Using victims' voices to prevent violence against women: a critique.

Duggan, Marian

Introduction

The current positioning of victims within the criminal justice system (CJS) is one of greater visibility and consideration than has been previously witnessed. Traditionally offender-focused in its approach, those tasked with overseeing criminal justice have strengthened their commitment to addressing victims' needs and wants. However, such developments have occurred as a result of pressure from specialist interest groups, not as a philanthropic endeavour by those working in the CJS. The rise in official and unofficial victims' movements during the latter part of the 20th century played an integral part in this change, often speaking on behalf of victims in order to have their experiences and needs recognised. These same groups, it would appear, are being listened to less by those in positions of political power who are instead using this enhanced focus on the victim to justify a more punitive response to some forms of victimisation.

The victim was not only overlooked in the CJS; similar omissions were evident in the evolving discipline of criminology. For decades, criminologists deigned to adequately engage with experiences of victimisation, particularly men's violence against women and children (Dobash and Dobash 1979, 1992). Even left realist research into social inequality and victimisation largely overlooked gendered violence. It wasn't until feminist (often women) criminologists/victimologists undertook research into gendered violence that this was finally addressed in law, academia and society (see Kelly 1988, Smart 1977, 1989; Stanko 1990, Temkin 1987, 1997; Walkate 2008). Several political and legal outcomes of this work (i.e. recognising enhanced levels of vulnerability or the need for special measures during a trial) can be seen as having benefitted victims of crime generally, not just victims of gender-based violence.

As feminist-inspired interventions have sought to improve the treatment and experiences of victims who engage with the CJS, a broader shift can be seen whereby invested groups, such as those based in the community voluntary sector, are focused on preventing victimisation rather than enhancing criminalisation. On average, two women a week continue to be killed by a current or former partner and the number of women who will experience domestic abuse at some time in their lives remains at one in four (Walklate 2007; Cerise, 2011). Although important legal and social gains have been made in acknowledging domestic and sexual abuse, additional or enhanced legislation has done little to reduce the prevalence of this form of victimisation. The law, and criminal justice system generally, is reactive: it requires an act to have been committed in order for a response to ensue. In existing cases of domestic and sexual abuse, often characterised by the repeated nature of victimisation, future incidents may be preventable as interventions to remove a victim or engage with a perpetrator may have an effect. However, for women generally, merely outlawing abusive behaviours is not enough to prevent it from happening.

The complexities involved in addressing and preventing domestic and sexual abuse have been recognised in various Government strategies designed to 'End Violence Against Women' (Banos Smith, 2011; Cerise, 2011). Although the majority of victims (and perpetrators) of most violent crimes are male, cases of domestic and sexual abuse disproportionately affect female victims. Therefore, 'violence against women' has been shown to warrant a specific policy focus (Cerise 2011). The violence prevention policies currently being developed distinguish between primary, secondary and tertiary interventions. Strategies deemed 'primary' occur before the victimisation happens, 'secondary' in response to those demonstrating warning signs of committing or experiencing victimisation, and 'tertiary' in cases where violence has occurred in order to prevent it happening again (Cerise, 2011: 12). This approach is focused on society as a whole, applying existing knowledge about abuse in order to effectively reduce it.

This paper evaluates two violence prevention policies currently proposed by the Coalition Government: the Domestic Violence Disclosure Scheme and plans to formally criminalise stalking behaviours (currently addressed under the Harassment Act 1997). Both of these initiatives can be seen as strengthening and increasing the role of the criminal justice system in people's lives, yet are questionable in their perceived effectiveness for preventing victimisation and protecting victims in line with the ending violence against women strategy. The paper begins with an assessment of how victims have come to prominence in the UK criminal justice system, particularly in relation to policy, legislation and visibility. The production of various guidelines, coupled with reports issued by figureheads tasked with giving victims a greater voice, indicate efforts to identify and rectify CJS failings in dealing with victims of crime. The paper applies this enhanced 'victim-focus' to policies designed to end violence against women, assessing their efficacy in preventing abuse or future victims. In addition, the paper questions whether the potential proposals may increase harm to the victim on the basis of existing knowledge about the nature of domestic abuse. In sum, the paper suggests that the proposed policies may be of use in preventing repeat victimisation, but initiatives designed to prevent new victims need to occur outside of the criminal justice system.

Establishing 'victim-focused' policies

Developments in victims' policy in the UK emerged as a result of efforts to establish reparations for victimisation, initially though the Criminal Injuries Compensation Scheme in 1964 (renamed in 1995 as the Criminal Injuries Compensation Authority). Little official guidance followed until the 1990s, when a number of documents and policies were established outlining what all victims can expect from the CJS. Their production was largely attributable to the impact of various victims' movements during that period. One of the largest of these, Victim Support, was granted government funding in 1986 to assist with the ever-growing number of service users it was encountering since its establishment in 1974. Over the course of a decade, it had become clear that victims often had needs and wants which were not being addressed by the CJS. As a result, several policies emerged which sought to identify and address shortcomings in dealing with victims.

The Victims Charter, produced in 1990 (later revised in 1996), acknowledged victims' entitlements in relation to four main areas: providing information; accounting for victims' perspectives; being treated with respect and sensitivity when in court; and supporting victims through the criminal justice process (Williams, 1999). Although dismissed as largely worthless in terms of addressing 'rights' (Dignan, 2005), several guidelines were introduced which sought to ensure that victims felt as though they were being taken seriously during the CJS process. Measures such as having a point of contact, being kept informed of proceedings, being treated sensitively and being able to claim expenses all contributed towards addressing some of the needs highlighted by victims' movements as being important to those affected by crime. Some of these seemingly small recommendations were vital to ensure that more victims of crime were able to engage with the criminal justice process.

A key aspect to arise from the Charter was the establishment of Victim Personal Statements. This allowed victims of crime to produce written reports about the hidden effects of their experience, giving them more of a voice in the trial process and, in some cases, a form of therapeutic reparation. For victims of violence, this was particularly important to demonstrate how their experiences may have transcended the physical to incorporate psychological or emotional trauma, which may or may not be recognised in the trial. Criticisms of the statements focus on the inconsistency of their use (Hoyle et al., 1999), their ineffectiveness with regards to sentencing, and their raising of victims' expectations while making little difference to the outcome of the trial (Hungerford-Welch, 2011). Nonetheless, the statements allow for a broader understanding of the nature and effects of victimisation experienced, particularly if this is less obvious within legal understandings of what constitutes violence and abuse.

While policies are useful guidelines for action, legislative developments such as the Domestic Violence, Crime and Victims Act 2004 which introduced a Code of Practice for Victims of Crime may hold more weight. The Code of Practice was heralded as more victim-focused and effective, setting out the minimum standards which victims could expect from the CJS. Any breaches of practice meant victims could bring forth a complaint to the Parliamentary Ombudsman, so included a degree of accountability. Several organisations were tasked with offering services designed to meet victims' needs: for example, the requirement for advice and information. However, as Dignan (2005: 85) argues, these measures were not rights, and thus amounted to little more than a 'partial enfranchisement' for victims. The issue of victims' rights had been raised within critical victimology, with some scholars suggesting that rights were a necessary step (Mawby and Walklate, 1994). Victims in the UK still have no defined rights, only assurances of good practice which should be undertaken to enhance the victim experience within the criminal justice system. Nonetheless, Victim Support have suggested that the fundamental recommendations outlined in the Code of Practice were not being effectively applied as victims remained unaware of the progress of their reported crimes and, in many cases, were unlikely to want to report future crimes (Victim Support, 2011).

The most visible development for victims was the establishment of figureheads by the Labour Government. In January 2009, Sara Payne (whose eight-year-old daughter, Sarah, who was murdered by Roy Whiting in 2000) became the UK's first Victims' Champion. This twelve-month post was intended to offer an independent voice for victims as well as laying the foundations for the subsequent Victims' Commissioner. In 2010, Louise Casey was appointed to this role, undertaking a statutory duty to actively promote the interests of victims and witnesses in the criminal justice system. Although both posts are now unoccupied (the Victims' Champion was time-limited whereas Louise Casey resigned as Victim's Commissioner in 2011), reports were produced by both which suggested that there was a disparity in treatment for victims across the CJS, highlighting a range of negative impacts on victims' personal, professional and social lives that often go unrecognised. Recommendations included enhanced criminalisation of 'nuisance' behaviours (i.e. drug use and verbal abuse), a proposed National Victims' Service to be integrated within Victim Support (Payne, 2009), and a greater recognition of the needs of families bereaved by homicide (Casey, 2011).

Perhaps most notably, as a result of her daughter's murder Sara Payne also supported the establishment of what was to become the Sex Offender Disclosure scheme, also known as 'Sarah's Law'. The scheme allows members of the public to seek information from the police about individuals who have contact with children and instructs the police on how and to whom this information can be disclosed. This was initially piloted in four counties, but was rolled out across England and Wales following a positive evaluation contained within the Child Sex Offender Review (Kemshall et al, 2010). In essence, the scheme aims to prevent future victimisation through sharing information about an individual's past offences with those responsible for children's welfare. It works in tandem with the MultiAgency Public Protection Arrangements (MAPPA), which is designed to ensure public safety by managing sex offenders in the community, but provides clearer rules around what information can be shared about an individual, and to whom disclosures can be made.

Several paradoxes are evident when evaluating the various 'victim-focused' policies outlined above: victims are being given more encouragement to engage in an adversarial system which they know little about, yet often have little indication of the system works or the additional harms it can cause. Making the victim experience better is to be commended, yet it may not be in the best interests of the victim to engage with the CJS. This paradox is one which has been significantly focused upon within feminist criminology and has had a significant impact on women's experiences as victims within the CJS.

Sexual and domestic abuse policy developments

Women as victims of men's violence, particularly their disproportionate exposure to abuse that was sexual, domestic, physical, emotional, psychological or financial in nature, was largely overlooked both in legal and criminological domains until the latter half of the 20th century (Stevens, 2006). As a result of concerted efforts by second-wave feminists, emergent research in this area has demonstrated the complex social and cultural factors informing both the commission of violence against women, and victims' hesitation or reluctance to report it (Kelly 1988; Kelly and Radford 1990; Lees, 2002; Gavey, 2005). Subsequently, Home Office circulars (particularly 69/1986, 60/1990 and 19/2000) gradually moved policing guidelines towards a more interventionist approach while reinforcing the seriousness of domestically abusive situations. Additionally, legislation was implemented which recognised and sought to prosecute not only the various types of victimisation which women disproportionately encounter from men (i.e. rape) but has challenged gender stereotypical views of who constitutes a 'valid' victim (i.e. victims as marital rape) (Hester et al. 1996).

Feminist-inspired research into the secondary victimisation experienced by many women at the hands of those involved in the CJS illustrates the contradiction inherent in seeking justice from an unjust system. For example, additional victimisation or emotional trauma may result through failing to keep witnesses abreast of developments, inadequate measures to protect witnesses from overly hostile questioning, and not informing witnesses of the trial process. Furthermore, victims of sexual violence in rape trials who were unaware of the process or the fact that they may be subjected to harsh cross-examination as a witness (Jordan, 2001). Much feminist-inspired literature has indicated the harmful stereotypes impacting on women victims in the CJS, from not being believed in the police station (Gregory and Lees, 1999), through to juror attitudes and rape myths when giving evidence in the dock (Ellison and Munro, 2009) and the continued use of sexual history evidence in rape trials despite restrictions outlined in the 1999 Youth Justice and Criminal Evidence Act (Kelly et al. 2006).

Nevertheless, some level of protection is offered by the CJS but this necessitates engagement with it, often through the victim coming forward and reporting their victimisation. As part of their ongoing strategies to enhance protection from victimisation, the Government has proposed a Domestic Violence Disclosure Scheme (similar to the scheme currently in place for Sex Offenders) and outlined plans to criminalise stalking behaviours. An assessment of these policies illustrates the limitations of the criminal justice system in preventing victimisation due to the need for a victim to be created to implement these proposed strategies.

Domestic Violence Disclosure proposals

In 2012, the Coalition Government launched a year-long pilot in four police force areas Manchester, Gwent, Nottinghamshire and Wiltshire--of the Domestic Violence Disclosure Scheme. Also known as 'Clare's Law' after Clare Wood, who was murdered by her former partner George Appleton in 2009, it is similar in approach to the Sex Offender disclosure tool, or 'Sarah's Law'. Information can be requested regarding a person's previous domestic abuse convictions, thus equipping women with knowledge about potentially domestically abusive situations. The scheme has been publically supported by Clare's father Michael Brown who has suggested that had such a proposal been in place previously, his daughter would still be alive (Johnson, 2012).

The scheme is predicated on preventing future victimisation (the abuse of the new partner) through a reliance on the commission of a previous crime and existing victim (the prosecuted offence). Future criminality is being addressed, but only among currently recognised offenders. As domestic abuse involves behaviours which tend to be repetitive and ongoing, this may be one way of lessening the chances for an offender to reoffend. The scheme is not concerned with preventing the creation of new perpetrators as it works with existing known offenders. In fact, its ability to prevent new perpetrators through indicating that their offences will be subject to query by future partners is, at best, questionable.

The justification for piloting the scheme rather than implementing it nationwide was indicated by Home Secretary Theresa May as being based on discerning between a 'right to ask' and a 'right to know' approach. Eager to avoid the victimisation of innocent people, May has suggested that the potential abuse of powers must be addressed and avoided (Travis, 2012). Thus, it would appear that the victimisation of inferred or actual offenders is being considered alongside new or existing victims of abuse. This was also a factor in the implementation of 'Sarah's Law', as was the refining of who can know what about whom. In this sense, the scheme is not entirely new: people can already make background enquiries ('right to ask'), or the police can disclose information ('right to know') where potential for further victimisation is feared.

There are problems with the presumption, as indicated by Clare's father, that such a scheme would necessarily lead to a woman exiting a potentially abusive relationship if made aware of a partner's previously violent history. Taking steps to enquire about a person's previous offending will most likely be predicated on some cause for concern having been demonstrated. In these cases, further proof of a partner's abusive background may compound fears, but may not do much to enable her to leave the relationship. Even worse, her reasons for staying may be called into question. There are many reasons why women cannot or do not leave abusive partners when they are fully aware of their abuse. Emotional ties, as well as factors like economics, family commitments, having somewhere to go or being afraid of repercussions can also make it a difficult task. It has been repeatedly documented by organisations like Women's Aid that women undergo multiple experiences of abuse from a partner before they recognise it as such. In light of this, and several high-profile cases, recommendations to recognise 'coercive control' as a form of domestic abuse are currently being debated at Parliamentary level. Therefore, suggesting that they may leave before the relationship has become evidently abusive appears illogical when the nature and impact of domestic abuse is considered.

Nonetheless, this initiative is propagated as progressive by the Government as a commitment to end violence against women. However, the scheme has attracted criticism from Refuge, a leading organisation supporting victims of domestic abuse, who have suggested that it is waste of resources as the majority of domestic abusers are never reported, prosecuted or convicted so will not register here. Also, the 'right to ask' component of the scheme relies on the new partner to check with the police about possible previous offences. The onus remains on the non-abusive partner to determine the course of action and assume responsibility for these choices. Subsequently, there may be a degree of culpability bestowed upon the victim if, after finding out about abusive behaviours and remaining in the relationships (for whatever reasons), she is then subjected to victimisation or violence.

Drawing on Garland (2001), the scheme appears to be dictating that women make 'responsible' decisions (i.e. check on a partner and leave them if there is a history of violence) when given the opportunity to do so. The focus is entirely detracted from the abusive (usually male) partner, whose responsibility in not abusing or harming others is not questioned. His decisions in allowing the relationship to develop are moot as it is she who must decide whether to stay or not. It could also be seen as deflecting potential abuse onto subsequent partners if the woman does leave the relationship.

Finally, there is a danger in allowing past conduct to label a person's future. The opportunity for reform is effectively negated if subsequent partners infer a potentiality to abuse as evidence of probability. If the scheme is seen to undermine the steps a person has taken to desist from abusive behaviours, then the labelling effect of this may be counter-productive in encouraging them to move on from their abusive past. Ultimately, this too could result in future victims being created if offenders consider efforts to change as futile in light of judgements made on their previous offences.

Proposals to criminalise stalking behaviours

The shift in approach from welfare to a more punitive response has also been demonstrated via proposals to criminalise stalking behaviours. Following the trend of 'victim-led' interventions detailed above, the high-profile case of 22 year-old Shane Webber has been used to illustrate a need for legislative changes. Webber was convicted of causing harassment, alarm and distress to his girlfriend, Ruth Jeffrey, after hacking into her email and social networking accounts in order to distribute online intimate, naked pictures of her to friends and family. All the while, he was comforting her against a seemingly unknown abuser throughout her three-year ordeal. Webber was charged under the 1997 Harassment Act and sentenced to four months in prison, yet campaigners working with victims of harassment claim the current legal provisions are inadequate to address the harms of stalking victimisation or to infer the seriousness of this type of behaviour. They indicate that the advancements in social networking and media means techniques like those employed by Webber are now accessible to those with just a rudimentary knowledge of the internet. The popularity of information-sharing sites, including Facebook and Twitter, has demonstrated new avenues for potential victimisation, particularly in relation to domestic or interpersonal relationship abuse.

Research by Walby and Allen (2004) into the victim-offender relationship in stalking incidents indicated a bias towards familiarity: partners accounted for one third of perpetrators, an acquaintance also one third, and the remainder (42%) being a complete stranger. Those calling for stronger legislation also highlight the continuum effect of harassment. Prosecutions for domestic abuse often indicate a trajectory whereby the abuse was the culmination of ongoing, increasingly harmful behaviours, several of which are recognised under the Protection from Harassment Act 1997. Clare Wood's abuser, George Appleton, was reported to have had three previous convictions under this Act before he murdered her.

An inquiry by the Justice Unions Parliamentary Group into the limitations of the 1997 Act to adequately protect victims has led to current debates around criminalising stalking. This is one of the most commonly cited behaviours addressed within the Act. Research conducted by Protection Against Stalking (PAS) and NAPO, the probation union, published in 2011 suggested that the existing system of punishing stalking under the Act was not effective in preventing incidents, recognizing the seriousness of the offence or providing justice for the victim (Richards, 2011). The report suggested that of the 120,000 victims of stalking and 53,000 incidents recorded as crimes by the police, only 12 per cent of these resulted in a conviction. The most common disposal was a community sentence or fine, with just 2 per cent of offenders being given a custodial sentence. Unsurprisingly, the trajectory of abuse documented in many stalking cases mirrored that of domestic violence situations, rapidly progressing from verbal harassment to physical assaults and, in some cases, murder.

In Scotland, section 39 of the Criminal Justice and Licensing (Scotland) Act 2010 clearly outlines the conduct which would be seen as causing a person to feel fear or alarm. This conduct also covers online and electronic means by which to elicit fear or alarm. In a sense, the increased scope of legislation to criminalise stalking behaviours or actions is indicative of Nils Christie's (1977) 'net-widening' critique of the criminal justice system. Bringing more people into this net does not necessarily lessen the behaviour or the harm, but may conversely increase the prevalence of this type of crime by naming it. Paradoxically, this may prove useful: for a long time, women victims of men's violence were dismissed by the police as not having experienced real crimes in comparison with other forms of criminality, particularly, as Reiner (1990) indicated, in cases of domestic or sexual abuse.

Although attitudes and responses have improved since Reiner's research, the current discussions about expanding legislation to recognise 'coercive control' and stalking behaviours may send a stronger social message that these acts are unacceptable. For victims, this may be of some use in legitimising their need for the recognition and redress of harms experienced. Yet, as has been demonstrated with existing legislation, such laws rarely succeed in actually preventing harmful behaviours. As a result, if these initiatives are to be implemented under a guise of violence prevention then they need to go further than just responding to victimisation; for some victims of domestic or sexual violence, it may be too late by then.

A moral dilemma is often evident in social discourses concerning crimes involving a domestic or interpersonal element; aside from the fact that there may be an emotional attachment to an abuser, if victims do not seek recourse through criminal justice means, they are allowing abusive people to go unpunished. Additionally, they may feel responsible for if the abuser goes on to create new victims. As such, women victims of sexual and domestic abuse are caught between a rock and a hard place. Engagement with CJS mechanisms may harm them further, leading to a form of secondary victimisation, and may not result in the outcome they anticipated or which reflects the trauma they have experienced. However, a victim's failure to report their victimisation may lead them to feel, or even incur, a level of responsibility and blame (Richie 2000; Jordan 2001; Walklate 2008). Thus, violence prevention strategies need to consider what is being asked of, and expected from, those involved in domestic and sexual abuse. In preventing repeat offending or victimisation, improvements need to focus on the services available to existing victims. Prevent the creation of new victims (or perpetrators) may be a more effective task if it is located outside of the CJS.

Conclusion: Approaches to prevention

These new proposals take the knowledge of an existing victim as a starting point for the prevention of future victimisation (towards them or others). Similarly, much of the policy focus implemented so far in the UK has been on domestic abuse service provision and police responses towards situations and victims. For example, the Co-Ordinated Action Against Domestic Abuse (CAADA) charitable organisation offers support to those deemed at highest risk of serious harm from domestic abuse. Independent Domestic Violence Advisors (IDVAs) assess cases seen to be medium or high risk, often operating with other relevant agencies to ensure a joined-up approach to harm reduction. Interventions available to those working with victims of domestic abuse include referrals to Multi-Agency Risk Assessment Conferences (MARACs), where information is shared among agencies to establish a specific plan of safety and support for victims (and children where necessary).

In order to apply these interventions, a victim needs to have been recognised, assessed and consulted, often as being 'medium' or 'high' risk. If they are assessed as 'standard', it may be the case that alternative strategies are offered, for example domestic abuse outreach services, enhancing home safety though practical measures, ensuring awareness of support services or exit routes at short notice. In these cases, a victim has been identified thus the prevention focused upon is an escalation in the frequency or severity of the abuse, not the prevention of a victim being created in the first place. In line with the current strategies to end violence against women, the work done by IDVAs and MARACs indicates that the criminal justice system has a clear role to play in terms of tertiary prevention (i.e. aiding abuse victims to access new housing, benefits, medical treatment or counselling, or assigning offenders to treatment programmes for abuse or violence offences), and secondary prevention (i.e. removing a victim from a vulnerable situation early on, tagging an address, taking details on an alleged perpetrator). However, a more efficient and cost-effective means of prevention would be to focus on primary prevention (Crisp and Stanko 2001; Walby 2004).

This approach appears to be encapsulated within the End Violence Against Women Coalition strategy. Here, a focus on 'promising practice' addresses the roles played by education, community and media awareness in preventing the creation of victims or offenders (Banos Smith 2011). Such an approach aims to identify the 'ingredients that make prevention work successful, based on the experience of those carrying out the work' (Banos Smith 2011: 7). Unsurprisingly, the report demonstrated need for close working relationship between voluntary sector and educational establishments. Practices like applying violence prevention interventions early and structuring these within educational curricula (embedded in existing classes where possible) addresses both male and female perspectives of gender roles, acceptable interactions and positive sexual engagements. However, a few classes or segmented teaching is not enough; the report also demonstrated that some young people reverted back to type when outside of the intervention environment, or when asked to apply their learning to their own lives (Banos Smith, 2011: 13). Nonetheless, school-age children were found to be more likely to make disclosures of domestic or sexual victimisation to representatives of the various local domestic abuse organizations rather than teachers (Banos Smith, 2011: 11-12).

While educational work is not the only solution, what is important is that the approach taken to prevention is situating these strategies outside of the criminal justice system. Victim-focused advocates working with the Government to prevent or protect women victims of men's violence realise that the criminal justice system can only do so much; a concerted effort is needed outside of this arena to effectively ensure that victims (and offenders) are not created in the first place. In order to achieve this, it is necessary to recognise that ending violence against women is going to take a multitude of forms and involve a diverse group of people; this may also include victims of domestic and sexual abuse.

It is encouraging that the victim of crime has been elevated to a more prominent position in the criminal justice system, and that a focus on ending violence against women has been made a high-profile aim for the Government. However, there is a danger in using victims' voices as a basis for enhanced criminalisation when it is clear that merely enacting legislation does little to prevent crime, particularly domestic or sexual abuse. Taking a populist politics approach and suggesting that tougher laws will 'prevent' violence against women is at best, unfounded and, at worst, potentially allowing for more victims to be created.

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Marian Duggan, Department of Law, Criminology and Community Justice, Sheffield Hallam University (5)

(5) The author would like to thank the anonymous reviewers for their helpful comments during the drafting of this paper.