ABSTRACT
There is no specific offence of domestic violence in English criminal law. Police and prosecutors have to rely on the same non-fatal and fatal offences against the person that may be prosecuted in relation to interpersonal violence perpetrated against a stranger. Many existing criminal law offences apply to domestic violence, such as assault, false imprisonment, harassment, rape, criminal damage, attempted murder, and in cases of fatal violence, murder and manslaughter. In some instances the general criminal law has evolved specifically to take into account the position of victims of domestic violence. The abolition of the marital rape exemption in 1991 is one example of how the substantive criminal law has evolved to take into account the position of spouses subjected to serious domestic violence. The law for the first time, in theory at least, gave wives access to a criminal prosecution when raped by their husbands. Another notable example of a change to the criminal law which had significant implications for victims of domestic violence and was, in part at least, specifically directed at improving their position, is the development of the defence of provocation on a charge of murder. These examples of the criminal law being adapted to accommodate the experiences of victims of domestic violence can be usefully examined for what they tell us about evolving judicial attitudes towards domestic violence. However it should be remembered that it is the attitudes of the senior judiciary that are being examined and that these may not necessarily be reflected in the day-to-day practices of the courts lower down the hierarchy. It is not necessarily the scope of substantive criminal offences which have proved problematic in the criminal law response to domestic violence, although in some instances they have. In general however, it is the responses of criminal justice agencies such as the police and CPS and the courts of first instance that have posed the most significant obstacles to achieving effective protection from domestic violence under the criminal law. This tension has already been noted in other contexts and serves as a reminder that the law in action does not always reflect the law in books. This theme will be re-examined in the next chapter; this chapter concentrates on the substantive criminal law and its application to domestic violence. Reference will also be made to the sentencing guidelines for relevant crimes and the insights these provide into the grading
of offences in the domestic context compared with those perpetrated against strangers.
