On 29 April 2021 The Domestic Abuse Act received Royal Assent, although not all provisions within the Act are in force.  

What is the new Law intended to do?

The Domestic Abuse Act 2021 will:

• Create the first statutory definition of domestic abuse which emphasises that abuse does not solely take a physical form. The definition will include emotional, coercive or controlling and economic abuse.
• Classify children as victims if they hear or otherwise experience the effects of the abuse they will be explicitly recognised as victims.
• Create a new offence of non-fatal strangulation;
• Introduce Domestic Abuse Protection Notices (DAPNs) and Domestic Abuse Protection Orders (DAPOs).
• Extend the controlling or coercive behaviour offence to cover post-separation abuse;
• Extend the ‘revenge porn’ offence to cover the threat to disclose intimate images with the intention to cause distress;
• Clarify the law to further deter claims of ‘rough sex gone wrong’ in cases involving death or serious injury;
• Create a statutory presumption that complainants of domestic abuse are eligible for special measures.

Strengthening the measures used to tackle perpetrators

In addition to the above, there are numerous ways the Act is intended to strengthen measures to tackle perpetrators;

• Bring the case of R v Brown into legislation, removing the defence of consent where a victim suffers serious harm (including actual bodily harm) or is killed;
• Enable domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody;
• Extend the extraterritorial jurisdiction of the Criminal Courts in England and Wales, Scotland and Northern Ireland to further violent and sexual offences;
• Introduce a statutory duty on the Secretary of State to publish a domestic abuse perpetrator strategy (to be published as part of a holistic domestic abuse strategy).

What does this mean?

The Domestic Abuse Act is no doubt a landmark piece of legislation which, it may be argued, appears to take an appropriate step in the right direction to disposing of the archaic notion that abuse can only take a physical form. The identification of ‘revenge porn’ threats further emphasises the forward thinking approach behind this new piece of legislation. However, the subjective nature of controlling or coercive will make it an unpredictable offence for both prosecution and defence.

Further, certain elements of the Act could be described as draconian, in particular, the introduction of Domestic Abuse Protection Notices (DAPNs) and Domestic Abuse Protection Orders (DAPOs). Superficially, it may seem that DAPNs are in many ways similar to Domestic Violence Protection Notices and Orders (DVPOs), which have existed for some time. However, DAPOs are significantly different, in some important ways, from DVPOs.

In contrast to the older DVPO, DAPOs can achieve a maximum of 5 years in custody if breached and are not limited in duration. They can be made until further notice and can even require a person to be subject to electronic monitoring for up to 12 months. Bearing in mind such orders can be imposed on a person not convicted of a crime, and in certain circumstances without notice, this is arguably an unrelenting change.

Ultimately, what is clear is that legislation alone is not enough. Whilst the new legislation is arguably a move in the right direction, service for victims of domestic abuse must also be properly funded. Any proposals made within new domestic abuse legislation must be supported by a full programme of education to ensure the law and approach to domestic violence of any type is proactive, not reactive.

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