Tackling misogyny in the criminal justice system
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Louise Heath
Description: Centre for Womens Justice
Harriet Wistrich fleshes out the proposals in the recently-published manifesto from the Centre for Women’s Justice, identifying 10 key ways in which the criminal justice system can transform its widely-criticised response to male violence against women and girls.
In the wake of the murders of 122 women and counting in the UK this year alone,1Figures up to 13 November 2021. including Bibaa Henry, Nicole Smallman, Sarah Everard and Sabina Nessa, and following the sentencing of the police officer murderer, Wayne Couzens, and subsequent revelations about the extent of police-perpetrated abuse, violence against women and girls and the woeful inadequacy of the state response has shot up the political agenda. There is no doubt that we are living in a moment where there is heightened national awareness of the problem of male violence against women and the need for change.
However, so far, government and police announcements of measures to tackle the problem have come nowhere near addressing the collective belief that women are not safe from male violence. The home secretary’s announcement at the Conservative party conference of a limited inquiry, currently without statutory powers, to learn from the Wayne Couzens atrocity and wider concerns regarding police-perpetrated abuse is entirely inadequate.
The truth is that those of us working on the ground know what many of the problems are and what needs to change so that women are not simply able to feel safe but also to live free from the fear of male violence that curtails our liberty and undermines our full participation in society. The problem, of course, is wider than criminal justice solutions and ultimately requires a war on misogyny and patriarchal culture. Clearly, this is a broader enterprise than criminal justice reform alone, but a transformation of criminal justice approaches could play a significant role in tackling the problem.
‘Appalling’ response to violence against women and girls
In 2016, the Centre for Women’s Justice (CWJ) was established as a legal charity to hold the state to account around violence against women and girls and challenge discrimination in the criminal justice system (CJS). Its mission and direction of travel was informed by key stakeholders, in particular those working on the front line to support victims and survivors of male violence. I founded CWJ from a background of feminist activism and legal work specialising in actions against the police, as well as advising women convicted of the murder of their violent partners in criminal appeals. Through this work, it was clear that criminal justice responses to male violence against women were ineffectual without an understanding of the underlying causes, which are rooted in structural inequality between men and women. Without this understanding and a determination to embed it across all criminal justice agencies, we will never even begin to adequately tackle the pandemic of male violence against women and girls.
It appears that CWJ’s entrance into the small but growing legal charity sector could not have been more timely. Since our establishment five years ago, we have seen the volume of prosecutions for rape and domestic violence collapse, the diversion of police investigative resources into mining the digital data of victims who report crime, and an increase in domestic violence under lockdown. The media has started reporting and highlighting the extent of police-perpetrated abuse.
There have been important legislative initiatives including the introduction of the offence of controlling or coercive behaviour under Serious Crime Act 2015 s76, the Modern Slavery Act 2015 and the current government’s flagship Domestic Abuse Act 2021. However, despite these important initiatives, there are some who do not benefit at all, particularly those with unresolved immigration status who fear reporting. And while some legislation provides a possibility of justice, there is a woeful lack of implementation, with failures to investigate, failures to apply protective measures, decisions not to prosecute, the disproportionate prosecution of women who offend as a consequence of abuse, and a lack of understanding of risk, which has led to the failure to adequately supervise dangerous men released on probation.
One of the fundamental issues that underlies the appalling CJS response is endemic victim blaming. Women who are raped are blamed for the way they dress, the way they walk home, how much alcohol or drugs they consumed, how flirtatious they were with the man before he raped her and so on. Women who are in violent relationships are blamed for remaining in the relationship, not reporting the violence to the police or reporting and then withdrawing the allegation, leaving the relationship and then returning to it. Victims of stalking are blamed for being paranoid, for reporting ‘trivial incidents’, for being attention-seekers and for wasting police time. The state has been historically reluctant to intervene in tackling forms of violence perpetrated within racially minoritised communities such as female genital mutilation and honour-based violence, but when it has overcome its cultural relativism, those women are blamed within their communities for bringing shame and dishonour.
At CWJ, we have published a manifesto, identifying 10 steps to transforming the CJS response to violence against women and girls. This is not a comprehensive list and does not focus on the introduction of new legislation. While there is a need for some new laws and for the reform of existing laws, such laws are worth little more than the paper they are written on without proper application and implementation. Implementation must be done in a way that is informed by an understanding of structural inequalities between men and women, and of intersecting oppressions around race, class, disability and other factors that impact on justice outcomes and engagement with the CJS.
The 10 steps
A summary overview of the 10 steps we have identified is provided below:
1. Radically transform the investigation and prosecution of crimes of violence against women and girls
Focus investigations and prosecutions on the suspect, not the victim, and stop victim blaming (in particular, limit the collection of personal data and records to material that is relevant and necessary in order to comply with disclosure requirements).
Ensure that women reporting crimes have sufficient and appropriate support to enable them to get through the process from report to court.
Pilot and introduce independent legal representation for rape victims, at least to assist them with the disclosure process and ensuring privacy rights.
Increase the volume of prosecutions in cases of violence against women, taking a more robust and courageous approach, one free from the influence of myths and stereotypes and creative as to tackling these.
Identify, investigate and prosecute the types of ‘lower-level offending’, such as indecent exposure, sexual harassment and crimes motivated by misogyny, which if unchecked are likely to lead to an escalation of dangerousness.
Identify and prioritise the investigation and prosecution of suspected perpetrators to those that present a risk to others – in particular, target repeat and serial offenders.
Put in place measures to reverse the marginalisation of multiply disadvantaged victims, in particular Black, Asian and minoritised women, those with mental illness and learning disabilities, prostituted, drug-addicted, and homeless women. Tackle and work towards the removal of the common barriers to reporting.
Ensure all investigation and prosecution teams are specialist, trained and accountable.
Treat cases of domestic abuse where there are no obvious signs of physical violence with equal seriousness, where, for example, there is evidence of controlling and coercive behaviour, stalking, threats to kill, and/or online abuse.
Immediately cease to use non-court powers such as community resolution in sex crimes and other forms of violence against women, recognising that all such cases are serious and require a criminal law response.
2. Implement the existing laws and measures, designed to tackle violence against women and girls
The police should use the powers they have to protect women at risk of violence. In our first police super-complaint, we highlighted the failure of police across the country to effectively apply protective measures. We identified four areas, including: the failure to arrest and bail perpetrators; the failure to use domestic violence and other protection orders; the failure to apply for restraining orders; and the failure to arrest for breach of non-molestation orders.
Apply the rules of corroboration and third-party disclosure correctly when investigating and prosecuting rape.
Where a decision is made to take No Further Action after a prosecution is commenced, allow victims to exercise their rights under the Victims’ Right to Review Scheme before formally offering no further evidence.
Ensure police officers understand and can identify coercive and controlling behaviour, stalking and harassment, and honour-based violence, and arrest for these offences.
Counter the lack of understanding about offences committed out of jurisdiction and/or where the offence was in the UK and the offender is now abroad.
3. End the criminalisation of victims
Stop wasting limited and valuable criminal justice resources on arresting and prosecuting those who offend as a consequence of coercion and/or who are victims.
Introduce new defences to enable women being prosecuted for offences they committed as a consequence of coercion and abuse to avoid criminalisation.
Reform sentencing guidelines so that the primary purpose is geared towards prevention and protection rather than the application of mandatory tariffs, which result in the excessive imprisonment of vulnerable women and others, and which can further punish their children and others they care for.
Expunge the criminal records of women whose convictions arose from being sexually exploited.
Set up a system to allow victims of male violence who were forced to commit offences as a result of coercion and abuse to apply for their criminal records to be filtered or expunged.
Provide a meaningful mechanism for victims who offend as a result of coercion or exploitation to challenge decisions to prosecute them.
Stop charging women with murder where there is evidence that they have killed as a consequence of abuse and instead charge with manslaughter.
4. Tackle police-perpetrated abuse
Institute a zero-tolerance approach to sexism and misogyny in the police and all criminal justice institutions.
Use an external police force to investigate all cases of domestic and sexual violence by police officers.
Treat abuse by officers while off-duty as potential misconduct that discredits the police service and undermines public confidence.
Remove officers accused of domestic or sexual abuse from roles working with victims of abuse, regardless of the outcome of investigations.
Create an independent, robust and transparent process for reporting and investigating allegations of abuse against police officers.
Criminalise the formation of sexual relationships by undercover police officers and officers who are in contact with a woman simply because she has reported a crime.
Ensure protections for whistle-blowers, and set up a robust system for colleagues with concerns about the conduct of their fellow police officers and encourage officers to use it.
5. Make all criminal justice agencies properly accountable
Create an accountable prosecution service that can be challenged effectively when it makes bad decisions to prosecute or not to prosecute.
Create meaningful legal remedies for those harmed by failures of the prosecution service and other criminal justice agencies.
Ensure that legal remedies that are effective at holding the state accountable, such as the Human Rights Act 1998 and judicial review, are not curtailed in their reach.
Improve accessibility of justice by maintaining and extending legal aid.
Ensure that individuals and their supervisors are held accountable for failures in how cases are conducted.
6. Understand the problem through research and the publishing of meaningful disaggregated data
Disaggregate data on male victims and female offenders so that the scale and gravity of male violence compared with female offending may be properly understood.
Collect and analyse data so we may understand and therefore tackle better the experiences of those with intersecting oppressions including Black, Asian and minoritised women and girls, migrant women, those with disabilities, LGBT, etc.
Introduce a femicide oversight mechanism to ensure that learning from inquiries, investigations, reviews and inquests is shared and implemented.
7. Explore and implement reforms to the criminal court system to ensure proper equality before the law and an end to victim blaming
Introduce specialist domestic abuse courts across the country.
Provide training to judges and magistrates on a gender- and race-informed approach, and introduce further necessary safeguards and guidelines on myths and stereotypes.
Explore and pilot models of independent legal representation for victims of sexual violence with plans to ensure that every victim has access to independent legal advice on privacy rights and the Victims’ Right to Review Scheme.
Consider how better to ensure that myths and stereotypes about rape and other forms of male violence are eliminated from trials, ensuring a jury understands what they are and how to separate them from the evidence presented.
Create a system to allow victims to provide feedback on the court process, so that judges are aware of what problematic patterns may exist in how trials are being conducted.
8. Ensure that victims who do engage with criminal justice processes are adequately and appropriately supported
Fund support services to ensure that there are adequate specialist women-led services and specialist ‘by and for’ services designed to support Black, Asian and minoritised women, disabled women, and those with other intersecting oppressions.
Ensure all commissioning of services for women is underpinned by proper equalities analysis.
Introduce and fund independent legal advice and representation for victims in criminal proceedings.
Ensure proper access to specialist, high-quality, non-medicalised counselling and therapy as and when victim/survivors need it, including pre-trial therapy.
9. Understand who represents risk and ensure that criminal justice interventions are primarily directed towards them
Conduct evidence-based research to enable the identification of offenders that present risk to others and include those most likely to reoffend (this is not about the use of algorithms to assist police but about understanding discrimination and deficits in the CJS response so that they can be remedied).
Reform probation services, ensuring adequate resourcing with skilled staff who have an educated understanding of what sort of offenders represent risk and danger, and to ensure that they are able to effectively monitor those most at risk of violence.
Transform the prison system, reducing its population to only those who represent a danger to others and require containing.
Ensure parole decisions are focused on a real evaluation of risk to the public.
10. Related court and justice processes – ensure consistency and end the misuse of other types of legal proceedings by perpetrators
Ensure consistency of understanding and application of laws in criminal, family and other civil justice systems.
Ensure awareness of, and combat the misuse and manipulation of, legal and court processes by abusers and coercive controllers, particularly in the family court.
Stop the misuse of defamation proceedings to silence women who share their experiences of abuse on social media.
 
1     Figures up to 13 November 2021. »

About the author(s)

Description: Harriet Wistrich - author
Harriet Wistrich is a solicitor and founding director of the Centre for Women's Justice.