Guideline on Overarching Principles - Essay Example

?The SGC’s Definitive Guideline on Overarching Principles: Domestic Violence (2006)   Introduction Initially, domestic violence was regarded by law enforcement as “rubbish work” and was largely dismissed as private disputes.1 However, with the persistent incidents of domestic violence and its potential for serious harm, the government has taken a number of policy and legislative steps to deal with domestic violence.2 There has been a determined shift away from the previous view that the domestic nature of domestic violence mitigated against its seriousness to a view that its domestic nature is an aggravating factor.3 The shift in attitudes toward the serious nature of domestic violence has been spearheaded by government policies and legislative initiatives. In order for policy objectives to be effective, legislation is necessary. If sentencing and punishment are left to the absolute discretion of judges, the results would be uncertain and unpredictable.4 The main problem with the government’s policies toward combatting domestic violence is the fact that domestic violence is not a specific offence.5 Domestic violence can be covered by any number of statutory and common law offences ranging from homicide to harassment.6 For the purposes of sentencing and punishment, the various offences that can be grouped together as domestic violence were identified by the Sentencing Guidelines Council (SGC).7 Therefore while not specifically legislated as a crime, sentencing and punishment policies were constructed to bring unify the various offences that could be characterized as domestic violence and to create a sentencing culture that reflects the seriousness of domestic violence.8 This research study analyses the extent to which the SGC’s sentencing guidelines on domestic violence identifies and draws attention to the pervasive problem of domestic violence and aids in the government’s initiative to combat domestic violence. The Nature and Scope of Domestic Violence The Home Office reported that of all violent crimes, “victims of domestic violence” are “more likely to experience repeat victimisation” with 73% of domestic violence incidents representing “repeat” offences.9 The report does not indicate whether or not the perpetrator is the same, nor does the report indicate whether or not the perpetrator was previously convicted and sentenced. The Home Office’s report also notes that the British Crime Survey (BSC) estimated that for the year 2010/2011 there were approximately 392, 000 “incidents of domestic violence”.10 This figure represents an increase of 35% over the number of domestic violent incidents for the year 2009/2010. The BCS estimates do not reflect the actual number of incidents of domestic violence because domestic violence is well-known for “under-reporting”.11 The Home Office’s report therefore indicates that the SGC’s sentencing guidelines have had little, if any impact on deterring incidents of domestic violence. It can also be argued that the SGC’s sentencing guidelines have aggravated the tendency of victims to refuse to report incidents of domestic violence. Since more than half of the domestic violence incidents occur within an “existing relationship” and typically involve a male as perpetrator and a female as victim, female victims are perhaps unwilling to report their domestic partners for fear of repeat assaults or for fear of losing financial support.12 Thus, the SGC’s sentencing guidelines arguably have a difficult task in expressing the seriousness of domestic violence. If victims do not report incidents of domestic violence, sentencing policies have no real impact unless they are framed in a way that encourages reporting. Underreporting is a cause for serious concern. Burton reports that there are a number of studies indicating that when men kill their current or former partners it is typically part of an “escalating pattern of domestic violence”.13 Moreover, when women kill their current or former partners it is usually an act of self-defence.14Thus all indications are therefore that domestic violence of any sort is a serious concern because it can lead to a male killing his partner/former partner or a female killing her partner/former partner, although for different reasons.15 The House of Commons Justice Committee reported that domestic violence is among Britain’s “greatest criminal problems” and it accounts for 25% of all violent crimes.16 The House also documented that women suffer the greatest harm as a result of domestic violence. Women are subjected to rape, strangulation, intimidation, threats, “post-separation violence and are most likely to be killed by current or former male partners”.17 Based on the scope and nature of domestic violence in the UK, it would appear that the SGC’s sentencing guidelines were intended to respond to the social problems associated with domestic violence. However, much of those problems persist. It would therefore appear that the main purpose of the SGC is to provide the victim who reports incidents of domestic violence with some form of retributive justice rather than to rehabilitate the perpetrator and to deter future incidents of domestic violence. Background to the Sentencing Guidelines Council’ Guidelines on Sentencing Domestic Violence Offenders The Sentencing Council was originally created by the Criminal Justice Act 2003,18 and now governed by the Coroners and Justice Act 2009.19 The SGC is authorized to prepare sentencing guidelines relative to either a specific offence or a class of offences or a specific class of offenders.20 In preparing sentencing guidelines, the SGC is required to take into account the “the need to promote public confidence in the criminal justice system”21 and the “effectiveness in preventing re-offending”.22 Thus, the SGC’s duties are not merely to classify an offence and to establish the appropriate punishment, but to ensure that the sentence operates as a deterrent against re-offending. Moreover, the courts are statutorily bound to follow sentencing guidelines constructed by the SGC.23 This provision captures the need for consistency in sentencing and arguably seeks to temper the wide discretionary powers of the courts to reduce or extend sentences. Even so, Section 125(1) directs that the courts may not follow the sentencing guidelines if “the court is satisfied that it would be contrary to the interests of justice to do so”. 24 It would therefore appear that the court retains a wide discretionary power and thus the consistency in sentencing contemplated by the creation of the SGC may be compromised. The Criminal Justice Act 2003’s creation of the SGC is intended to provide the key connecting factor between the courts and the goals of the criminal justice system. The goals of the crimination justice system include reducing crime, preventing crime, responding to fear of crime, responding to the public’s perception of crime and fostering public confidence in the criminal justice system.25 The Home Secretary, the Rt. Hon. David Blunkett MP, requested that the Sentencing Advisory Panel examine sentencing with respect to domestic violence. The Home Secretary was concerned that the courts were not treating domestic violence with the same sort of seriousness that it treated other violent crimes and felt that sentencing would be able to change this judicial culture.26 It is against this background that the SGC’s sentencing guidelines for domestic violence cases were prepared. The Sentencing Guidelines Council’s Overarching Principles: Domestic Violence The SGC states that its sentencing guidelines are applicable to all cases of domestic violence as defined by the Crown Prosecution Services (CPS). To this end the CPS defined domestic violence as: ...any incident of threatening behaviour, violence or abuse [psychological, physical, sexual, financial or emotional] between adults who are or have been intimate partners or family members, regardless of gender or sexuality.27 In other words virtually any crime violent or non-violent that occurs in a domestic relationship is a crime of domestic violence. Moreover, there is a recognition that despite the fact that women are typically the victims of domestic violence, males can be victims of domestic violence. The CPS has since changed its definition of domestic violence and it is not clear whether or not the SGC remains bound by the previous definition or has adopted the newer definition of domestic violence. To this end, the CPS’s 2009 policy statement relative to the prosecution of domestic violence cases defines domestic violence as: ...a range of controlling and coercive behaviours, which are used by one person to maintain control over another with whom they have, or have had, an intimate or family relationship.28 Courts may very well adopt this more recent definition of domestic violence since the SGC claims that its guidelines are to be used in all cases that fall under the CPS’s definition of domestic violence. There is no commitment by the SGC to bind the court to the definition provided in its sentencing guidelines. This definition of domestic violence is problematic because it is unclear whether or not the behaviour refers to a category of offences or to one particular offence or offender. Should the courts classify the behaviours of one offender as coercive or controlling or regard this definition as applicable to all offences that might constitute domestic violence? Regardless, the Home Secretary intended to influence change in the judiciary’s treatment of domestic violence as a specific class of offenders. The resulting SGC sentencing guidelines were therefore intended to identify the class of offenders who would be characterised as domestic violence offenders and to establish a sentencing framework reflecting a penal policy that treated this class of offenders just as seriously as other violent offenders. As Easton and Piper explained, when states devise “punitive” responses to specific types of behaviour, the appropriate responses “will rest on a particular model of human behaviour”.29 Thus the SGC identified a particular model of behaviour requiring a specific penal response: domestic violence offenders. Since domestic violence is not a specific offence, the SGC culled together specific behaviours that are actual criminal offences and brought them under the umbrella of domestic violence. Thus an offender may be charged with and prosecuted for common assault on a current partner or a former partner or a family member. In sentencing the offender, the court is guided to regard the offender as a domestic violence offender and to apply the SGC’s sentencing guidelines in determining the appropriate offender. In this regard, the first step for the court is to assess the seriousness of the offence. The SGC advised that: offences committed in a domestic context should be regarded as being no less serious than offences committed in a non-domestic context.30 As noted, the prevailing attitude within the criminal justice system was to regard domestic violence as serious as other violent crimes. The SGC’s domestic violence sentencing guidelines, instructs courts to abandon this way of thinking. It has been argued that penal policies and practices should always be fair in penalising people for “what they have done” and not for “what/who they are”.31 Thus the familiarity between victim and offender should no longer mitigate the violence. In fact, the SGC’s guidelines state that the degree of familiarity between the offender and the victim in domestic violence cases can be an aggravating factor. To this end the SGC defines and abuse of trust and/or power in the context of domestic violence as an aggravating factor. Where courts are satisfied that the crime was committed in a way that indicates an abuse of trust and/or power, the offender should be assessed with “higher culpability”. 32 It appears that designating abuse of trust and/or power as an aggravating factor is informed by beliefs that theories of restorative justice are not suited to sentencing and punishing domestic violence offenders. Restorative justice seeks to bring victim and offender together to ensure that the offender gains some empathy for and understanding of the harm he/she has caused the victim. In this regard, restorative justice theories often align the concept with “reparation”.33 In the domestic violence context, the relationship has typically reached a point where it can best be described as irreparable. Moreover, domestic violence is often characterised as coercive behaviour by the perpetrator to either punish the victim for not doing as the perpetrator wants or to get the victim to do as the perpetrator wants.34 The Home Office acknowledges that restorative justice is unsuited to domestic violence cases. Women’s rights group understandably view restorative justice as merely going back in time to a reprehensible attitude toward domestic violence. In this regard, restorative justice is only suitable to cases where the victim withdraws the charge and/or returns to the relationship.35 The SGC’s sentencing guidelines appears to take the position that restorative justice is unsuited in cases where there is an abuse of trust and/or power and instead leans closer to theories of just deserts or rather retributive justice. Both theories take the position that the offender deserves punishment that is commensurate with the harm caused.36 The classic statement giving way to theories of just desserts and retributive justice are found in the words of Immanuel Kant who said in 1952 that punishment must be “pronounced over all criminal s proportionate to their internal wickedness”.37 Fish refers to retributive justice models of punishments as lex talionis or an eye for an eye concept. The idea is to tailor sentencing policies so that they reflect “restraint and proportionality as moral principles of punishment”.38 The SGC’s sentencing guidelines arguably reflects the retributive or just deserts sentencing theory as it identifies an abuse of trust and/or power as aggravating factors rendering the offender deserving of harsher punishment than in other cases where these factors are absent. Where the victim is particularly vulnerable this will act as an aggravating factor. A victim may be more vulnerable to domestic violence for “cultural, religious, language, financial or other reasons.”39 In these circumstances, the victim may be trapped in the abusive relationship and cannot escape. Thus the SGC advises that these factors would designate the victim as vulnerable, making the domestic violence offender particularly deserving of harsher punishment, thus incorporating retributive justice concepts of punishment. Other aggravating factors are; exposing children to domestic violence; exploiting child contact orders/arrangements to commit domestic violence offences; a history of violence or threats; a history of disobeying court order and forcing the victim to vacate the home.40 Taken together these aggravating circumstances reflect the pervasive problem of domestic violence and the widespread damages it causes. Firstly, designating the offender’s history of domestic abuse and disobeying court orders seeks to address the pervasive problem of repeat victimisation and likewise permits the court to look at the offender’s antecedents and to order a social services report. It would appear that even in circumstances where the offender has not been previously convicted, prior bad acts will be taken into account in sentencing and regarded as aggravating circumstances. Secondly, the collateral damages are observed in taking into account the exposure of children to domestic violence. Thus when children witness domestic violence, the perpetrator assumes responsibility for the damages this may cause to the child and as such will receive a harsher sentence. Finally, where the victim is forced to vacate the home, the offender can expect to receive a harsher sentence. Thus elements of culpability and proportionality are reflected in the aggravating factors and retributive justice is the obvious outcome contemplated. Arguably, the SGC’s aggravating factors are also informed by deterrence theory. Deterrence theory holds that individuals will “avoid violent behaviour because they fear sanctions”. 41The rationale is that a “would-be or actual” perpetrator will most likely avoid violent behaviour if he/she anticipates specific sanctions.42 Based on the deterrence theory, it can be argued that the SGC’s aggravating factors are aimed at reducing or preventing the extent of harm caused by domestic violence, as well as the incidents of repeat offending. However, treating domestic violence as just as serious as other non-domestic violence offences is intended to deter the incidents of domestic violence altogether. Mitigating factors follows from a general perception that in establishing penal policies courts and policy-makers must take account of the fact that not all crimes of a specific characteristic should be treated the same way in the sentencing process. As Easton and Piper caution, “commensurate punishment is not always the ‘just’ solution”.43 Courts are directed to take mitigating factors into account when determining the appropriate sentence. The first mitigating factor is “good character”. 44However, good character alone will not mitigate a sentence. The court must take into account that one of the reasons domestic violence is described as an invisible crime is because of the offender’s seemingly good character. Thus the courts must accept that the perpetrator’s conduct away from the domestic environment has no bearing on his behaviour inside the home.45Where the evidence establishes a pattern of domestic violence, good character evidence will therefore not mitigate sentencing. It is only in cases where the offence is an “isolated” episode will good character be of any relevance.46 Provocation can also be a mitigating factor, provided it is factually supported. The SGC however, recognizes that provocation is a subjective concept and cautions that the court in considering whether or not provocation can be a mitigating factor, the court must determine: ..whether in the circumstances the alleged conduct amounts to provocation sufficient to mitigate the seriousness of the offence. For provocation to be a mitigating factor it will usually involve actual or anticipated violence including psychological bullying.47 Moreover, the SGC advises that provocation will generally be more persuasive as a mitigating factor “if it has taken place over a significant period of time.”48 The difficulty with provocation as a mitigating factor is that it supports a culture of vigilante justice, in that it implicitly permits an abuse of power by offering leniency for violent offenders who are induced by a weaker party. Certainly, violence against children can never be mitigated on the grounds that the child provoked the violence. There is typically an imbalance of power position between a child and an adult. It is hoped that the courts will determine the more appropriate cases in which provocation can act as a mitigating factor. The SGC advises that as a general principle sentencing domestic violence should involve culpability and the victim’s wishes should not be a determining factor. However, if the court is satisfied that the victim wishes to resume a relationship with the offender, those wishers are authentic and the victim will not be exposed to further violence, the court may take the victim’s wishes into consideration.49 The court is also permitted to take into account the interests and wishes of the children impacted by a sentence which will likely disrupt the family structure.50 It would therefore appear that if the relationship and the family structure are reparable, the wishes of the victim and any children involved will serve to mitigate the sentence. Thus this particular mitigating factor is consistent with the aims of restorative justice although it does not state how the perpetrator should make amends to the victim. It would obviously be up to the criminal justice system and in particular the sentencing judge, whether or not to order the family participate in a restorative justice programme. This is perhaps the class of situation that the Home Office contemplated as amenable to restorative justice initiatives.51 Conclusion The SGC consciously takes the position that domestic violence is just as serious as any other non-domestic violent crime. In fact, the SGC goes so far as to imply that domestic violence can be more serious by listing a number of aggravating factors. Overall, the SGC reflects retributive justice theory of punishment in both its classification of domestic violence and listing of aggravating factors. Implicitly, mitigating factors leaves open the door for restorative justice theory to be applied. Although the SGC’s sentencing guidelines are not perfect, they represent a good step in the right direction. Many of the underlying problems affecting a flawless domestic violence sentencing policy are rooted in the fact that it typically involves a family and victims are often reluctant to report or prosecute incidents of domestic violence. Thus balancing these issues may never be reconciled. Bibliography Ashworth, A. (2010). Sentencing and Criminal Justice. (Cambridge, UK: Cambridge University Press, 2010). Burton, M. (2008). Legal Responses to Domestic Violence. Abingdon, Oxon: Routeldge-Cavendish. Carlsmith, K. M.; Darley, J. M. and Robinson, P. H. (2002) “Why Do We Punish? Deterrence and Just Deserts as Motives for Punishment.” Journal of Personality and Social Psychology, Vol. 83(2): 284-299. Chaplin, R.; Flatley, J. and Smith, K. (July 2011). “Crime in England and Wales, 2010/2011”. Home Office National Statistics. CPS Policy for Prosecuting Cases of Domestic Violence, (March 2009). Coroners and Justice Act 2009. Criminal Justice Act 2003. 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