The Domestic Abuse Act does not go far enough in protecting women and gender minorities

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CN: this article contains discussion of misogyny, violence against women, transphobic abuse, queerphobia and domestic violence


Domestic abuse is endemic in UK society, with women and gender minorities being disproportionately affected. The latest Crime Survey of England and Wales (CSEW) shows that in 2018/2019 an estimated 1.8 million women were likely to have experienced domestic abuse compared with 786 000 male victims.  These troubling figures are made all the more concerning when we recall that less than one in five victims contact the police at all. There is also a chronic lack of information regarding domestic abuse in non-heteronormative and non-binary homes. The limited evidence we have access to suggests that LGBTQ+ people face additional barriers to accessing support in the face of abuse that is unique to their sexual orientation and/or gender identity.

National estimates suggest that one in four gay men and lesbian women, and more than one in three bisexual people report at least one form of domestic abuse following the age of 16. Prevalence rates of domestic abuse are even higher for members of the transgender community compared with any other section of the population. Research from the UK domestic abuse charity, SafeLives, shows that up to 80 percent of trans people have experienced emotionally, sexually or physically abusive behaviour from a partner to ex-partner, and that their is a chronic lack of support provided by professionals when they do seek help.

Four in five (81%) of perpetrators of transphobic violence were found to be cis-gender men in a study undertaken by Galop. This suggests that, as with cis-gender women, both trans women and trans men are both more likely to have a male than a female perpetrator.

Barriers to access of services have resulted in survivors of domestic abuse from the LGBTQ+ community finding it difficult to find culturally competent and non-traumatising support readily available. This has resulted in the underreporting of domestic abuse among these communities with approximately 60-80% of LGBTQ+ survivors never reporting  incidents or even trying to find advice. When referring to women, this article refers to cis-gendered and trans women. The above statistics, and the human suffering behind them, have been made possible by the law’s historical trivialisation of domestic abuse, the lack of statutory definition given to the term, and the failure to recognise the gender power imbalance behind this form of violence. 

A history of trivialising domestic abuse

The law’s response to domestic abuse has its roots in patriarchy, with the state, courts and police historically regarding this form of abuse as a ‘private’ problem. From the Doctrine of Coverture stating that the “legal existence of the woman is suspended during marriage”, to the “rule of thumb” allowing husbands to chastise their wives by beating her with a stick no wider than a thumb; the law has historically proven unsuccessful in safeguarding women (let alone gender minorities). 

Notably, it was not until the second-wave feminist movement in the 1960-1980s that feminists coined the phrase “domestic violence” which was previously referred to as “wife beating” by the Suffragettes and “wife torture” by the likes of Frances Power Cobbe, who sought to draw attention to this dismissed form of abuse.

By not readily recognising domestic abuse as a public problem and defining it, the law had prevented law enforcers from effectively identifying and tackling this form of abuse. After all, it was not until 1991 that it became a crime for a husband to rape his wife. That no statutory definition had been brought into law until the draft Domestic Abuse Bill in July 2019 is unsurprising, especially given the state’s historical dismissal of violence against women.

The Domestic Abuse Act 2021 and its shortcomings

The Domestic Abuse Act reached its second reading in the House of Lords on 5 January 2021, finally becoming an Act on 30 April 2021. Its purpose is to improve the police and court responses to domestic abuse to better protect victims and their children, ensuring they have the support they need and that offenders are brought to justice. 

The Act creates the first statutory definition of domestic abuse whilst also outlining the required relationship between the alleged abuser and victim that needs to be established in order for a claim of domestic abuse to be deemed valid. 

The definition of domestic abuse is found in Sections 1 (2) (a) and (b) of the Act, which cover behaviours occurring where “A and B are each aged 15 or over and are personally connected”. Sections 1 (3) (a) – (e) go on to describe what constitutes abusive behaviour, including; physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse and psychological, emotional or other abuse

Sections 2 (1) (a) – (g) looks back at the term “personally connected” mentioned in Section 1, outlining that this includes any two people that:

 “are, or have been married to each other; are or have been, civil partners of each other, they have agreed to marry one another (whether or not the agreement has terminated), they have entered into a civil partnership agreement (whether or not the agreement has terminated); they are, or have been, in an intimate personal relationship with each other; there is a child in relation to whom they each have a parental relationship; they are relatives.”

In 2021, an improvement in the law in protecting domestic abuse survivors has never been more pressing.  The Covid-19 pandemic has brought attention to a number of emerging public health issues, including abuse within the home. recorded an average of 13 162 calls and messages to its National Domestic Abuse helpline every month between April 2020 and February 2021.  The organisation went on to state that an overwhelming 72 percent of these were from women, thus illustrating a clear “epidemic beneath a pandemic”. Yet again, the evidence indicates a gender power imbalance behind domestic abuse. The government’s response to this? Introducing a statutory definition of domestic abuse that is largely based on existing cross-governmental definitions, and void of any gender dimensions.

Let us compare the 2021 definition stated above with the previous governmental definition updated in 2013 (which was not legally binding):

“any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality…”

Both the Act’s definition (2021) and the previous non-official definition (2013) are almost identical, with the only difference being the 2021 definition’s inclusion of “economic abuse”. This omission of gender-based power imbalances that remain a reality of domestic abuse is problematic on three fronts: in terms of accessibility, applicability and international law. 

The 2021 statutory definition is oxymoronic: it comes in the context of the government’s stated goal of protecting women and girls, yet provides a definition void of any gender dimension. This poses an issue when it comes to applying the law consistently.  Co-director of the End Violence Against Women Coalition, Rachel Krys, shed light onto this blind spot: 

“Teachers police officers, and social workers will be given training with a non-gendered definition. It will therefore, be more difficult for them to spot signs of domestic abuse. If you preach that it happens to men and women equally, you will not be able to understand the gender stereotyping and sexism element”.

This particular type of abuse affects all sectors of society, and each victim deserves support, regardless of race, gender, sexuality or ethnicity. Nonetheless, we cannot ignore the reality that domestic violence against women and gender minorities is far too common for legal mechanisms not to identify specific groups as main sources of aggression.  If these gender dimensions are to be acknowledged, identifying particular groups of people prone to domestic violence may allow for a better understanding of the causes and solutions to this problem. 

The lack of acknowledgment given to the gendered dimensions underpinning domestic abuse within a legal framework may also hinder an already insufficient system of support when it comes to reporting incidents. 

Domestic abuse is very unique in that it overlaps between criminal and civil courts. Though there are different routes for a victim to take in getting help and justice, there is one harrowing similarity: a reluctance to report the crime. 

Studies have found serious gaps in the criminal justice system as well as the civil courts. Reports often focus on the long delays in processing cases, coupled with a lack of communication and information about the progression of cases. Even more alarmingly, in the APPG on Domestic and Sexual Violence’s latest Inquiry, evidence shows a clear “hierarchy of victims” that has been created over the years. 

Sumanta Roy from UK-based Black Feminist organisation Imkaan told the Inquiry that “if you are involved in prostitution [sex work] or an asylum case women are treated with high levels of suspicion and disbelief”. The same Inquiry paints an increasingly bleak picture of domestic abuse cases in the legal system. Written evidence provided by Women’s Aid highlighted a lack of decline in guilty pleas, reduction in successful domestic violence cases and a general feeling amongst female victims that they are not supported and/or informed by the police. In a system that treats women survivors of abuse as “witnesses rather than victims” the Act’s non-gendered definition of domestic abuse and the existing guidance are not good enough. 

The legal and political systems’ refusal to recognise the gender dimensions of domestic abuse is even more evident in their perception and response to trans experiences. Trans people are often faced with a double threat: violence perpetrated by abusive partners and the threat of transphobic violence from the home.  A YouGov report commissioned by Stonewall found that one in seven trans people are not open about their gender identity to anyone in their family. This number increases to one in four non-binary people. In the context of gender-based power imbalances behind domestic abuse, let us consider the following: only one in four trans people (28 percent) say their family members are supportive of their identity. With more than a quarter of trans people in relationships reporting experiences of domestic abuse (2017), why is the government not consulting with these communities to ensure the Act is inclusive of their needs?

Not recognising the gender-based power imbalances that underpin domestic abuse on a statutory footing is not simply a failure of policy, but also a breach of the international law the UK has committed to ratifying. Notably, The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and The Istanbul Convention.

In terms of the law in the UK, the government passed the Prevention and Combatting Violence Against Women and Domestic Violence (Ratification of Convention) Act 2017. The Convention codifies previously non-legally binding international standards contained in a range of instruments. It has been accused of being non-compliant with the convention which states:

 “By accepting the Istanbul Convention, governments are obliged to change their law, introduce practical measures and allocated resources to effectively prevent and combat violence against women and domestic violence.” 

Though the government have expressed that they will provide “supporting statutory guidance” which will “provide more detail on the features of domestic abuse, including recognising that the majority of victims are women”, they have given no clear indication as to how this will work in practice. This has lead to many organisations as well as a joint committee that undertook pre-legislative scrutiny of the legislation to call for a new clause in the Act that would make clear that:

 “public authorities providing services must have to the gendered nature of abuse and the intersectionality of other protected characterises of service users in the provision of services, as required under existing equalities legislation”.

The need for a gendered approach to tackling domestic abuse in this country has always been great. The Covid-19 pandemic is one of many moments in history that will highlight shortcomings in the UK’s legal and welfare systems on this issue. Behind each of the statistics discussed in this article lie human lives and human suffering. This government’s Domestic Abuse Act 2021 does not go far enough in protecting women and gender minorities.

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All views expressed are the writer’s own.

Article Image Source: Ms. Magazine

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