‘A leap forward’? Critiquing the criminalisation of domestic abuse in Northern Ireland

Rachel Killean

Domestic abuse is recognised globally as an issue of public concern with human rights implications which causes a wide range of serious physical and psychological effects for victim-survivors and their children. With COVID-19-related stress, restricted movement, social distancing and self-isolation placing people living with abuse at even greater risk, debates about meaningful responses to this phenomenon have never been more crucial. My early open access article in the winter 2020 issue of the Northern Ireland Legal Quarterly introduces the Northern Ireland Domestic Abuse and Family Proceedings Bill and analyses its likely impacts on victim-survivors.

Criminal justice policies tend to play a dominant role in responses to domestic abuse but are often critiqued for failing to deliver a sense of justice or reduce the prevalence of abuse. One dominant critique is that criminal law too often focuses on isolated incidents of physical violence, overlooking long-term patterns of physical and non-physical abuse. Sustained campaigns have resulted in the criminalisation of these patterns of abuse (often referred to as ‘coercive control’) in England and Wales, the Republic of Ireland and Scotland. Northern Ireland is currently taking similar steps, through the Domestic Abuse and Family Proceedings Bill. The proposed legislation prohibits patterns of psychological, emotional and physical abuse against partners, ex-partners and family members, reflecting the ‘coercive control’ framework of abuse.

The Bill has been praised by support groups, such as Women’s Aid, and the Minister of Justice Naomi Long has described it as ‘not just a positive step in the right direction but perhaps a leap forward in the fight against domestic abuse in Northern Ireland.’ Certainly, domestic abuse in Northern Ireland is a crisis that requires urgent attention; the country has one of the highest rates of domestic homicide in Europe. However, I argue that we should be wary of assuming criminalisation will constitute a ‘leap forward’ as claimed.

One reason to be wary is that the proposed offence is likely to face significant implementation challenges. Criminal justice practitioners will be required to make nuanced assessments of when a series of interrelated (not necessarily physically violent) events can be considered criminal behaviour. This shift in perspective will take time and work – a study in Northern Ireland in 2016 showed that police officers were often dismissive of psychological violence, a finding that has been reflected even in jurisdictions where coercive control is already criminalised. While this may improve with appropriate training, the subtle and individualised nature of abuse means its identification is likely to continue to pose challenges in practice.

Another reason to be wary arises from the unintended negative consequences that are likely to arise from victim-survivor engagement with the criminal justice system. While community relations with the Police Service of Northern Ireland have improved significantly over the last two decades, marginalised individuals may have justified concerns about bringing the police into their homes and communities. Similarly, while the proposed Bill introduces welcome reforms with regards to criminal procedure, increased protections cannot shield victim-survivors from defence trial tactics, which may involve rejecting their version of events, challenging their credibility or implying that they welcomed the abusive behaviour. Victim-survivors will also face the possibility of harmful outcomes. Those who seek a conviction may see their abuser acquitted – statistics indicate that conviction rates for domestic abuse crimes are falling. Others may wish for the perpetrator to remain in their lives for a variety of personal, social, practical and/or economic reasons. For such individuals, a conviction may be seen as an intrusion rather than a welcome intervention.

Furthermore, overall levels of domestic abuse rarely decrease following the introduction of new criminal justice interventions, a finding that corresponds to more general research highlighting the ineffectiveness of criminal sanctions as a means of deterring harmful behaviour. One reason for this is that criminalisation cannot address the social, cultural and institutional problems that enable abuse to occur. As argued by anti-carceral feminists, interpersonal forms of violence are not separable from structural forms of violence and oppression that characterise society. What then, might it need to construct a holistic response which contextualises domestic abuse in Northern Ireland?

First, a holistic response to domestic abuse would recognise that prevalence of conservative patriarchal social norms in Northern Ireland. This means that many victim-survivors who wish to leave abusive situations face stigma, lack of family/community understanding and limited appropriate support. It is therefore important to ensure that adequate resources are available for specialist support organisations. Further support could be offered through the establishment of an independent domestic violence advisors programme, which would provide an important point of contact for victim-survivors seeking to discuss suitable options and safety plans. While stigmatising social norms have been shaped in part by conservative religious beliefs, there is also value in exploring the role that faith organisations could play in countering domestic abuse. Research has shown that giving religious leaders appropriate domestic abuse intervention training can facilitate both immediate and long-term positive change. Similarly, appropriately trained educators and youth leaders can play an important role, whether through specific domestic abuse prevention initiatives or broader age-appropriate sexual health and sexuality education.

A holistic response would also be one that recognises the legacy of political violence; research in Northern Ireland has shown disproportionately high rates of trauma exposure, post-traumatic stress disorder and addiction in both the general public and offender samples. While most people who suffer trauma do not perpetrate violence, the connections between trauma, substance abuse and violence suggest that the development of trauma-informed elements to rehabilitative interventions, used in conjunction with treatment for substance abuse, may play an important role in combatting domestic violence. The connections between domestic violence and childhood trauma, and the exacerbating role conflict-related trauma can have on survivors of childhood trauma, also highlight the benefits of adopting trauma-informed interventions into family-malfunctioning.

Finally, a holistic response would require engagement with the ongoing impacts of austerity and welfare reform on communities, particularly those with intersecting vulnerabilities. A lack of access to safe and affordable housing, funding cuts to support agencies and inadequate health and social services all contribute to a situation in which remaining at home may be the lesser evil. Resources that are being directed into the criminal legal system might better be spent providing economic and housing support for victim-survivors. On a smaller scale, policies that enable emergency housing or secure tenancies for victim-survivors, and which grant victim-survivors paid leave, might be explored.

Domestic abuse is a significant issue facing Northern Irish society. The proposed Bill may have some positive impacts but is likely to face challenges of implementation, bring its own risks, and do little to reduce the overall prevalence of abuse. By looking beyond criminalisation to consider the structural and societal contexts in which abuse occurs, much more might be done to support and assist victim-survivors of abuse.