End The Unjust Criminalisation Of Victims Of Abuse

November 22, 2021

What is our criminal justice system for, and who does it protect? When victims of crime are forced directly or through circumstances of being in a controlling relationship to commit an offence as part of, or as a direct result of their victimisation, why should they face arrest or prosecution?

Last week I looked at the failure of the police and other criminal justice agencies to implement the laws, policies and procedural guidelines that exist to tackle violence against women and girls. Probably the most egregious failure arises where victims are treated as offenders. We see this at every stage of the criminal justice process, from police called out to ‘domestic’ incidents and arresting the victim rather than the perpetrator, right through to victims of historic child sexual exploitation continuing to be stigmatised by having to disclose criminal convictions that arose from their abuse.

Earlier this year CWJ published our report, ‘Women who kill, how the state criminalises women we might otherwise be burying’. Although a relatively small number of women kill their male partners every year, the detailed research study shines a light on how the criminal justice system discriminates against women through its utter failure to understand the dynamics of violence against women and underlying causes which are rooted in structural inequality between men and women. Furthermore, women from black and minoritised backgrounds face additional discrimination due to racism and unconscious bias. The report shows that nearly 80% of women who kill men suffered violence and abuse from the deceased. Yet despite this only 7% were acquitted on grounds of self-defence , 46% convicted of manslaughter and 43% murder, resulting in extremely lengthy prison sentences. The report examines each step of the criminal justice process from arrest through to prison and parole revealing how a system designed to deal with male offenders (who comprise the vast majority of violent offenders) cannot respond fairly or justly to women, particularly those who are violent.

The pattern of failures and discriminatory treatment identified in our report on Women who Kill is played out repeatedly in prosecutions for offences less serious than homicide. For example, ‘Effie’ a migrant woman we are advising, was criminalised after her British partner – who had been physically and psychologically abusive towards her for months – called the police out to their home, alleging that she had physically injured him during an argument. At the time of her arrest safeguarding concerns had already been raised recognising that she was at ‘high risk’ of harm from her partner, yet instead of investigating who the ‘primary’ perpetrator in the relationship was, the police arrested her and imposed strict bail conditions which rendered her homeless and separated her from her breastfeeding child. She was convicted of assault, although successfully appealed.

CWJ sought to introduce two amendments to the Domestic Abuse Bill which would create new statutory defences for women prosecuted for offences committed as a consequence of being subject to abuse. The House of Lords voted in favour of these amendments, but the government opposed them. The first amendment aimed at extending the so-called ‘householder defence’ available where a householder is confronted by a burglar and uses disproportionate force to defend himself. We proposed this defence should be extended to circumstances where a victim of domestic abuse uses ‘disproportionate’ force to defend herself from the abuser. We found in our research on women who kill that most women used a weapon when confronted by an unarmed physically stronger and habitually more violent attacker, yet the use of a weapon would usually be regarded as disproportionate force so self-defence would fail and even attract an increased sentence because the offence was ‘aggravated’ of the use of a weapon.

The second defence we are seeking to introduce is modelled on a defence under the Modern Slavery Act 2015 which recognises that trafficked victims may be forced to offend on account of having been a victim of a trafficker.

We must ask why the CPS persist with the prosecution of women who are clearly victims of abuse. What purpose is served where the only reason she offended was because of being victimised in circumstances where she would otherwise represent no risk. 

The availability of such defences ought also to dissuade the Crown Prosecution Service from prosecuting some of these offences. The CPS, have a two-stage test for making decisions to charge. They must first consider whether the ‘evidential test’ is met (there must be a reasonable prospect of conviction on the evidence available). If the evidential test is met the CPS then go on to consider the public interest test which means they can decide not to prosecute a case if not in the public interest. This provides an opportunity, even in the absence of available defences, for the CPS to decide not to prosecute a victim of domestic abuse who offends when under coercion and control. Yet the public interest test is rarely applied, and we must ask why the CPS persist with the prosecution of women who are clearly victims of abuse. What purpose is served where the only reason she offended was because of being victimised in circumstances where she would otherwise represent no risk.

Another alarming example of the criminalisation of victims of abuse occurs when some women are prosecuted for wasting police time or perverting the course of justice. When reporting a crime of violence against them, women, in particular those with mental health problems or other additional vulnerabilities, may be disbelieved. These women are routinely targeted by abusers, yet when they report a crime they may be somewhat incoherent or inconsistent which can seem to undermine the veracity of their account, but this should not lead to their automatic prosecution.

We know that women’s prisons are full of victims of abuse. And it is often not just the woman who is punished , frequently she will have children or others relying on her care from whom she will be separated. Furthermore, as the just published Prison Reform Trust report, Invisible Women has found, women serving long, indeterminate sentences, have ‘life histories read as catalogues of suffering and abuse’.

And it is not just the period in prison which is punishment, criminal convictions will stay on the police national computer until the offender reaches the age of 100, regardless of the offence they were convicted of, and most convictions will be disclosable under the Disclosure and Barring Scheme when applying for work and volunteering with vulnerable people. Our legal challenge in the case known as ‘QSA’ related to the mandatory retention and disclosure of historic convictions arising from street prostitution. Many women who were abused, often initially as children, by pimps and punters have to live many years after their escape from that abuse with the shame and stigma of these lifetime ‘criminal’ convictions. Two of the women involved in the legal case have now started the HOPE campaign seeking to expunge all criminal records arising from street prostitution. We would also like to see similar mechanisms available allowing victims of domestic abuse to apply to filter or expunge those convictions arising from their abuse.