrators to continue in contact with children… even worse children are being put at significant physical risk by contact decisions made by the family court. Barnardos Services told me at the shock of children they support having unsupervised contact granted with domestic abuse perpetrators even when that child has made disclosures about sexual and physical abuse. Had family courts consulted with organisations like Barnados, who work closely with this family day on day, these decisions would not have been made…
The only thing I can think that is going on here as that Ms James does not understand the difference between an allegation and a fact. It is simply not true that those found to be guilty of violence or sexual abuse are given unsupervised contact with children. But it does happen that the court examines the allegations made by children and finds that they are not true. The court then, as it must, makes efforts to restore the relationship between the children and the parent who has been falsely accused. There are sadly many 100s of cases which ran into serious trouble because of the arrogance and naivety of outside agencies who thought they knew better than a court who had taken the time to examine all the written and oral evidence available. There are some horrible examples set out here.
Ms James makes the astonishing claim that
Adult victims from our services have told me that the court worker [said] just because her husband had committed unspeakable abuse on her did not mean he wasn’t a good father
I simply do not believe that happened. No professional in the system I have worked in over 20 years has ever claimed that a man who is violent to his children’s mother is a ‘good father’. That’s obvious nonsense and judges have pointed this out in reported cases over and over again. What I suspect happened here is that the mother had a very clear view that she had been abused - but the court did not agree. While of course the courts are not infallible and can get things wrong - and that may have happened here - I do not think that excuses Ms James from making such inflammatory comments.
She relies upon the Women’s Aid report about 19 child victims of homicide as a study of
‘killers who were all sick abusers and all had access to the child by child contact arrangements’
This is simply untrue, but its a depressingly common misrepresentation which has now, in certain circles become an unassailable mantra. The Women’s Aid research ignored those Serious Case Reviews where children had been killed by their mothers and the fact that only a handful of children were killed in any proceedings where there was an actual order from the court about contact. To point this out is not to be dismissive or uncaring about the tragedy of a child dying in such circumstances. But it is necessary to make it clear that it is very rarely the courts that are to blame for a child being murdered and to insist otherwise and demand law and policy operate to support this insistence, is a fool’s game.
I was further concerned to see a throw away comment from Lynne Townley that
‘… the overall message is that you must listen to children and provide them with a better environment in court to actually be able to give, given evidence in court and actually they need to feel that they’re believed as well’.
Has anyone actually thought this through? There is a wealth of reported cases around issues of parental alienation which show that many children are manipulated into saying things that are not true. How on earth is it any solution to encourage more of these children to become active participants in a court arena? That risks compounding the terrible emotional harm these children already suffer.
But of course, issues of parental alienation got no air time at all. I found only one throwaway reference to it. It does not fit within the narrative structures of many of the speakers, to the extent that some will deny its existence at all.
Shazia Choudhry then claimed that section 7 reports were ‘rarely directed’ by the courts, but provided no evidence for this claim.
The most disturbing contribution came from Claire Waxman. She said
The victims that I speak to do describe the family court proceedings as state sanctioned abuse, not my words, those are the words of victims. I’ve spoken to victims who are trapped in a family court for some even close to a decade where their abuse is bing overlooked and dismissed and the harm to the children has been overlooked and dismissed
This is simply untrue. Again, Ms Waxman falls into the same trap as Ms James. The only cases I have experienced which drag on until the children age out of the system are those where the allegations of violence and abuse have not been found proven and the court then continues with increasingly doomed and desperate attempts to restore a relationship between the child and parent falsely accused. That the process drags on for so long is of course terrible and we have to stop this. But to say it drags on because abuse and violence is ‘ignored and dismissed’ is simply a perversion of the truth.
I bang this drum with weary repetition. But if we don’t stop allowing third sector campaigning groups to decide our law and policy on matters of such significance, then frankly we deserve what we get. I think what we urgently need is clarity about whether people want to protect women as a ‘sex’ or people as a ‘gender’ and we need to accept that law and policy is made on evidence, not personal prejudice fashioned into some statement of ineluctable truth.