Written by Rebecca Bocchinfuso – Director of AMICUS
Section 5 of the Domestic Violence, Crime and Victims Act 2004 was enacted with an aim to protect the welfare of children and vulnerable adults in the care of others by criminalising causing or allowing the death of such persons. One can now face life imprisonment for breaching s. 5 of the 2004 act by allowing the death of a child or vulnerable adult. Such a provision opens criminal liability up to those who find themselves in abusive relationships whose children end up murdered by an abusive partner. Is this the criminal law further victimising domestic abuse victims, or is this a necessary intervention of the criminal law?
Domestic abuse is rampant in contemporary society, and as of March of 2022, one in 20 adults experienced domestic abuse. Domestic abuse will have affected 1 in 6 men and 1 in 4 women in their lifetimes. On average, 30 men are murdered each year, and 2 women are murdered each week as a result of domestic violence.
One of the most pig-headed questions to ask a victim of domestic violence is ‘why don’t you just leave them?’ Often when victims leave their abusers, it will then trigger escalation tactics from the abuser to remain in control of their victim. As such, it is more common for domestic abuse victims to be killed when trying to leave their partners than it is for them to be killed whilst they remain in the relationship. This puts victims in a catch 22 situation, where no matter what they are subjecting themselves (and their children if applicable) to harm. Bearing that in mind, is it right to employ the criminal law to impose a life sentence upon victims of domestic abuse whose children are killed by their abuser?
Children are amongst our most vulnerable members of society. They are born into a world where they have no choice but to entrust their welfare with the adults that they find themselves with. They are particularly vulnerable by virtue of their age, size, cognitive abilities and more. It is uncontroversial to state that a child is more vulnerable than an average adult, and thus deserves adequate protection from harm through the criminal law. Such an intervention of the criminal law clearly seeks to protect children of abusive relationships and facilitates the prosecution of parents who have themselves been victimised by the abuser.
On the one hand, it can be argued that it was the parent who entered into a relationship with the abuser, and the child had no say in the matter, and thus the criminal law is correct to impose liability on that parent who chooses to stay with the abuser. But on the other hand, if we are considering the element of choice, the parent who stays also lacks a true choice in the matter, as they are often remaining in the relationship out of fear. The law as it stands tends to offer little recourse for victims of domestic abuse who are put in difficult situations. Following the decision in Hasan, the defence of duress by threats is unavailable to victims of domestic violence because they have voluntarily associated with a violent individual.
Has parliament struck the correct balance between protecting both child and adult victims of domestic abuse in enacting section 5 of the Domestic Violence, Crime and Victims Act 2004? Is the current stance that the law takes on this issue appropriate for giving victims of domestic abuse another reason to leave their abusers, or is it just further victimising them?
 s. 5(7) Domestic Violence, Crime and Victims Act 2004.  ‘Domestic Abuse in England and Wales Overview: November 2022’ (Office for National Statistics, 25 November 2022) <https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/domesticabuseinenglandandwalesoverview/november2022#:~:text=The%20CSEW%20estimated%202.4%20million,women%20and%203.0%25%20men).>accessed 22 February 2023. ‘Understanding Abuse’ (Living Without Abuse, nd) <https://lwa.org.uk/understanding-abuse/statistics/> accessed 22 February 2023.  ‘Understanding Abuse’ (Living Without Abuse, nd) <https://lwa.org.uk/understanding-abuse/statistics/> accessed 22 February 2023.  Hara Estroff Marano, ‘Why they stay: a Saga of Spouse Abuse’ (1996) vol 29, no 3 Psychology Today <link.gale.com/apps/doc/A18228772/AONE?u=leicester&sid=bookmark-AONE&xid=799dd3b2.> accessed 22 February 2023.  Hara Estroff Marano, ‘Why they stay: a Saga of Spouse Abuse’ (1996) vol 29, no 3 Psychology Today <link.gale.com/apps/doc/A18228772/AONE?u=leicester&sid=bookmark-AONE&xid=799dd3b2.> accessed 22 February 2023.   2 AC 467.