Legal Updates

Emergency Numbers and Websites Giving Assistance to Victims of Domestic Violence

It is important that help is sought at the first instance from police if you are a victim of abuse and/or contact the local emergency medical services at a local hospital.

Victim support call 0845 30 30 900

Shelter, for housing advice call: 0800 800 4444

Samaritans call: 08457 909090 – this is a nationwide charity which provides 24-hour confidential support for anyone in facing a crisis.

National Child Protection Helpline (NSPCC) call: 0800 8005000 – This is a free and confidential service for anyone concerned about children at risk, including children themselves. The service offers counselling, information, and advice.

Women’s Aid: Women’s Aid is the national domestic violence charity. 24-hour National domestic violence helpline call: 0800 2000 247

In addition, victims that also have immigration issues must immediately seek independent legal advice to regularize their immigration status. Some useful organisations giving practical and legal information on immigration, asylum, financial support and domestic violence:

Asylum Aid call: 020 7354 9264

Refugee Council, switchboard call: 020 7346 6700

Refugee Women’s Association call: 020 7923 2412

Rights of Women Immigration and asylum law advice call: 020 7490 7689

Domestic violence is not specifically limited to Muslim societies, but it affects all societies, classes and cultures. It is also common within Jewish and Christian communities. The fundamental issue is to seek immediate help and ‘never suffer in silence’.

In the UK, the Home Office in March 2013 introduced a new official definition. The definition includes young people aged 16 to 17 and coercive or controlling behaviour. (Home Office, Cross-government definition of domestic violence consultation, 14 December 2011, see further, Gov. http://www.gov.uk/guidance/domestic-violence-and-abuse  accessed 12.04.2017, Section 76 of the Serious Crime Act 2015 came into force in December 2015 and criminalizes coercive and controlling behavior).

The new definition now reads:

Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality (UK definitions of domestic violence, http://www.taeterinnen.org/en/05_ukdefinitions.html accessed on 20.10.2014).

The New Domestic Abuse Act 2021

Domestic abuse impacts many people at various points during their lives. The Crime Survey for England and Wales estimated that in the 12 months preceding March 2020, 5.5% of adults aged 16 to 74 years old experienced domestic abuse – that works out at 2.3 million people.

The Domestic Abuse Bill was promised in the Queen’s Speech 2017. Four years later, the Domestic Abuse Act 2021 was finally signed into law on 29 April 2021. The Act aims to provide further protection to victims of domestic abuse, as well as strengthening measures to deal with perpetrators. A number of provisions came into force on the day the Act was passed, and as of 1st October 2021 a further set of provisions have come into force, and which are of particularly pertinence in Family Law proceedings. These include some key definitions of what counts as domestic abuse, how the parties must be related or know each other, special measures for victims of domestic abuse in family proceedings, local authority support, and prohibiting expenses for medical evidence.

The Domestic Abuse Act states that for something to be classed as domestic abuse, there must be three components:

• The perpetrator and victim are both aged 16 or over;
• The behaviour is abusive; and
• They have a relationship that makes them ‘personally connected’.

Abusive behaviour consists of any of the following:

Physical or sexual abuse – this may include where one person carries out physical or sexual acts without consent.

Violent or threatening behaviour – the perpetrator does not necessarily have to carry out the behaviour, but it is still abuse if it is threatened.

Controlling or coercive behaviour – the Explanatory Notes of the Domestic Abuse Act explain that:

• Controlling behaviour is ‘a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour’.
• Coercive behaviour is ‘a continuing act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten their victim’.
• The case F v M [2021] explains the difficulty of understanding this type of behaviour, and how it is preferable for the Court to isolate incidents and then look at them in context to understand their greater significance.

Economic abuse – the Act explains that this means any behaviour that adversely effects the victim’s ability to ‘acquire, use or maintain money or other property’ or ‘obtain goods or services’.

Psychological, emotional or other abuse – abuse may be verbal and designed to impact the victim psychologically and emotionally.

It is irrelevant whether the behaviour occurs as a single incident or a course of conduct. The behaviour may still be towards the victim even if the conduct is directed at someone else, for example, the victim’s child.

SPECIAL MEASURES FOR VICTIMS OF DOMESTIC ABUSE IN FAMILY PROCEEDINGS

The Domestic Abuse Act recognises that being a party to proceedings involving domestic abuse can be difficult for the victim. The Act, therefore, introduces an assumption that the quality of a person’s evidence and their participation in the proceedings are likely to be diminished by reason of vulnerability. This applies when the person is a party or witness in family proceedings and is, or is at risk of being, a victim of domestic abuse.

This is applicable if the person is, or is at risk of being, a victim of domestic abuse by:

• A party to the proceedings;
• A relative of a party to the proceedings; or
• A witness in the proceedings.

As a victim of domestic abuse, the victim will be automatically eligible for access to special measures. The type of measures that may be used can be found in the Family Procedure Rules, for example:

• Preventing a party/witness from seeing another party or witness;
• Allowing a party/witness to participate in hearings and give evidence by live link;
• Providing for a party or witness to participate in proceedings with the assistance of an intermediary; and
• Providing for a party or witness to be questioned in court with the assistance of an intermediary.

Home Office Definition of Domestic Abuse

The Home Office further states that, ‘this includes issues of concern to black and minority ethnic (BME) communities such as so called ‘honour-based violence’, female genital mutilation (FGM) and forced marriages’ (Ibid)

In 2012-13, there were 1.2 million females and 700,000 male victims of domestic violence in England and Wales. The Crime Survey for England and Wales (CSWE) suggests that 30 per cent of women and 16.3 per cent of men in England and Wales (CSEW) will experience domestic violence in their life time. This is equivalent to 4.9 million females and 2.7 million male victims. The CSEW report confirmed that 1 in 10 respondents felt that it was mostly or acceptable to hit or slap their partner in response to their partner having an affair, and 21 per cent of victims of partner abuse reported it to the police.

Women’s Aid (domestic violence charity) published their survey in December 2013 and their report confirmed an estimated 15,000 women stayed in a refuge service in England in 2012/13 (Women’s Aid Survey, 2013). In 2014-15 (CSEW), there were 1.3 million females and 600,00 male victims (John Woodhouse and Noel Dempsey, Domestic violence in England and Wales, Briefing paper no.6337, May 2016 http://researchbriefings.files.parliament.uk/documents/sn06337/sn06337.pdf accessed 12.04.2017).

A joint report by Professor Shazia Chaudhry and Women’s aid showed how the culture of the English courts can reinforce the inequalities and oppressive social constructions of the family (Joint report with Women’s Aid England (2018), “what about my right not to be abused?” Domestic abuse, human rights and family courts, p.29 available and accessed on 08.11.2018 at https://www.womensaid.org.uk/research-and-publications/domestic-abuse-human-rights-and-the-family-courts/)

In the year ending March 2020, an estimated 2.3 million adults aged 16 to 74 years experienced domestic abuse in the last year (1.6 million women and 757,000 men).

The cumulative effect of small year-on-year reductions, including a significant decrease in the year ending March 2009, has resulted in a significantly lower prevalence of domestic abuse experienced by adults aged 16 to 59 years in the year ending March 2020 (6.3%), compared with the year ending March 2005 (8.9%).

The cost of domestic abuse is estimated to be approximately £66bn for victims of domestic abuse in England and Wales for the year ending March 2017.

Marital Rape

Marital rape is a form of domestic violence and sexual abuse. This is a very serious issue faced by many Muslim women and the Islamic position on this varies depending on each School of thought. There are specialist organisations to assist such women.

However, the position under English law is very clear and it constitutes to be a criminal offence. Regrettably, many Muslim women are enduring sexual violence in relationships (nikah only marriages). Muslim women in registered marriages are also failing to report sexual or marital rape due to the stigma attached and fear of ostracization within the community and/or lack of knowledge about this constituting to be a criminal offence. Many women choose not to report the matter for fear of the shame brought upon them or their families. This is due to cultural and community barriers.

It is particularly a common trend among Muslim women that have migrated from Muslim majority countries. However, there are many second and third generation Muslim women that choose to endure sexual violence and never report to the police or pursue a claim under the English legal system.

Some Muslim women have been informed incorrectly by scholars that there is ‘no such thing as marital rape’. This has deterred Muslim women from reporting sexual abuse/rape to the authorities. Another common problem is that most victims remain silent and ‘Justice for Sisters in Islam’ seeks to break this silence and bring awareness of these women’s legal rights under both the Criminal justice system and Islam. It is understandable that these women do not wish to become public about the abuse suffered. Most women wish to put all this behind and move on with their lives. Prolonged violence and abuse can be traumatic for these women.

Position under Islamic Law

In the Qur’an, it is clearly stated in Q.30:21 ‘He created for you from yourselves mates that you may find tranquility in them; and He [God] placed between you [spouse] affection and mercy.’ This verse is plainly making it clear that marital violence or rape is forbidden in Islam. There is a particular, verse in the Qur’an Q.4:34 which has been explored by ‘Justice for Sisters in Islam’ and will invite discussion on this as a workshop.

However, there is a difference of opinion on the compensation awarded and Hina Azam has explored this from classical Islam (Azam, 2015). The purpose is that any marital abuse is a form of transgression and both the Qur’an and Sunna forbid this. This has been emphasized in the Sunna, A’isha Bint Abi Bakr and the such acts are contrary to the egalitarian principles of Islam.

Position under English Law

Historically, sexual abuse or rape within marriage was regarded as rights of spouses (conjugal rights – in English common law) including British societies. The principle of marital exemption to the law (promulgated in 1736 in Matthew Hale’s ‘History of the Pleas of the Crown’ of rape but it was in 1991 when it was overturned by the House of Lords in the case of R v R [1992] 1 AC 599.

The marital rape exemption was inconsistent human rights and gender equality laws. In 2006, the UN Secretary-General’s in-depth study on all forms of violence against women. In 2011, the UN Women report Progress of the World’s Women: In Pursuit of Justice stated:

‘By April 2011, at least 52 States had explicitly outlawed marital rape in their criminal code’.

However, this position soon changed with international conventions and increasingly criminalized. The reluctance to criminalize and prosecute marital rape has been attributed to traditional views of marriage interpretations of religious laws and cultural subordination of a wife to her husband – this continues throughout the world. These views began to be challenged from the 1960’s and 70s.

In 1994, a new definition of rape was created by Section 142 of the Criminal Justice and Public Order Act 1994, providing a broader definition that included anal sex; and an even broader definition was created by the Sexual Offences Act 2003, including oral sex. However, in 1993, in R v W [1993] 14 Cr App R (s) 256, the court ruled: ‘It should not be thought a different and lower scale automatically attaches to the rape of a wife by her husband. Al will depend upon the circumstances of the case. Where the parties are cohabiting, and the husband insisted upon sexual intercourse against his wife’s will but without violence or threats this may reduce the sentence. Where the conduct is gross and involves threats or violence the relationship will be of little significance.

In 2010 the Crime and Security Act 2010 in England introduced: Domestic Violence Protection Notices (DVPN) and Domestic Violence Protection Orders (DVPO) to give police more powers to act quickly to protect victims. Under DVPO, the police and magistrates can ban a perpetrator from returning to their home and from having contact with the victim for up to 28 days. Section 76 of the Serious Crime Act 2015 came into force in December 2015, which criminalises coercive or controlling behaviour where they are perpetrated against an intimate partner or family member. The Protection from Harassment Act 1997 (as amended) provides both civil and criminal remedies. These include non-harassment and restraining orders. Shari’a Councils and the Muslim Arbitration Tribunal need to be involved actively and there can be a positive relation built to refer them to appropriate organisations for help.

There is a DVPOs and DVPNs were rolled out across 43 police forces in England and Wales in March 2014 (DVPO Report ‘one year on – Home Office Assessment of National Roll-Out ‘ (http://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/506148/2016-03-08_DVPO_report_for_publication.pdf accessed 5.1.2019)