Policy Responses to Domestic Violence, the Criminalisation Thesis and ‘Learning from History’

The &#8216;criminalisation thesis&#8217; has proved a contentious but defining feature of modern social and legal responses to domestic violence since the 1970s. However, criminalisation has not always been the focus of legal attempts to tackle violence or offer recourse to victims. This article uses historical examples to explore the potential of legislative intervention outside of criminal law in tackling violence against women. While the Victorians introduced the first criminal legislation specifically developed to tackle domestic violence, the intervention remained singular. Those addressing violence against women soon shifted their focus towards achieving broader social and cultural change via civil law. Legislators sought to reduce the vulnerability of women to exploitation and violence at the hands of their husbands through reforms to child custody, divorce, and property law. The authors find there are relevant lessons to be learned from addressing domestic violence in this way, which might usefully inform current policy direction.

1970s onwards, the policies developed in response to such concerns were marked by a recourse to the law (see, inter alia, Smart 1989;Snider 2008;Walklate 2008). The purpose of this article is to expose the ongoing presence of this thesis by subjecting it to a deeper historical analysis through the examination of historical case studies from which contemporary policy preoccupations may have something to learn.
It is important to note that the first 'modern' criminal law intervention into domestic violence came in the form of the Domestic Violence and Matrimonial Proceedings Act 1976. Prior to this sea change in governmental approach to domestic violence, researchers must go back more than 120 years, to the 'Criminal Procedure Act' 1853 (otherwise known as the 'Act for the Prevention and Punishment of Aggravated Assaults upon Women and Children') to find an intervention in criminal law aimed specifically at addressing domestic violence. In the intervening years, other approaches to addressing the problem of violence against women were given greater prominence and the purpose of this article is to explore these historical (dis)continuities. In order to do so the article falls into four parts. The first part offers an overview of the strengths and weaknesses of the criminalisation thesis. The second part moves back in time to examine what was already known about the capacity of the criminal justice process to respond to violence against women. Next, the article considers what might be learned in the present from the past. The concluding and final part of this article considers how best to move forward in the light of these considerations. However, first of all it is of value to offer a note of caution.
Not all voices concerned about violence against women sang from the same (criminalisation) hymn sheet. Notable, for example, was Elizabeth Wilson's short book published in 1983 entitled What is to be Done about Violence Against Women in which she laid out a multi-faceted policy response invoking the need for changes in social policy and ideological beliefs about women in which changing the law was only one ingredient. Wilson (1983, p.228) argued that changes in the law were needed where the law supported violence against women and in this regard the law has changed in many different respects and in many different jurisdictions. This has been the case particularly in relation to rape and/or sexual assault exemplified in the Domestic Violence, Crime and Victims Act 2004 and the inclusion of coercive control embraced in Section 76 of the Serious Crime Act 2015. Yet despite the plethora of activity underpinning these changes, Mooney (2007) was able to ask: how is it that violence against women could be a public anathema and a private commonplace all at the same time? (see also Schneider 2000; Stanko 2007).
Yet the recourse to law continues to fuel policy and political imaginations. This is in the face of the evidenced practical and conceptual consequences of pursuing this approach, demonstrated consistently and persistently by feminist and legal scholars such as Smart (1989), Naffine (1990), and Hudson (2003, 2006, among many others. Each of these commentators, in different ways, points to the barriers in the recourse to law for women inherent in how the legal subject is constituted. This legal subject constituted by the rational man of law means that simply adding women and stirring is fraught with difficulties. This man of law dominates who and what is considered rational, actionable, and what is doable within any criminal justice system. Indeed, Greene and O'Leary (2018) observe: 'laws can bolster and maintain patriarchy' (p.78), despite their intention to do otherwise, and they do so as a form of 'soft misogyny' (Dunlap 2016). In offering a deep and provocative analysis of this recourse to law (the criminalisation thesis) Goodmark (2018) outlines the policy challenges which can ensue from it. The first part of this article considers this thesis as it is articulated in present policy responses to domestic violence. Goodmark's (2018) analysis points to the different ways in which criminal justice responses have reaped benefits for women living in violent relationships. For example, mandatory arrest policies offer some respite from abuse for some women for a short time; various orders mandating the offender to stay away from the victim can have a similar effect; the introduction of court mandated interventions for violent men have demonstrated some success by making offenders accountable for their behaviour; similarly the threat and/or experience of prison can offer some women some respite; and, finally, criminal justice responses can also satisfy desires to punish. On the other hand those same responses have impacted on women in different ways, for example, in resulting in greater State control over their children (particularly for ethnic minority women, those belonging to Indigenous populations and women with disabilities); in adding to the increasing dual arrest phenomenon for incidents of domestic violence (where the police officer arrests both the 'perpetrator' and the 'victim' in the absence of evidence differentiating one from the other; see Miller and Meloy (2006)); in having a differential impact on women of colour (Goodmark's (2018) term); in adding to hyperincarceration and tying up police and criminal justice resources to no good effect (especially if that good effect is intended as the ending of such violence). Goodmark (2018) is clearly commenting on the impact that the criminalisation thesis has had in the United States and she goes on to make the case for a more holistic response reminiscent of Wilson's (1983) agenda. Yet despite the United States' orientation of this analysis, some of the issues and contradictions she raises are self-evidently also pertinent in the ongoing recourse to the law found in England and Wales, Scotland, and Northern Ireland.

The Criminalisation Thesis: Strengths and Weaknesses
This recourse to the law is exemplified in the draft Domestic Violence and Abuse Bill 2019. This proposed legislation is presented as the culmination of over a decade of activity which has focused attention on the role of the criminal justice process in relation to domestic abuse and the capacity of that process to offer a better 'service' to women. In the space afforded to this article it is not possible to offer a detailed analysis of the range of activity this has entailed. However, in offering a few highlights of the success and/or failure of this activity it is worth reiterating the findings, for example, of HM Inspectorate of Constabulary (2014) and HM Inspectorate of Constabulary (2015). Both reports point to the ongoing gaps in policing responses to domestic violence alongside evidence indicating the patchy implementation of the offence of coercive control introduced in the Serious Crimes Act 2015 (see, for example, Barlow et al. 2020;Bishop 2016). Of course, difficulties in implementing legislation do not pertain only to the police but also take their toll as cases progress (or not) through the criminal justice process. The well-documented problem of attrition is illustrative in this respect (see, inter alia, Walby, Armstrong and Strid 2012). Yet the proposed legislation is clearly deeply embedded in perpetuating some of these issues.
This Bill, published in January 2019, is wide ranging and ambitious. Indeed, in many ways it exemplifies the kind of holistic and integrated response proposed by Wilson in 1983. It includes recommendations addressing education for healthy relationships in schools, for improving training for the police, social workers, health care professionals etc., court dispositions for offenders, services and support for victims, health, and so on. In fact, in Annex 3 the document lists 123 commitments indicating the departments responsible for realising them. It also includes some statements concerning the funding for these commitments which, when read in isolation, appear impressive. However, the impressive rhetoric contained in this Bill needs to be separated from its key focus. For example, much is made in the proposed legislation of its expansive definition of domestic abuse (which is to be commended) while at the same time retaining its gender-neutral embrace contradicting the widely-available evidence about such abuse. In addition, much is made of rendering breaches of various domestic violence orders criminal offences, placing the domestic violence disclosure scheme on a statutory basis, guidance on disclosure of information and, interestingly, the creation of the new role of a domestic abuse commissioner (already appointed). Thus the actual proposed legislation retains a focus on criminalisation despite all the evidenced difficulties with this. The reasons for this continued embrace are not of concern here but the ongoing preoccupation with criminalisation is. So what might an appreciation of the past reveal about this preoccupation?

Looking to the Past
Two centuries prior to the draft Domestic Violence and Abuse Bill 2019, victims of domestic violence suffered in silence; not only a cultural silence, part of a society blind to, or unwilling to acknowledge, their plight, but also a legal silence. Domestic abuse was ever present, then as now, behind closed doors and in the shadows of semi-public spaces. However, those subject to domestic violence, primarily women, had no specific rights or recourses in law to address the wrongs done to them. The little-substantiated but commonly-held 'rule of thumb' (Simpson: 1984) -that a man had a right to physically discipline his wife and children if they displeased him -had spread its cultural roots to the 19th Century from the distance of the 18th Century and earlier. In law, and in practice, those who were victims of murder, manslaughter, of life-endangering assaults at the hands of spouses, partners, and parents might find protection under the regular statutes of criminal law, but those who suffered recurrent beating and humiliation, coercion, wounding, and sexual violence in a domestic setting had little or no right to bring a complaint to court.
The coincidental arrival of a new Queen in 1837, and a slow shift away from the distant past towards a world more familiar to our own, brought with it change in both perceptions of crime, and belief in English moral exceptionalism. Both played a significant role in the rights and experiences of vulnerable women in the next 150 years. As Wiener (2004) notes: 'during the sixty-four year reign of a woman, the treatment of women in Britain and in the burgeoning empire became a touchstone of civilisation and national pride' (p.10). This claim, though problematic, captures the unique and concerted effort of social campaigners and government policymakers in the second half of the 19th Century to advance the rights of women with a view to reducing their vulnerability to exploitation and violence. Although the Victorian ideal of domesticity did much to facilitate and excuse male violence in the home and women's subordination to it, social responses to marital violence were often more progressive in this period than we might expect (Clark 2000). No other era in history, accept our own 20th and 21st Centuries, made such an impact in tackling the causes of recurrent domestic violence. What is most remarkable about this period of progress is that, despite the Victorian's love of criminalisation and incarceration, the greatest legal protections against domestic violence received by women were not through criminal law interventions, but through advances in family and property law.
The 19th Century saw only one stand-alone change to criminal law which dealt specifically with domestic violence. The Criminal Procedure Act 1853 was the first legislative attempt made to limit the level of 'chastisement' a man was entitled to give to his wife or children. The Act made assaults on women, and boys under the age of 14 years, punishable by a magistrate with a fine and up to six months in prison. The Act represents a legal landmark, through which authorities indicated that not all domestic violence was acceptable (Clark 2000;Weiner 2004). However, while the Act gave greater access to justice for victims of domestic violence from a legal perspective, the increasing culture of social subordination and economic dependency into which women were forced, limited their willingness to prosecute in this way. As Susan Kingsley Kent (1999) described, even contemporary campaigners for women's rights recognised that the wider landscape of women's legal inequality 'exposed them to the brutalities of the world at large ' (p.191). A husband serving six months in prison for assault meant six months of financial crisis for many working-class families. Not to mention social stigma and ostracism, particularly for those in the middle class, and the prospect of more violence as a reprisal when husband and wife were reunited. Concerns are still present in modern debates on legislating for domestic violence in the current day (see, inter alia, Douglas 2012; Goodmark 2018).
Another consequence of the Act was that it removed control of prosecution from the hands of the victim. As a result, victims of domestic violence who had very real fears about the consequences of prosecution could be forced to give testimony against their will. At Southwark Magistrates Court, in July 1857, a 'dissipated-looking man', John Smith, was bought before the magistrate charged with an assault on his wife, Ellen. After a day of drinking, John had returned home to the house he shared with Ellen in Suffolk Street, and begun 'abusing' her. Ellen had tried to escape the abuse, but was caught by John, struck and knocked down, sustaining bloody injuries to her face. The commotion drew the attention of a local constable who took John into custody to await trial under the 1853 Act. Ellen, however, was at pains to point out that she had no wish to pursue a prosecution, and that she 'hoped his worship would not punish him [John]' (Morning Chronicle, 10 July 1857). In an open court room, Ellen was probed about John's history of domestic violence. He had a former conviction for a similar assault, also under the Act, which earned him three months in custody. Ellen, hesitating, admitted John's previous abuse, but was quick to assume responsibility, claiming that the abuse had been 'her fault then' and that she was sorry for the prosecution. Despite the fact that Ellen 'begged his worship not to send her husband to prison again', whether fearful of reprisals from a violent husband or the economic consequences of losing the family breadwinner, John was committed to hard labour for six months. Cases like that of John and Ellen Smith illustrate that seeking to better criminalise domestic violence could, and still may, unintentionally drive violence further underground, silencing victims who are in need of assistance but fear the ordeal and results of such prosecutions.
There were many other victims, willingly prosecuting under the Act, but who also gave clear evidence suggesting that criminalisation and incarceration of violent partners was not their primary interest. Just months before Ellen Smith reluctantly testified in Southwark, Mrs Elijah Lewis took her husband of a few months to court at the Guildhall. Her aim, she told the magistrate was 'not to send her husband to prison, but to be protected from his violence; in fact, to be separated from him' (Hereford Times, 21 February 1857). Likewise, Elizabeth Wilkinson took her husband, Frederick, to court after some years of marriage due to his 'constant habit of getting drunk and ill-using her'. On one occasion, in June of 1864, Frederick came home from drinking and assaulted Elizabeth, attempted to strangle her, and told her that he intended to kill her. Frederick was only prevented from doing so by the intervention of lodgers. Elizabeth, just like Ellen Smith and Mrs Lewis, tried to dissuade the magistrate from imposing a custodial sentence, asking, instead, that the magistrate bind her husband over to keep the peace, and to separate from her, for she could make her own livelihood, she testified, if she were not tied to a man who took her money for his own support (Standard, 8 June 1864).
The Criminal Procedure Act 1853 would be amended in later years, but it remained the only substantial piece of legislation aimed at tackling domestic violence through criminal prosecution for more than a century. This may have been, in part, due to continued reluctance of the Victorian State to intervene in marital disputes but was also, arguably, in recognition of the limitations of criminalisation as effective deterrent to domestic violence. Just three years after the Act became law, the Assaults on Women and The Howard Journal Vol 59 No 3. September 2020ISSN 2059-1098 Children  1875). Yet, in the 20 years preceding the 1853 Act, and the decades that followed, a separate legislative agenda limiting the susceptibility of married women to abuse took shape; the aim was to protect women at risk of violence and coercion through changes to child custody, access to divorce, and property rights. One of the most significant pieces of civil legislation addressing women's rights in this way was passed in 1839, following the highly-publicised marital discord of the aristocratic Norton family. Caroline Sheridan, a gentleman's daughter and author, married George Norton, an aristocrat and unsuccessful barrister and politician, in 1827. In the decade that followed, their tumultuous marriage became a lasting illustration of the corrupt power dynamics that trapped women in physical, economic, and emotional subservience to bad husbands. Caroline was the victim of regular physical abuse at her husband's hands, unable to obtain financial freedom from him, or successfully petition for a divorce. In the eight years in which they lived together, Caroline would suffer regular physical and emotional violence at the hands of her husband. George has been noted as throwing books and an inkstand at his wife, setting her writing materials alight, breaking down the locked door to her study and forcefully removing her from the room, burning Caroline with a tea kettle, as well as being responsible for regular quarrels which erupted into physical violence, that may on one occasion have resulted in Caroline's loss of a pregnancy (Craig 2009, pp.109-10). Caroline left the family home in 1835, but returned soon after, unable to support herself (with no rights to her own earnings or property), and missing her children. In the eyes of the law, Caroline returning effectively condoned her husband's behaviour (a very familiar and contemporary response of 'victim' blaming), nullifying her petition to divorce him on the grounds of 'cruelty' (domestic abuse). Just months later, George removed himself from the family home, in preparation for a lawsuit in which he attempted to sue the then Prime Minister, Lord Melbourne, for 'criminal conversation' (adultery) with Caroline. An ultimately unsuccessful move intended to humiliate his wife, isolate her from her closest friend, and damage her reputation. When the lawsuit proved unsuccessful, George's final act of punishment, coercion, and control against Caroline was to remove their children from the family home, lodging them in Scotland, and permitting Caroline neither visitation nor knowledge of their whereabouts. The situation continued for more than five years, until her youngest son died in an accident, after which she was permitted supervised visitation by him, at his family home. This proved to be a turning point.
The Infant Custody Act was passed in 1839, in no small part due to the tireless campaigning of Caroline Norton (McGough: 2005). The Act gave 'virtuous' (not adulterous, drunken, or otherwise 'unsuitable') wives, the right to apply for custody of their children under the age of seven years, and access rights to those over the age of seven years in the custody of their father (Custody of Infants Act 1839, 2&3 Vict., c. 54 (Eng)). The Act did nothing to address domestic violence, but for the first time under law, women like Caroline, wanting to remove themselves from abusive domestic situations, were not faced with the impossible decision of leaving their young children behind with the perpetrator, and having no future rights to access. In practice, the courts remained reluctant to involve themselves in matters of marital dispute, and with no provision for maintenance, petitioning and gaining custody of children was rendered impractical for all but the independently wealthy. As McGough (2005) notes: 'the possession of rights is a meaningless abstraction without some means to ensure that one's voice is heard' (p.17). In some ways, the conditions of the Act were an early example of Greene and O'Leary's (2018, p.78) concerns over the ability of law to maintain patriarchy even as it offers positive change. However, the Infant Custody Act 1839 remains a critical development in addressing the causes and impact of recurrent domestic violence, in which children could be used to control and coerce victims, and prevent them leaving violent domestic settings. Most importantly, infant custody was the first of several pieces of key legislation supporting women in removing themselves from abusive domestic situations.
Less than 20 years after women gained the right to custody of their young children, the Matrimonial Causes Act 1857 widened access to divorce throughout the United Kingdom. Prior to this Act, only those with the status and funds to privately petition parliament could dissolve an unhappy marriage. The Act preserved some marital inequality between men and women. While men could sue for divorce on the grounds of adultery alone, women had to prove a second charge such as bigamy, desertion, or cruelty. However, the Matrimonial Causes Act 1857 did allow, for the first time, women to divorce their husbands on the grounds of cruelty alone. Divorce may have remained difficult to procure and highly stigmatised for the rest of the century, yet the Act provided a vital lifeline to woman desperate to escape violent marriages. Furthermore, it recognised in law that abuse of wives by their husbands was not to go unquestioned, by either the State or, most importantly, spouses themselves. A further amendment to the Act in 1878 allowed women to secure separation from their husbands on the grounds of cruelty, gain further rights to custody of their children, and enabled magistrates to issue protection orders to women whose husbands had been convicted of aggravated assault. The year 1878 represents, perhaps, the most significant contribution to ending abusive marriages, with women finally able to pursue separation from violent husbands as a matter of course (D'Cruze 1998).
Further family and property law legislation followed. From 1870 through to 1882, a succession of acts concerning married women's property were passed. Ultimately these acts recognised the separate legal status of women, their rights to maintain their own property brought into a marriage, and rights to their own earnings. The acts did not end the economic dependence of women on men; they did, however, provide protection to women who separated from their husbands. Until the Married Women's Property Act(s) of 1870 and 1882, abusive husbands could claim the property and earnings of wives who tried to live independently from them. Family and civil law interventions such as these, seeking to mitigate the vulnerability and exploitation of women, continued into the 20th Century. In regards to unhappy marriages, the 1923 amendment to the Matrimonial Causes Act gave men and women the right to apply for divorce on equal terms, and the Summary Jurisdiction (Separation and Maintenance) Act 1925 made it easier for either partner in a marriage to apply for separation and financial support. Post-war welfare legislation, too, such as the Family Allowances Act 1945, played a role in tackling the financial and social vulnerability that contributed (and still contributes) to trapping women in violent domestic situations.
Accurately charting historic rates of domestic violence are challenging. Not only due to the dark figure of unreported crimes, but because prior to the late 20th Century no separate category for domestic assaults was recorded among general arrests and prosecutions for interpersonal violence (D'Cruze and Jackson 2009, pp.21-9). However, the history of the acts explored briefly above suggest that history does have pertinent lessons to teach us about future domestic violence policy. The positive impact that advancing women's economic and social rights in the 19th and early 20th Centuries had on reducing vulnerability to repeat domestic violence is a practical historical example of Wilson's (1983) assertion that social and cultural change has as big a role to play in ending domestic violence as criminal prosecution. Historians of crime have also highlighted this, when charting the declining acceptance of domestic violence (if not its criminalisation) over the course of the 19th Century (Emsley 2005, pp.103-6). Of course, we cannot be certain that changes to civil legislation alone reduced actual rates of domestic violence. Historians have indicated time and again that declines in prosecutions for particular offences cannot be used to evidence declines in criminal practice, only prosecution patterns (Gatrell, Lenman and Parker 1980;Godfrey 2014Godfrey , 2015Godfrey, Farrall and Karstedt 2005). However, what is clear, is that in the more than 100 years preceding the Domestic Violence Act 1976, it was family and property law which provided the widest range of opportunities for protecting and removing women from violent domestic situations, rather than legislation focused on the criminalisation and short-term incarceration of their abusers. This evidence and the evidenced shortcomings associated with reliance on criminal justice responses alone lends considerable support to Nussbaum (2011) capabilities approach as a guide to intervention.

Concluding Thoughts: 'Lessons from History'?
There are a number of points of connection between the present and the past in the material discussed above. One connecting theme is the continuing, and evidenced reluctance of women to engage in criminal justice as a response to the violence(s) of their partners. The consequences of doing so remain unremittingly the same: loss of income, status, shame, and so on. Here Lawrence's (2019) observations on the importance of continuity are clearly exampled. The legislative landscape may have been different but its inhabitants were remarkably similar to us. The past, after all, was still populated by people who loved their children, worried about money, felt anxious about what their neighbours might think, and took seriously the prospect of upending their family lives. However, as Lawrence (2019) also points out, continuity is not only long, it can also be deep. The material discussed here points to the wider civil changes in women's rights over access to divorces, custody over children and property being used more frequently than criminalisation, in attempts to improve the position of those women living with violence, at least those who were in a position to avail themselves of the opportunities that these civil changes afforded. What is more, it was these changes that women living with domestic violence themselves asked for time and again, in court, in public writings, and as they reached out to campaigners and lawmakers. Here, too, the continuities are also, arguably, profound since those unable to avail themselves effectively and affordably of such civil changes remains very much the same. The answer to the perennial question of: why does she stay (or as in the case cited above: why did she go back) is still locked in economics, availability of accommodation, access to children, and, as ever, love (Kuennen 2014). None of these issues are effectively addressed in the criminalisation thesis nor are they taken seriously (that is in terms which make sense to women themselves) in the Domestic Abuse Bill 2019. So these are the simple and obvious points of connection between the past and the present from which those occupied by presentism might learn. However, perhaps there is also something deeper to excavate here.
Yeomans (2019) offers a number of the functions of history for contemporary criminology and criminal justice policy. These he itemises as: understanding what came before (as in offering a prologue); understanding the origins of the present; appreciating the particular characteristics of the present; illuminating how things have unfolded over time (the processes); and pointing to the relativity of the present in so far as history can reveal that the present was not inevitable. None of these functions exist in isolation though some might be more prescient than others, depending upon the issue under consideration. In reflecting on the points of connection between the present and the past offered in the discussion above, it is possible to discern that the present preoccupation with criminalisation was not inevitable. Other choices could have been made and were, indeed, made in the 19th and early 20th Centuries. The unfolding processes written between the lines of this discussion lie in the increased civil rights of women which, arguably, lay the groundwork for the influence of second wave feminism in the mid-20th Century. It was, perhaps, at this juncture that the presentism of the criminalisation thesis can be found. This has, arguably, done little to benefit women in the long term (see, inter alia, Snider 2008) and might be understood as a feature of what Fraser (2009) has called the 'cunning of history'. Fraser (2009) observes that second wave feminism coincided with the emergence of neoliberalism and thrived under these conditions valuing personal responsibility. Within these deeper processes feminist challenges of (mis)recognition and (mis)representation became relabelled as claims for justice centred on difference and identity. In her view, this unhappy liaison (between feminism and neoliberalism) provided the space in which feminist claims about women's experiences of violence(s) became aligned with what Garland (2001) has called a culture of control. This is the cunning of history. Better connecting the past and the present affords a better base from which to make sense of the present. This can be done, and Yeomans (2019) offers one way of moving forward on this. Lawrence (2019) offers a slightly different one. It is without doubt, however, that an appreciation of history that is both long and deep would do much to challenge contemporary policy debates in responding to violence(s) against women.