Safe as houses? The Domestic Abuse Act 2021

The Domestic Abuse Act 2021, which received Royal Assent on 29^th April 2021, is the culmination of the long-running Domestic Abuse Bill 2017-19. The Act builds upon the progress made in section 76 of the Serious Crime Act 2015, which then created the offence of controlling or coercive behaviour in an intimate or family relationship. This is in addition to the ‘revenge porn’ offence, of disclosing private sexual photographs or films without the consent of an individual who appears in them, with intent to cause that individual distress (s.33 of the Criminal Justice and Courts Act 2015). At long last, Part 6 of the new Domestic Abuse Act 2021 now creates a statutory definition of domestic abuse – a significant statutory improvement for the protections available to those affected by domestic violence and intimate partner abuse.

Crucially, s.70 of the Act creates a new offence of non-fatal strangulation or suffocation of another person. The new Act also confirms, on a statutory basis, that ‘rough sex’ is not a defence to the infliction of serious harm for sexual gratification.

Legally binding?

The Act touches upon the long running discussion as to the boundaries between consensual ‘rough sex’ and the criminal law. The friction between the ‘rough sex’ defence and consent for sexual gratification was examined in R v Brown [1993] UKHL 19. The defendants in Brown were men engaging in consensual sadomasochistic bondage-domination, discipline-submission, and sadism-masochism (BDSM). Injuries were consented to, even positively desired, for the purposes of sexual gratification.

The House of Lords, in their majority in Brown, held that it was not in the public interest for a person to be able to wound or cause actual bodily harm to another, for no good reason. Their Lordships held that, in the absence of good reason, the victim’s consent afforded no defence to a charge under ss. 20 or 47 of the OAPA 1861, and that the satisfaction of sadomasochistic desires did not constitute such a good reason (R v Brown [1993] UKHL 19). The courts have, thus far, been bound by Brown.

Claiming consent? 

However, the ‘behind closed doors’ view of intimacy has proved persistently problematic – with many commentators highlighting the juxtaposition between Brown (where the activities were found by the court to be unlawful), and Wilson (1996) 2 Cr App Rep 241 – where the branding of a woman’s buttocks by her husband, with his initials, was held to be a private marital matter, as opposed to a matter for the courts. What protection, in terms of safety – or, for that matter, personal autonomy – was ever afforded by such mixed and seemingly contradictory case law?

The UK signed the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (known as the Istanbul Convention) in 2012. In addition to this, the ‘rough sex’ defence has since developed into a patchwork quilt of case law over the years – prompting an evaluation by the Law Commission’s Consultation Paper No. 134 (Consent and Offences Against the Person) and Paper No. 139 (Consent in the Criminal Law). These papers’ central findings identified that more modern proposals for law reform were key to providing a coherent approach to consent defences, and in the interests of society. Many other stakeholders subsequently echoed the Law Commission’s findings – one such example being the astounding landmark judicial review by a national coalition of women’s organisations (the End Violence Against Women Coalition (EVAW)) who, in March 2020, sought to challenge the CPS policy on decision-making in rape cases.

Indeed, in many recent fatal assaults on women, defendants have tried to claim consent – as illustrated in the latest Femicide Census (of 2018-2020) – which catalogued eight women killed in sexually sadistic homicides in 2018 alone. Six of those eight men accused of sexually sadistic homicides in 2018 used a ‘rough sex’ defence (Consent Defences and the Criminal Justice System Research Briefing – England and Wales June 2020, p.6). Only now, in 2021, does section 71 of the Act state that: ‘Consent to serious harm for sexual gratification not a defence’. It remains to be seen how legal historians will one day view such a record.

Space to breathe?

The collective amnesia by the courts regarding the precedent in Brown is catalogued in the testimonies of the many people who attend Sexual Assault Referral Centres. This blotting of the ‘consent defence’ was raised at the Committee stage of the Bill, tabled for House of Commons Report stage – with the need for an offence of non-fatal strangulation being highlighted by Centre for Women’s Justice.

An excerpt from the Committee laments how: “Strangulation is widely underprosecuted in cases seen by domestic abuse support services” – with one judge telling the Centre for Women’s Justice that: “A significant number of domestic abuse cases before the Magistrates' Courts include some element of non-fatal strangulation which are charged as the summary offence of common assault instead of the more appropriate offence of ABH” (Consent Defences and the Criminal Justice System Research Briefing – England and Wales June 2020, p.6). The only specific legal provision on this before now was the archaic offence, in section 21 of the Offences Against the Person Act 1861, of: ‘Attempting to choke, suffocate, or strangle in order to commit an indictable offence’ (and very much requiring that it be done in the pursuit of some ulterior indictable offence). This is arguably the reason that such matters have, to date, usually been charged under the general offences against the person, such as battery – arguably not reflecting the gravity of the risks posed.

It is only now that this is a specific offence in the context of domestic or intimate abuse. Section 70 of the Domestic Abuse Act 2021 inserts a new s.75A into the Serious Crime Act 2015, to create the offence of non-fatal strangulation or suffocation of another person. While the new offence does have a defence of consent (s.75A(2) Serious Crime Act 2015), it is clarified that a person may not consent to the infliction of serious harm, where the defendant either intended, or was reckless, as to this (s.75A(3) Serious Crime Act 2015).

Conclusion

In conclusion, the Domestic Abuse Act 2021 creates new offences in some places, and significantly strengthens protective legal provisions in others – including post-separation coercive control; a ban on abusers using a defence of ‘rough sex’; and the creation of the non-fatal strangulation offence, to ensure this is prosecuted as the serious assault it is. Statutory provision was clearly needed, to ensure that a person cannot ‘consent’ to their own serious injury or death – nor can this be argued as a defence.

At this point, the lobbying activity of campaign groups must also be applauded for their emphasis, throughout the Bill process, upon the fact that domestic abuse is not only physical violence, but can also be emotional, coercive or controlling, and economic abuse. Likewise, extending the controlling or coercive behaviour offence to cover post-separation abuse was a landmark outcome. It is now anticipated that the government will try to address other crucial concerns that are beyond the scope of the current Act. Such concerns include more commitment to longer term funding for domestic abuse services. There was also arguably a missed opportunity to ensure better protection for migrant women who currently have little to no recourse to public funds (https://www.havenrefuge.org.uk/our-statement-on-the-domestic-abuse-act-2021/).

Domestic violence and intimate partner abuse can have devastating physical, psychological, emotional, and financial consequences for those affected, as well as for society as a whole. The Domestic Abuse Act 2021 sends a strong message that society will no longer accept the unspeakable breach of trust committed by one partner against the other – in an intimate context or otherwise.

If you, or someone you know, needs help or advice, you are not alone:

Refuge’s Freephone 24-Hour National Domestic Abuse Helpline: 0808 2000 247 – or visit www.nationaldahelpline.org.uk (access live chat Mon-Fri 3-10pm) – or www.refuge.org.uk/get-help-now

Mr Cathál MacPartholán FRSA is a Lawyer and Law Lecturer. He is also an Academic Door Tenant with Holborn Chambers: https://orcid.org/0000-0001-5645-7999