Abstract
This is the second edition in a three-part series of special editions to consider adult vulnerability in the criminal justice system. The first special issue was launched at an event, entitled ‘Power Imbalance: Adult Victims in the Criminal Justice System’, and jointly funded by the Society of Legal Scholars and Sage Publishing. The event and the special issue focused on, inter alia, the emergence of a bespoke defence for adult victims of human trafficking,
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and the introduction of offences criminalising modern-day slavery,
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revenge pornography
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and coercive and controlling behaviour.
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The President of the Society of Legal Scholars, Professor Richard Taylor, said: The Society is delighted to have been able to provide support for this very well thought out event which examines a set of increasingly serious problems for vulnerable people in society and which will help in identifying effective mechanisms for their protection and safeguarding. The potential for academic research to improve the situation on the ground for victims and the disadvantaged is a powerful incentive for all legal scholars and the Society of Legal Scholars is grateful to the Northumbria Law School for organising this very timely event.
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The first article, by Ana Speed and Kayleigh Richardson, entitled, ‘Two Worlds Apart: A Comparative Analysis of the Effectiveness of Domestic Abuse Law and Policy in England and Wales and the Russian Federation’, examines s 76 of the Serious Crime Act 2015 (‘SCA 2015’) which introduced the new criminal offence of ‘controlling or coercive behaviour in an intimate or family relationship’. This is just one of many steps the UK government have taken in recent years to acknowledge the different forms of domestic abuse and power imbalances that can be present in intimate relationships. In contrast, in February 2017, the Russian government passed an amendment to the Russian Criminal Code to decriminalise some forms of assault, a step which many human rights activists have opposed. This article compares the seemingly dichotomous approaches to domestic abuse adopted by England and Wales and Russia and examines the effectiveness of both approaches in deterring domestic violence, providing adequate support for victims and meeting state obligations under international law. There has been extensive commentary on the approach to domestic abuse in England, the USA and Australia. In comparison, consideration of the approach in the Russian Federation is limited. This is in part due to the approach taken in Russia to dealing with domestic abuse as a private issue and the associated lack of available data. This article seeks to go behind closed doors to explore the Russian approach to tackling domestic abuse in a way that it has not previously been considered.
The second article, by Dr Brenda Midson, entitled, ‘Innocent Victims and Vulnerable Offenders: Legal Responses to Impaired Adults Who Kill Children’, focuses on child homicide and the array of circumstances in which offenders are suffering from acute mental distress. The article discusses the myriad of factors impacting on an offender’s ability to think rationally, which may not amount to any recognised disorder. While it is imperative that we prosecute and prevent child homicide, in doing so we must avoid overlooking the realities of other vulnerable people. In rejecting a binary approach to victims and offenders, this article argues that sometimes offenders may also be vulnerable due to an impaired ability to reason or to act in a truly voluntary way.
New Zealand has repealed the defence of provocation and, apart from infanticide, offers no mitigation by way of diminished responsibility. Offenders who commit child homicide, but who do not meet the legal definition of insanity, will be liable for murder even though their capacity may have been impaired or overborne by circumstances. While, in this regard, New Zealand law is particularly deficient, there is an argument that other jurisdictions also fail to adequately respond to vulnerable offenders who kill children. This article seeks to outline the failures in existing legal frameworks to assign legal responsibility for these vulnerable offenders in a way that corresponds with their moral culpability. The article identifies and evaluates proposals for reform. As Ulbrick and others observe, in the context of arguments about defensive homicide and mentally impaired defendants, it is critical that we ‘advocate for a greater range of legal responses to cover the nuance and complexities of lethal violence’.
In the third article, ‘Preventing the Criminalisation of Children Who Have Been Victims of Exploitation and Grooming’, Professor Ray Arthur and Lisa Down consider the recent furore and moral panic concerning ‘South Asian men’ grooming white girls for sexual exploitation. This moral panic derived from a number of well-publicised cases, the most infamous of which took place in Rochdale, Greater Manchester. Further grooming rings involving South Asian men and white underaged girls were simultaneously exposed in Derby, Shropshire, Oxford, Telford, Middleborough, Preston and Rotherham.
Grooming children has been criminalised by s 15 of the Sexual Offences Act 2003, which covers ‘the behavior of an offender who meets, or seeks to meet, a child with the intention of committing a sexual assault, if he has met or communicated with that child on at least two earlier occasions’. Section 67 of the SCA 2015 makes it a criminal offence for anyone aged 18 or over to intentionally communicate with a child under 16, where the person acts for a sexual purpose and the communication is sexual or intended to elicit a sexual response. The offence applies to online and offline communication, including social media. Adult groomers face up to two years in prison and being automatically placed on the sex offenders register.
These laws are intended to protect children from abuse and exploitation. However, child victims who have been abused by gangs and coerced into offending may still be liable for prosecution for any offending they have engaged in. These offences will also be recorded on their criminal records. Fear of being prosecuted may stop victims coming forward and prevent survivors from moving on with their lives. Such children are often perceived as having made a choice and criminalised. Such children may not even consider themselves to have been exploited or coerced. This article will examine how the law can be reformulated to ensure protection of children from sexual exploitation and also ensuring children are not charged for committing crimes while being groomed or coerced.
The final article by Dr Rachel McPherson is entitled ‘Battered Woman Syndrome, Diminished Responsibility and Women Who Kill: Insights from Scottish Case Law’. Using Scotland as a case study, this article maps the development of Battered Woman Syndrome in law. It looks to the potential space for development that has been created by the recent case of Graham v HM Advocate, concluding that such a move would be an important step and one with significant implications for domestic abuse policy and the treatment of female accused more widely.