Abstract
This article explores the vulnerability of many UK female offenders and their experiences of domestic abuse that drives their criminality. Now that coercive control by domestic partners is more widely understood, criminal defences should take into account the impact it has upon domestic abuse victim/defendants. The Prison Reform Trust campaigned for the introduction of legal reform that would end convictions of people who committed crimes as a direct result of domestic abuse victimization. The reform has been considered during the debates on the 2021 Domestic Abuse Bill; however, the government rejected the proposal. This article considers how the application of domestic abuse defences can reduce the female prison population and discusses why legal reform is necessary.
Introduction
This year celebrates the arrival of the Domestic Abuse Act of 2021, a ‘once-in-a-generation opportunity to transform the response to this terrible crime’ (HM Government, 2019, p. 1). It has provided several statutory provisions relating to criminal law, such as introducing new offences following successful campaigning from women's rights groups, academics, lawyers, and MPs, such as Jess Phillips.
From the outset, the Domestic Abuse Bill contained minimal criminal law elements and was absent any inclusion of defences that could be raised by those whose offending is driven by domestic abuse. Further campaigning, with early impetus from the Prison Reform Trust, did result in amendments being proposed at the House of Lords’ stage. However, despite powerful arguments put forward by Baroness Kennedy (HL Hansard, 2021), a life peer of the House of Lords and criminal barrister, all were rejected by the government. This is considered a blow to those campaigning for greater recognition of the role domestic abuse plays in the lives of women offenders and who desire a fairer justice system that fully takes this factor into account in decisions throughout the justice process. Despite this, the Domestic Abuse Bill did provide opportunities for domestic abuse advocates to generate debate about the issue of defences. Yet, it is argued, greater theoretical discussion and further campaigning are needed to continue to lobby for change. This article will explore how domestic abuse drives criminal offending, particularly for women offenders, and how the criminal law in England and Wales fails to take this defence sufficiently into consideration. Further, these omissions conflict with the approach taken towards victims of modern slavery, who can rely on a defence of compulsion for many crimes, provided by s. 45 Modern Slavery Act 2015. This article thus proposes that legal reform is justified, creating a coercive control approach to defences where the offender's crime is driven by domestic abuse.
Vulnerable Women Offenders
Women enter prisons with multiple and complex needs such as mental ill health, substance misuse, and a history of abusive experiences (Anumba et al., 2012; Bartlett & Hollins, 2018; Corston, 2007; Gelsthorpe et al., 2007). Many have reported being victims of physical, emotional, and sexual abuse as children -- 53%of female offenders compared to 27% of male offenders in the UK (Ministry of Justice, 2012). Estimates of the number of women in prison who have experienced domestic abuse as adults are considered to be understated (Gelsthorpe et al., 2007), with the Prison Reform Trust finding 57% of women offenders have reported interpersonal violence (2017). That women offenders have different needs than men and therefore require a gender-responsive treatment approach during incarceration has been well documented (Carlen, 1985; Evans, 2017;Worrall & Gelsthorpe, 2009).In the UK, this led to the introduction of a government Female Offender Strategy in 2018, albeit with questionable delivery of its aims (Booth et al., 2018; Prison Reform Trust, 2019). The strategy prioritized reducing the female prison population, achieving this by addressing women offenders’ vulnerabilities, in part through funding domestic abuse services (p. 7). In fact, this has not materialized, with the government about to fund a further 500 female prison beds, at the cost of £150 million (Prison Reform Trust, 2021).
The recognition of female offenders’ experiences of domestic abuse is important to prison reform and potential legal reforms as it often plays a part in female offending and reoffending (Barlow, 2016; Vickers & Wilcox, 2011). For women offenders dealing with interpersonal violence, navigating safety within the relationship becomes a priority. The legal issue of personal responsibility must be underpinned by an understanding of how fear operates to undermine the individual's autonomy, leaving them vulnerable to more abuse and offending. Short prison sentences can worsen a woman's ability to escape the abuse and make their suffering more severe; leaving is more difficult as women face financial hardship, lack of accommodation, social support deficits (Prison Reform Trust, 2017, p. 24) and disruption to their roles as mothers (Baldwin, 2015). Community orders (of protection) can be beneficial, particularly where they include activities that address the associated trauma. Vickers and Wilcox note that adhering to the orders can be difficult for women who remain in abusive relationships, and this is reflected by the 13% of women who are in UK prisons because of a breach of a community order (2015). Under such circumstances, the woman may calculate that it is safer to comply with the demands of the abuser rather than with the terms of the order.
One tactic for diverting women offenders from the prison system is to consider whether they are necessarily blameworthy for their offending when it is driven by domestic abuse. Victim/defendants – people who experience domestic abuse on an ongoing basis and are coerced into committing a crime by their abuser – have come to the attention of women's rights campaigners, activists, and academics. High profile cases have been used to illustrate the blindness of criminal law and the criminal justice system to the experiences of domestic abuse and their role in a woman's offending in cases where women have killed their partners. In a highly publicized case, Sally Challen was convicted of murder and sentenced to life imprisonment with a minimum tariff of 22 years, reduced to 18 on appeal in 2011,after she killed her husband following decades of coercive and controlling behavior (R v Challen [2012] 2 Cr App R (S) 20. She successfully appealed her conviction for murder on the basis that the coercive control had not been considered at her original trial and would have been relevant to a defence of manslaughter by reason of diminished responsibility (R v Challen [2019] EWCA 916). A retrial was ordered; however, the prosecution accepted a guilty plea for manslaughter by reason of diminished responsibility, and Challen was released having served 9 years’ imprisonment.
When criminal defences are successfully argued at trial, they divert vulnerable victim/defendants from the prison system. In cases of homicide, this is unlikely to occur unless a plea of self-defence is successful. This defence is of limited use as it requires a response to force or threat of force to be a proportionate one (Carline & Easteal, 2014). However, activism and academic advocacy have led to the legal reform of partial defences to murder which make experiences of domestic abuse relevant, even if to a limited degree (Bettinson, 2019; Edwards, 2010). The Challen case saw the efforts of the organization Justice for Women (www.justiceforwomen.org.uk/sally-challen/), who supported her defence, with the courts accepting the significance of coercive control on a victim/defendant's mental state.
While campaigns to develop a fairer criminal justice response for women who kill their abusive partners have led to some legal reform, these cases represent only a small number of women offenders. 1 The Criminal Bar Association and the Prison Reform Trust, alongside legal advocates, campaigners, and academics have now begun to focus on less serious offences committed by abused women, although such reforms would extend to all abused people (Criminal Bar Council, 2017; Loveless, 2014; Prison Reform Trust, 2017). Their position is that prison operates as a double failure for these women ‘since we didn’t tackle the abuse and blame them for its consequences’ (Prison Reform Trust, 2017, p. 2). Campaigners argue that a new statutory defence is needed for those who commit crimes that are driven by the domestic abuse in order to remove criminal liability from them. This would also have the effect of reducing the UK's women's prison population, a key priority under the UK Government's Female Offender Strategy (Ministry of Justice, 2018, p. 7).
An opportunity to advance this legal reform came in the shape of the Domestic Abuse Bill, now the Domestic Abuse Act 2021, enacted in April. The Bill represented the government's commitment to take domestic abuse seriously. One of its main aims was to prevent domestic abuse (HM Government, 2018).Central to the consultation process were the themes of raising both public and professional awareness, providing protection and support to victims, responding to and deterring perpetrators, and driving better and consistent domestic abuse responses across all regions and agencies. Protection and support to victims included female offenders, with domestic abuse being recognized as a key factor in the offending of some women (p. 33). This process represented a chance for campaigners to strengthen the pathway to divert women from incarceration via the introduction of a new defence for domestic abused victim/defendants. Unfortunately, this did not materialize as the government rejected the proposed defence, for reasons explored below. The campaign to support a new defence was led by the Prison Reform Trust and although ultimately unsuccessful on this occasion, the campaign has provided the opportunity to raise awareness about this issue.
Domestic Abuse Drives Offending Behaviour
Many women offenders’ crimes are a direct result of duress or coercion placed upon them by their male partners or relatives (Barlow, 2016; Corston, 2007). Typically, offences that are committed as a result of coercive control are drug related, including theft in order to support a partner's drug habit (HM Government, 2018). The Prison Reform Trust found that nearly half of women offenders reported having done this (48%) compared to 22% of male offenders (Prison Reform Trust, 2017, p. 8). Women offenders can find themselves facing the threat of harm if they do not comply with their abuser's demands to commit offences. Some victims of domestic abuse commit violent crimes, having a reactive response to the abuse they have experienced. The result can involve an attack on the abuser which in extreme cases can be fatal, such as the case of Challen. In these circumstances, the reaction occurs at a tipping point for the woman, where she feels she has no other means of escaping the abuse. In some cases, other women have not committed an offence. Instead, they have taken responsibility for their partner's crimes, fearing physical repercussions if they do not do so (Prison Reform Trust, 2017, p. 10). Such coercive control makes the women victims of an offence under s. 76 Serious Crime Act 2015, which prohibits the use of such behavior by intimate partners and family members. In addition, offending can occur as women may be misusing substances as a coping strategy whilst being abused (Barlow, 2016; Prison Reform Trust, 2017, p. 11).
Female offenders have limited opportunities to leave their abusive relationships as they often have complex, multiple needs, making them ineligible for women's refuges, which are often ill-equipped to deal with these needs (Harris & Hodges, 2020; Vickers & Wilcox, 2011). Many are mothers who have additional concerns regarding the welfare of their children, such as the fear that social services will remove the child/children and place them into the care system should they disclose the domestic abuse occurring within the family home (Prison Reform Trust, 2017, p. 8). These barriers to leaving an abusive relationship and seeking support can contribute to further offending. Unable to access money or accommodation and needing to support their children, female offenders can fall back onto their abusive male partners or form new, abusive, relationships, and the offending cycle continues. For Vickers and Wilcox, women's reoffending would be reduced should ‘their basic safety and right to live free from power and control’ be targeted (2011, p. 24).
The ability of female offenders to secure safety and leave a coercive relationship is thwarted by treatment under criminal law when they enter the criminal justice system as a victim/defendant. There is little recognition of the impact domestic abuse has in driving a female offender's criminality and how that reduces her blameworthiness in the continuum of available criminal defences. This leads Loveless to conclude that ‘[n]on-culpable abused women are in prison when they ought not to be’ (Loveless, 2014). Baroness Kennedy argues that ‘there is a double standard…as soon as you move to that which involves crime and a woman, or anybody who is abused… in the dock, then suddenly your compassion for the issue of domestic abuse somehow dissipates’ (HL Hansard, col. 2291). For this reason, the Prison Reform Trust led calls for a new defence to be introduced into the Domestic Abuse Act 2021 to take into account the reduced culpability of the offender driven by abuse.
Domestic Abuse as Coercive Control
To appreciate arguments seeking to introduce a new statutory defence for victim/defendants of domestic abuse, it is useful to understand the concept of coercive control in intimate relationships. The concept has been articulated extensively by Stark (2007), although it has earlier roots (Dutton & Goodman, 2005). Stark explains that coercive control involves intentional acts on the part of an abuser designed to generate fear and intimidation in their relationships in order to ensure that their partner succumbs to their demands. The control and coercion are possible as the abuser employs credible threats to gain control over their victim, establishing a cage of domination around them (Stark, 2007).The threat is credible as there are clear negative consequences for noncompliance, such as threats of physical, sexual harm, or a threat that disrupts the victim's everyday life, such as exposure of personal information, personal images, withholding financial resources, or damage to property or harm to others (Dutton & Goodman, 2005, p. 746).
Coercive control is best understood as an ongoing strategy or pattern of behavior aimed at intimidating, isolating, and controlling the victim, impacting upon every aspect of the victim's life (Kuennen, 2007). As the coercion increases, the power imbalance in the relationship shifts with ‘the subjugated party becom[ing] less capable of fending for herself and therefore [she] perceives herself as increasingly in need of the dominator’ (Dutton & Painter, 1993, p. 107). Victims suffer trauma, which is expressed most powerfully by the fact that both suicides and their attempts are greatly increased among victims of coercive control (Aitken & Munro, 2018). Victims suffer from the experience of entrapment, which leaves them feeling helpless and terrified (Herman, 1997).
Certain groups are more vulnerable when domestic abuse intersects with other characteristics such as ethnicity, race, and immigration status, which Sisters for Change, an international NGO addressing violence against women and discriminatory practices, has noted ‘cause multiple or intersectional discrimination which has a direct impact on black, minority ethnic victims’ experience of violence and will inform their response to it’ (Sisters for Change, 2017). This has significance for the prison population, where 27% identify as Black, Asian or Minority Ethnic, while making up only 14% of the population in England and Wales (Ministry of Justice, 2020).
Prior to the enactment of England and Wales’ coercive control offence under s. 76 Serious Crime Act 2015, society did not have the language to articulate the behavior or the effect it had on its target. It therefore went unidentified in the criminal justice system. The articulation of this offence demonstrates a crucial turning point in criminal law for victims. Yet, for victim/defendants, the recognition of coercive control as an offence has had a limited impact, as it is not always recognized as a harm that reduces a victim's culpability in relation to their offending behavior.
Defences and Domestic Abuse
Partial Defences to Murder
The criminal law is concerned with the culpability of defendants, and only those who are sufficiently blameworthy should be labeled as criminal (Ashworth, 2006). Certain excuses or justifications are accepted as reducing criminal liability in the form of defences. If successful in this defence, the defendant is acquitted or convicted of a less serious offence. Most cases involving domestic abuse and criminal defences have involved women who have killed an abusive husband or partner after suffering long-term domestic abuse. As they stand trial for murder, their defence team argues a partial defence that reduces the charge from murder to manslaughter. Gradually, as societal understandings of domestic abuse have evolved, the role of long-term abuse by the deceased and its impact upon the victim/defendant's behavior has led to successful appeals.
The early legal case of R v Duffy [1949] 1 ER 932 resulted in a murder conviction for the offender, who killed her husband after years of physical abuse. The criminal law at that time allowed a partial defence to murder, where the offender was considered to have been provoked. However, Lord Justice Devlin had determined at the Court of Appeal that provocation could only be demonstrated where the offender had experienced a temporary and sudden loss of control. As a period of time had passed from the final act of provocation by the husband, Duffy's loss of control was not deemed a sudden one. Today, in contrast, the concept of coercive control introduces insight into the victim's experiences of entrapment as ongoing, with the threat of further harm ever present, and the potential of a reactive response happening at any point, not only after an overt incident of abuse.
The ruling in Duffy was challenged in the case of R v Ahluwalia [1992] 4 All ER 889, where the defendant set fire to her abusive husband once he had gone to sleep following his final abusive act towards her. The court of appeal ruled that a loss of control following the last act of provocation could be deemed sudden where there had been a passing of time. However, it was a question of fact left for the jury. Consequently, the longer the period of time that had passed, the less likely it would be that the jury would deem the loss of control a sudden one. This was a progressive decision that recognized to some extent the way in which domestic abuse exerted power upon the victim/defendant, explaining their reaction and providing them with a partial defence to murder. Nonetheless, the defence relied upon juries’ understandings of domestic abuse, and without experiencing it for themselves, decisions could be inconsistent. The partial defence of provocation has now been abolished and replaced with loss of control manslaughter under s. 54 Coroners and Justice Act 2009. It seeks to provide a defence to the victim/defendant who kills their abuser by applying in cases where the victim/defendant feared serious violence would be used against them. Commentators have argued that it remains a very narrow defence that is unlikely to be available in many cases of domestic abuse (Bettinson, 2019; Edwards, 2011).
The narrow application of the defence of provocation and its loss of control replacement for women who killed their abusers has meant that defence lawyers prefer to raise another partial defence to murder - manslaughter by reason of diminished responsibility. Legal scholarship has criticized the use of such a defence, arguing that it medicalises women's rational reactions to the abuse they experience (McColgan, 1993; Nicholson & Sanghvi, 1993). Notwithstanding this argument, I explored the scope for judicial interpretation of the law to align partial defences to murder with the offence under s. 76 Serious Crime Act 2015, and to some extent the Challen case achieved this (Bettinson, 2019).
At the appeal, it was argued that her trial defence lawyers were unversed in the concept of coercive control and did not apply it as evidence during her trial. Coercive control was allowed at her appeal, as it was treated as fresh evidence and was a relevant factor when considering how it affected her state of mind. The Court concluded that the coercive control could have contributed to her diminished responsibility, and ordered a retrial after quashing her conviction for murder (Storey, 2019). A jury would have determined whether the defence should have succeeded based on the presentation of the case at trial; however, this was avoided as the prosecution accepted a guilty plea from Challen for manslaughter. The impact of this decision is significant for other victim/defendants who kill their abusers, with the Criminal Cases Review Commission revisiting closed murder cases to determine whether coercive control was present yet unexplored at trial (The Guardian, 2021).
Marital Coercion
Historically, the coercion a husband could place upon a wife to commit a crime was captured by the defence of marital coercion (s. 47 Criminal Justice Act 1925). It was famously raised on appeal for perverting the course of justice by Vicky Pryce in 2013. Her husband was Mr. Chris Huhne, a serving MP at the time of the offence (Walker, 2013). She claimed that he coerced her into accepting responsibility for a speeding offence when in fact he had been driving. Ultimately, she was unsuccessful, and the case brought attention to the discriminatory nature of the defence, as it only applied to wives coerced by husbands and no other intimate relationship. The result was its abolition by section 177 Anti-Social Behaviour, Crime and Policing Act 2014.
Although limited in scope only to married women and therefore open to criticism on the grounds of discrimination, the defence understood the power of males over their female partners and conceded that, as such, married women were not responsible for their criminal actions where there was evidence that they had been coerced to act by their husbands. The meaning of coercion was expansive with no need to show evidence of physical force or threats. The defence would fail if the wife had acted out of loyalty to her husband, which was not deemed to be coercive (R v Shortland [1996] 1 Cr. App. R. 116). While it is understandable that such an offence would be deemed outmoded and unfair, excluding men coerced by their female partners, the essence of the defence has some merit. A more progressive approach than abolition would have been to expand and re-operationalize it where there was evidence of coercive or controlling forms of domestic abuse.
Whether the existence of such a defence could help women avoid imprisonment would depend on how confident women would be in the criminal justice response towards them. Evidence suggests that all female victims of domestic abuse are reticent about involving the criminal justice system in their abusive relationships (Cretney & Davies, 1997; Robinson, 2008). For female offenders with children, as detailed above, disclosing domestic abuse creates fear that their children may be taken into care. Typically, they may be financially dependent upon the abuser and rely on the relationship for accommodation (Baldwin, 2015; Vickers & Wilcox, 2011).
Duress
A general defence available to defendants for most offences is duress, either by threats or due to circumstances. It has been created by common law to accommodate people who commit crime in understandably pressurized circumstances. However, while it is treated as ‘a concession to human frailty,’ it has a very narrow application (Keating et al., 2014, p. 361). On the face of it, the defence has the potential to apply to victim/defendants of domestic abuse, affording them an acquittal from charges and diverting them from the prison population. Should the defence be an option for female offenders, it could encourage disclosure of the abuse to criminal justice agencies which can direct them to domestic abuse partner agencies where appropriate support can be provided. This could help to reduce reoffending by targeting the source of the criminality.
As a defence, it has its dissenters who believe it should not be available to any defendant because, in their view, it weakens the deterrent effect of the law. They believe that the defendant remains morally blameworthy for their criminal actions, although they accept that the duress the defendant was under does reduce their blameworthiness. For them, the duress should be treated as a mitigating factor at the sentencing stage (Keating et al., 2014, p. 358).These arguments support judicial rulings preventing the application of a duress defence to cases of murder and attempted murder. This extends to family violence cases highlighted by the leading judgment R v Gotts [1992] 2 AC 412. Gotts was a 16 year old whose father had threatened to shoot him if he did not kill his mother. In response, he was compelled to seriously injure his mother with a knife and could not rely on the duress defence to a charge of attempted murder.
Firstly, the court emphasized the importance of the law's role to protect the sanctity of human life. Secondly, the court was concerned that by allowing the defence for a sympathetic defendant, it would allow a lesser deserving defendant such as a terrorist to use it. For advocates arguing for a defence for the coerced, such an approach denies deserving victim/defendants the recognition of their experiences and their understandable responses to them. They should be viewed as less morally blameworthy than defendants who are terrorists or serious organized criminals.
For a victim/defendant to rely on duress, they must prove that they reasonably believed they had been threatened with imminent death or serious injury (R v N [2007] EWCA Crim 3479). Once the court is satisfied that this is the case, the defendant must demonstrate that they exercised reasonable steadfastness in response to the threat. To determine whether this was the case, the court will take into account some of the defendant's characteristics - age, sex, pregnancy, serious physical disability, recognized medical illness, or psychiatric condition, such as post-traumatic stress disorder (PTSD) leading to learned helplessness (R v Bowen [1996] 2 Cr App R 157).
Many victim/defendants suffering from coercive and controlling behaviors by their intimate partners will be fearful of physical or sexual harm; others may be fearful of a psychological injury that undermines their autonomy (Stark, 2007). Consequently, the latter are unable to rely on duress as there is no threat of physical injury. Even for the former, the availability of the defence is unlikely. In R v Coats [2013] EWCA Crim 1472, the defendant appealed against her conviction for the importation of drugs, relying on domestic violence to support a duress defence. Her partner at the time of the crime had a history of domestic violence against her, and previous partners, and a criminal record of violent crimes. At the time of her trial, she did not reveal the nature of the abuse she had experienced, which is not uncommon for reasons explained above. Her appeal was the result of a referral from the Criminal Cases Review Commission after Coats’ ex-partner was convicted of a drug-related murder. A successful appeal would have had little impact on Coat's own incarceration as her date for release was imminent. However, a successful appeal would have consequences for other female offenders whose crimes were driven by domestic abuse, by setting a precedent allowing duress to be used by them in future.
The appeal was rejected, and the court's reasoning suggests some inherent misunderstandings about the effect abuse has on its victims, as it was decided without a consideration of coercive control. For the court, the actions of Coats made her less credible; for example, they expected victims of domestic abuse to be passive, whereas Coats described herself as feisty. They disbelieved her account that she was unable to take any evasive action rather than commit the offence, as she had previously contacted the police on several occasions in respect of her partner's abusive behavior. This indicated to the court that she was capable of seeking help and was not so fearful of him that her will was conquered. The court acknowledged that the threat of serious harm could be on-going and ever-present for victim/defendants of domestic abuse. Still, it focused on whether there was evidence of physical violence to support the possibility that Coat's was suffering from Battered Woman Syndrome. Only this would indicate to the court that she held a reasonable belief in a threat of serious injury at the time she committed her offence.
The court also rejected the view that others in Coat's circumstances suffering from PTSD leading to learned helplessness would have also committed the offence. They concluded that while Battered Woman Syndrome was a type of PTSD, in domestic abuse cases it would have to be ‘in a severe form to be in a position to claim their will was overborne’ (para. 51). Loveless’ analysis criticizes this approach noting that it medicalises or is “syndromising” abused women, ‘pathologizing her as a victim of violence rather than seeing her as a rational survivor’ (Loveless, 2014, p. 664). Not every abused person will experience learned helplessness exhibited by passivity. Loveless’ view is that the duress defence should involve ‘looking for domination of the [victim/] defendant's will by genuine and reasonable fear, borne of threat… of serious violence [by their abuser] at the time of the offence, not for complete domination of one person by another’ (665). Instead, the court has created a test which carries a higher threshold for victims of domestic violence compared to other contexts.
Common law is flexible and courts could revisit the Coat's decision. This could assist in diverting female offenders’ experiencing domestic abuse from prisons. However, a wider approach is looking unlikely in light of other case examples. For instance, duress was examined once again in Y v DPP [2017] EWHC 2839 (Admin), where the defendant was convicted of a number of road traffic offences. She claimed that she had committed the offences having been dragged into the car and ordered to drive by her abusive, intoxicated partner (para. 6). There was a history of abuse in the relationship and while she was driving the car unlawfully, she stated that he had threatened to kill her if she did not continue to drive, screaming at her throughout the whole incident, and punching her in the ribs. The court accepted that she reasonably believed that failing to comply with his demands would end in their deaths because of the threats used and the actual violence at the time of the offence (para. 26). Yet, the defence was not met, as in the court's opinion, a reasonable person with the victim/defendant's history of domestic abuse, age, and situation would not have acted as she did. This reveals that coercive control and its impact on victims of domestic abuse is not understood when it serves as the driver for an abused person's offending. It is an example of the double standards Baroness Kennedy refers to, where compassion dissipates when the abused person enters the dock (HL Hansard, col, 2291).
S. 45 Modern Slavery Act 2015 Defence
Concessions in the form a criminal defence have been made by the UK Parliament for some categories of vulnerable defendants under s. 45 Modern Slavery Act 2015 (MSA 2015). Denying victim/defendants of domestic abuse the same concessions is questionable given the stated, yet undelivered, government priority of diverting female offenders from our prisons (HM Government, 2018). The impetus for introducing a defence for victims of modern slavery and human trafficking came from international pressure. A modern slavery victim can be trafficked, whether by force, deception, or an abuse of power, for the purposes of exploitation. Exploitation can include sexual exploitation, forced labor or services, slavery or practices similar to slavery, or the removal of organs (Council of Europe, 2005). Under the Council of Europe Convention on Action against Trafficking in Human Beings Article 26, State parties are required not to impose penalties on victims for crimes they have been compelled to commit. The s. 45 MSA 2015 defence is England and Wales’ response to that obligation.
Before the defence was introduced, the Crown Prosecution Service exercised discretion when making decisions whether or not to prosecute such victim/defendants, as Article 26 did not provide blanket immunity from prosecution (N [2012] EWCA Crim 189). S. 45 MSA 2015 is modeled on the duress defence and is limited in its application (Laird, 2016). About 100 offences are excluded from its ambit, which are listed in Schedule 4 of the MSA 2015. While the argument for excluding offences was to prevent its use in relation to sexual and violent offences, in fact the exclusion goes much further including, for example, blackmail, assisting unlawful immigration, perverting the course of justice, possession of a firearm, theft, unlawful damage, and harassment offences. The extent of the exclusions is significant and undermines the effectiveness of the defence (Laird, 2016, p. 396).
Edwards points out that ‘It can hardly be the case that the coerced victim/defendant has any control over the particular offence s/he is compelled to commit, or can be expected to develop a more robust resistance or greater fortitude when being compelled to commit one of the crimes excluded in Schedule 4′ (Edwards, 2016, p. 899). Arguably, the impact of the exclusion list is mitigated to some extent by prosecutorial discretion that takes into account Article 26. Nonetheless, the premise that the s. 45 defence would provide consistent decisions is clearly undermined by this approach and victims of slavery and trafficking ‘may be no better off’ (Laird, 2016, p. 397). The basis for such a long list of excluded offences reflects the same judicial concerns raised in court decisions on the duress defence. The Government does not want terrorists or serious criminals escaping criminal liability and this factor influenced the drafting of the s. 45 defence.
This defence is broader than the duress defence, as the threat compelling the defendant to act need not be based on threats of death or serious harm - although, it can only be used by victims of slavery or trafficking. As with duress, the defendant is required to exercise reasonable fortitude in the circumstances in which they find themselves. For Laird, this is the second significant limitation of the s. 45 defence, expecting victims to show the same level of fortitude as ‘normal people’ despite their extreme circumstances (399). He argues correctly that jurors would find this test difficult to apply ‘having never been victims of slavery’ (399). This problem also applies to the issue of whether the defendant has a realistic alternative to committing the offence; ‘What might seem realistic to a person of ordinary fortitude might seem fanciful to someone who has never been trafficked into the country and is suffering from ‘learned helplessness’ (401). The narrowness of the defence's application therefore, ‘undermine[s] the rationale for enacting the defence in the first place’ (402).
Despite the problems raised in the drafting of s. 45 MSA 2015, campaigners have modeled a proposed defence for victims of domestic abuse based on the s. 45 approach. If enacted in the future, victim/defendants of domestic abuse could avoid prison and receive access to support services within the community, preventing them from losing their accommodation, children, and facing financial hardship.
Prison Reform Trust's Proposal
The Prison Reform Trust provided written evidence to Parliament about the proposed provisions in the Domestic Abuse Bill and included a draft defence for survivors of domestic abuse who commit an offence, along similar lines to s. 45 MSA 2015. The proposal came from discussions with their stakeholders, including academics, lawyers, and campaigners for women's rights. Had the Government accepted it, the defence would have entered into legislation and been made available to victim/defendants of domestic abuse. It was not to be.
The government was not persuaded that the defence was needed, arguing that the current legal framework was satisfactory and sufficiently flexible to apply in appropriate cases (Hansard, 2021: 2285). There was concern that the definition of domestic abuse was too wide for the purpose of a defence and the government did not want it to apply where there had been ‘any level of abuse’ (2287). This is a flawed position, as domestic abuse in its non-physical form does meet a criminal standard of behavior under s. 76 Serious Crime Act 2015. For the proposed defence to succeed, the defendant would have to show that their crime was the consequence of being a victim of domestic abuse compelled to do it and a reasonable person in the same situation as the defendant might have acted in the same way. As Laird points out in relation to s. 45 MSA 2015, jurors who have not experienced coercive and controlling behaviors in their intimate relationships may not appreciate what levels of fortitude a person in such circumstances would have, or indeed understand the barriers an abused person faces in seeking evasive action.
There will be other opportunities to seek legal reform of defences, and the Prison Reform Trust's proposal to the Domestic Abuse Bill process has prepared the way for further debate on this issue. Further research is needed to refine the proposal and to convince government that diverting domestic abuse victim/defendants from the criminal justice system will result in better protection for them and better justice outcomes overall, as well as having the effect of reducing the female prison population.
Conclusion
Incarcerated female offenders struggle with complex problems, with domestic violence and its associated trauma a common vulnerability that acts as an additional barrier to rehabilitation, even where support is provided. Just as the law has recognized that victims of slavery and trafficking need encouragement to discuss their exploitation in order to address these heinous practices, victim/defendants of domestic abuse should be encouraged to do the same. Defences can be used to for this purpose as s. 45 MSA 2015 suggests.
Legal developments through case law have been slow to encompass a complete understanding of domestic abuse that includes coercive and controlling behavior. While there has been some progress for women who kill their abusers following the case of Sally Challen, abused women who commit less serious crimes are afforded no reduction in criminal liability where they are coerced to act by their abuser. This is to say, they are convicted for the same crime as a defendant who is not coerced through domestic abuse, albeit that it is considered relevant for sentencing purposes.
For advocates of reform, this is a time for reflection and further development of theoretical perspectives to assist with the process of aligning criminal law offences to defences, reflecting the reduced blameworthiness in the same way afforded to victims of slavery and human trafficking. With careful reflection, it may be possible to avoid some of the pitfalls that are contained in the MSA defence as outlined by Laird, and ensure that where appropriate female offending driven by domestic abuse does not lead to incarceration.
Footnotes
Notes
Author Biography
). She has written extensively for international journals on the issue of coercive control and the criminal law.