In our discussion of domestic violence cases, we have forgotten the other kind of victim

There was an important debate in Parliament on Tuesday. The government was put on the spot about the scandalous cross-examination of victims of rape by the perpetrators of such abuse. It is a shame that the video footage of the house shows so many MPs making a break for the cafe just as it started.

It is good that this issue is now being tackled at last, but I have to say that the framing and depth of the debate leaves something to be desired. And it does not give me great confidence that the solution will necessarily resolve the real issue.

Poor grasp of definitions

There is some real flabbiness of definition here : There is (still) no delineation between complainant and victim, accused and perpetrator, alleged abuser/rapist and actual abuser/rapist. This should not be too hard to grasp. The presumption of innocence should not be a novel concept for our elected representatives to grasp.

Many, maybe most, of the (mainly) men accused of domestic abuse are responsible for some level of bad behaviour. Some will be guilty as charged by their ex. In other cases there is a much exaggerated grain of truth at the heart of a schedule of allegations. And some, we cannot say how many, will be innocent.

But in this really important debate about how we do justice in the family courts, this debate that has had the attention of Parliament as it rightly should – we have forgotten those victims of false or grossly exaggerated charges made wilfully or through confabulation. Maybe it’s easier to see things from only one perspective, but this isn’t about what’s easier. How can we talk about justice if we can only talk about justice for one party?

Cross-examination doesn’t work for anyone

And so, the debate trundles on about why we ALLOW men to cross examine their VICTIMS. We shouldn’t allow such cross examination because we have to protect those complainants who ARE victims.

But the corollary is: nor should we COMPEL victims of false allegations into having to cobble together their own cross examination, having to face a person determined to see them destroyed, having to do so without the legal aid that their accuser is entitled to. Because some of those “perpetrators” will be just that – victims who are struggling to fight off unjust allegations in order to preserve or establish a relationship with their child.

Some of them will be nasty, nasty pieces of work who (we will all agree with the benefit of hindsight after a thorough trial) did not deserve representation. But we will at least know that when the trial is over the decision is both fair and robust. And as good an approximation to “truth” as we can achieve.

I think we need to have this conversation – about the men who might not be abusers – before we rush headlong into solving this problem with the sticking plaster of appointing counsel to cross examine but not to conduct a trial or to advise an accused parent.

Not just for the sake of the innocent accused, but also for the sake of the genuine complainant. Because a family court is not like a criminal court. And a family case is not like a criminal case. Yes, it offers a whole arena in and through which a controlling man may continue to attempt to exert control. And yes, our haphazard system may inadvertently facilitate that in some cases. But there are other distinctions too.

Firstly, in the family court the parties are just that – parties. The complainant is more than just a witness. They are a participant in the entire trial process. And as such the need for protection goes far broader than mere cross examination. The flip side is that the need for an accused to be protected against accusations that he has attempted to manipulate the trial process to exert continuing control over his victim runs throughout the litigation/trial process. An accused litigant in person can be very vulnerable indeed.

And secondly, that the parties do (usually) have a child together. This means that, however uncomfortable it may be, in all but the most exceptional of cases there will have to remain some connection between the parties for a long time – even if it is entirely indirectly through third parties.

And thirdly, because the family court can make very draconian orders – it can suspend or even terminate a relationship between child and parent – based only on evidence to the civil standard of proof. In brutal terms it is far easier for a person accused in the family court of some awful crime to be found to have perpetrated that act than in a criminal court. Again, the accused is vulnerable. And the consequences are different, but are potentially every bit as grave and lifelong as in the criminal court.

The difference between rape and domestic violence cases

Finally, it is worth reflecting on the illuminating heading of the debate in Hansard : Domestic Violence Victims: Cross-Examination. It is broadly drawn. It is not just about rape victims any more. When ministers are reconsidering this issue and formulating proposals they need to take some real care to distinguish between the position in rape cases (specifically provided for in criminal courts) and the position in the spectrum of other cases of domestic abuse (again there are provisions in criminal courts but they only apply where the court considers that the quality of witness evidence is likely to be diminished by direct questioning).

Any proposals need to distinguish between cross examination and broader participation in the trial process. They need to distinguish between: cross examination about alleged abuse (to prove or disprove it), cross examination about other matters in a case which involves (or has involved) allegations of abuse, and cross examination in a case which is nothing to do with domestic abuse but where, incidentally there is a background of domestic abuse between the parties or between a party and a witness (for example financial or civil matters between ex -partners). The answers called for in each scenario might be rather different. I’m not sure the debate so far has teased any of that out.

Parliament has a blind spot towards the accused

It is really encouraging to see Parliament taking an interest in these important issues. But it is profoundly depressing to see the massive blind spot that our Parliamentarians seem to have to one whole side of the discussion – and one whole half of their constituents: the accused, who we insist on calling perpetrators as if we have entirely forgotten about the purpose of the trial in the first place – to establish guilt. Not once in the debate did anyone use the proper terms complainant and accused. Not once did anyone avert to the possibility that an allegation might not be true. It is this one eyed perspective on family courts that got us into this post-LASPO mess in the first place.

And it is profoundly depressing to see it now enter into the Hansard records as fact that “a quarter of domestic violence victims face cross-examination by their abusers.” And not just because of the use of those terms victim and abusers :

Women’s Aid have done valuable work on this topic, and it is largely thanks to their massive campaign that people seem to be sitting up and listening. They deserve credit for it, although I do not always agree with their methods or adopt unquestioningly all of their bold assertions.

But the 25 per cent statistic used by  MP Oliver Heald in the debate does not come from court statistics, not from any proper research, and it is unverified. It comes from a Women’s Aid survey of their own service users, which they have yet to answer questions about (see my previous writing about that here). The danger in such concerning but basically anecdotal and subjective evidence is that it may not be reliable or may become distorted by the process of stripping out important context.

A striking example of this is the account given by an MP in the course of debate today that a “convicted murderer…sued for custody of their child from the prison where he was serving a life sentence for murder”. It seems highly unlikely that a person serving a life sentence for murder would be pursuing an application for a child to live with him. Instead it is far more likely that he was asking questions in the context of pursuing contact or was responding to an application made by extended family wishing to care for the child in light of the mother’s murder.

Although it will have undoubtedly been very difficult for the witness, whose sister had been murdered by her questioner, it is of course not an example of a perpetrator cross-examining his victim at all. We don’t know the details, and it must be right to expect the court dealing with such an application to control the court process very carefully – but it is difficult to draw conclusions from such snippets. For me this is a powerful illustration of the danger of anecdote.

That the minister for courts and justice Oliver Heald is happy to simply adopt the Women’s Aid guesstimate as fact is an indication of the real depth of consideration here. The minister needs to ensure that the government’s response is to the problem, not to the publicity campaign.

It all makes me concerned that we will be presented with a quick fix that in fact fixes very little. Let us suppose that a quarter of all victims of domestic abuse are cross examined by their perp (this would be a significant number as it is not limited to rape or serious physical abuse – and thus if we want to ban ALL of it a significant fix would be required).

It would be unsurprising if a quarter of all those accused of domestic abuse would also express concern at their vulnerability in having to try and defend themselves against false allegations without help, and against a state funded lawyer if asked to complete a survey on the topic. Who is to say which is the greater injustice when we have no proper research on either proposition, and when our system depends upon us holding in mind the possibility of two alternate versions of reality until after the evidence has been heard?

In saying all of this I don’t minimise the legitimate concerns raised by campaigners and MPs about what is going wrong. But it isn’t the whole story and it isn’t the whole problem. And a mere ban on cross examination by men who – in the main – aren’t terribly keen on enforced DIY cross examination in the first place is not the whole fix either.