Legal Article: ‘Domestic abuse’ – the new statutory definition

30 September 2021

Written by: Helen Hanley, PNLD Legal Adviser
Not reviewed after the date of publication

A key feature of the Domestic Abuse Act 2021 is that it provides a new cross-government statutory definition of ‘domestic abuse’ (section 1) and details the types of connections between perpetrator and victim (section 2). ‘Domestic abuse’ covers a lot of different types of behaviour, which can differ in nature, dynamics, and impact.  Recognising behaviour as ‘domestic abuse’ with reference to this new statutory definition, will be crucial to ensuring that the appropriate help can be given to the victim and that necessary action is taken against the perpetrator to prevent them from going on to carry out further abuse. 

In this article, PNLD Legal Adviser Helen Hanley aims to provide some examples of the types of behaviour that will constitute ‘domestic abuse’ under the 2021 Act; describe the types of connection between perpetrator and victim that will be deemed to be ‘personally connected’; and highlight a suggested police response to such incidents.

There isn’t at present, nor will there be, a specific offence of ‘domestic abuse’, but most incidents of ‘domestic abuse’ do and will constitute an offence. 

Statutory definition of ‘domestic abuse’

The definition of ‘domestic abuse’ in section 1(2) of the Domestic Abuse Act 2021 is as follows:

‘1(2) Behaviour of a person (‘A’) towards another person (‘B’) is ‘domestic abuse’ if -

(a) A and B are each aged 16 or over and are personally connected to each other, and
(b) the behaviour is abusive.’

Section 1(3) details the types of behaviour deemed to be ‘abusive’, which is behaviour that consists of physical or sexual abuse; violent or threatening behaviour; controlling or coercive behaviour; economic abuse; or psychological, emotional or other abuse. These encompass a wide range of different behaviours.  Common to all, however, is the perpetrator’s desire to exercise power and control over the victim. Note also that children and young people, as a result of seeing, hearing or otherwise experiencing domestic abuse between two people, where the child is related to at least one of them (whether that be the victim or the perpetrator (section 3)), will be deemed victims under the Act. 

Physical abuse and violence

Physical abuse and violent or threatening behaviour can involve, but is not limited to, kicking, punching, pushing, dragging and shoving; using or threatening to use weapons or other articles to hurt the victim, such as irons, knives and ornaments; throwing objects; using or threatening violence against pets; denying access to medical aids, such as hearing aids or glasses; and harming someone whilst caring for them, for example, force feeding or withdrawing medicine. Abusive and violent offences that are associated with domestic abuse include (but are not limited to) section 39 of the Criminal Justice Act 1988 (common assault and battery, section 18 (wounding with intent to do GBH) and section 47 (assault occasioning bodily harm) of the Offences Against the Person Act 1861 and section 3 of the Public Order Act 1986 (affray - note this can take place inside a dwelling). Further information and examples regarding this can be found on the College of Policing website.

Section 70 of the Domestic Abuse Act 2021 (not yet in force at time of writing) creates a new offence of ‘non-fatal strangulation or suffocation of another person’ and will insert new sections 75A and 75B into the Serious Crime Act 2015.  75A(1) sets out that a person commits an offence if he / she ‘intentionally strangles’ another person (new section 75A(1)(a)) or commits another act that affects the other person’s ability to breathe and that act constitutes a battery of the other person (new section 75A(1)(b)).  ‘Strangulation’ or ‘strangles’ are not specifically defined and have their ordinary meaning.  Battery in this section is a reference to the common law offence of battery. An act that affects the ability of the other person to breathe and constitutes a battery can include, but is not limited to, suffocation.

Sexual abuse

Sexual abuse includes rape; being pressured into sex; being forced to take part in sexual acts because of threats to others; unwanted sexual contact or demand; intentional exposure to HIV or sexually transmitted infections; being pressured or tricked into having unsafe sex; forced involvement in making or watching pornography; and hurting a victim during sex. Sexual offences that are associated with domestic abuse include (but are not limited to) section 1 (rape), section 2 (assault by penetration) and section 3 (sexual assault) of the Sexual Offences Act 2003 and section 33 of the Criminal Justice and Courts Act 2015 (disclosing private sexual photographs or films, which now also includes threats to disclose a private sexual photograph or film, as of the 29th June 2021). 

Controlling or coercive behaviour

Controlling or coercive behaviour is common in domestic abuse and can coincide with many of the other behaviours.  It can include controlling or monitoring the victim’s daily activities; isolating them from family and friends; refusing to interpret or hindering access to communication; intentionally undermining the victim; using substances to control the victim; using children to control the victim, for example threatening to take children away; threats of institutionalisation; emotional and psychological abuse; spiritual abuse (using religion and faith systems to control and subjugate a victim); economic abuse; and verbal abuse. 

Using technology and social media as a means of controlling or coercing victims can also be deemed ‘controlling or coercive behaviour’.  This is particularly so amongst younger people, for example online abuse, such as hacking, trolling, setting up false social media accounts, using hidden cameras and using spyware. 

Section 76 of the Serious Crime Act 2015 creates an offence in relation to a person who repeatedly or continuously engages in behaviour that is controlling or coercive, towards another person, who is personally connected to them. Currently there is a requirement in this offence, in the definition of ‘personally connected’, that the person who carries out the controlling or coercive behaviour lives with the victim.  However, section 68 of the Domestic Abuse Act 2021 (not yet in force at time of writing) will amend the definition of ‘personally connected’ in section 76 of the Serious Crime Act 2015, to align it with that of section 2 of the Domestic Abuse Act 2021 (see below).  The requirement for persons to live together will be removed. The offence will then also apply to abuse where the persons involved are not living together, for example coercive behaviour by a former intimate partner, that takes place post separation, or by a family member who does not live with the victim.  This will be a significant change.

Statutory guidance has been issued under section 77 of the Serious Crime Act 2015 in relation to controlling or coercive behaviour – ‘Controlling or Coercive Behaviour in an Intimate or Family Relationship’.  It is likely that this guidance will be updated once section 68 of the Domestic Abuse Act 2021 comes in force.

Economic abuse

Economic abuse is included in the definition of ‘domestic abuse’ in subsection 1(3)(d) of the Act.  Subsection (4) defines economic abuse as any behaviour that has a substantial effect on an individual’s ability to acquire, use or maintain money or other property, or to obtain goods or services.  This can include an individual’s ability to acquire food, clothes, transportation, and utilities.  Examples of economic abuse, where it has had a substantial adverse effect on the victim, are denying the victim food or only allowing them to eat a particular type of food; running up bills and debts in the victim’s name, interfering with a victim’s education; not allowing a victim access to mobile phones, cars or utilities; and damaging property. Offences relating to economic abuse, that are associated with domestic abuse, include (but are not limited to) section 1 of the Criminal Damage Act 1971 (destroying or damaging property) and sections 2 (fraud by false representation) and 4 (fraud by abuse of position) of the Fraud Act 2006

Psychological, emotional or other abuse

Psychological, emotional or other abuse can include withholding affection; manipulating a person’s anxieties or beliefs; being stopped from seeing friends or relatives; being insulted; being repeatedly belittled; ‘honour-based’ abuse; verbal abuse such as repeated yelling, verbal humiliation in private or company, insults and threats, or mocking someone about their disability, gender identity etc.; and spiritual abuse (using religion and faith systems to control and subjugate a victim), for example causing harm, isolation or neglect to get rid of an ‘evil force’, or manipulation and exploitation through the influence of religion.  Offences relating to psychological and emotional abuse, that are associated with domestic abuse, include (but are not limited to) section 2 (offence of harassment), 2A (offence of stalking), 4 (putting people in fear of violence) and 4A (stalking involving fear of violence, serious alarm or distress) of the Protection from Harassment Act 1997 and section 127 of the Communications Act 2003 (improper use of a public electronic communications network).

‘Personally connected to each other’
 The definition of ‘personally connected’ is set out in section 2(1) of the Domestic Abuse Act 2021 as follows:

‘2(1) For the purposes of this Act, two people are personally connected to each other if any of the following applies -

(a) they are, or have been, married to each other;
(b) they are, or have been, civil partners of each other;
(c) they have agreed to marry one another (whether or not the agreement has been terminated);
(d) they have entered into a civil partnership agreement (whether or not the agreement has been terminated);
(e) they are, or have been, in an intimate personal relationship with each other;
(f) they each have, or there has been a time when they each have had, a parental relationship in relation to the same child (see subsection (2));
(g) they are relatives (see note (ii) below)

2(2) For the purposes of subsection (1)(f) a person has a parental relationship in relation to a child if –

(a) the person is a parent of the child, or
(b) the person has parental responsibility for the child.’

This definition sets out the different types of relationship that would qualify the abuser and the abused as being ‘personally connected’ in a case of domestic abuse.  It will no longer be the case that the persons connected must be living together for ‘domestic abuse’ to have occurred.  The new definition will include persons who do not live together at the time of the abuse and will capture the following types of relationships.  This could increase the number of cases that are deemed ‘domestic abuse’.

Teenage relationship abuse
This is not a term that is used within the 2021 Act, but if the victim and perpetrator are at least 16 years old, abuse in their relationship will come under the statutory definition of ‘domestic abuse’.  If a young person is under 16 years old, the definition of domestic abuse under the 2021 Act will not apply to them and this abuse would be considered child abuse.  Perpetrators of domestic abuse who are under 16 would be dealt with age appropriately.  When dealing with teenage relationship abuse, it is likely that an integrated response combining child safeguarding and domestic abuse expertise will be needed.

This type of abuse can include a wide range of incidents or patterns of incidents of controlling or coercive behaviour, and violence or abuse between teenagers who are, or have been, in an intimate relationship. This abuse can encompass, but is not limited to, psychological, physical, sexual, economic and emotional abuse. For teenagers, abuse often occurs through technology. For instance, technology, including social media, or location-based tracking apps such as Find My Friends, may be used to harass and control victims.

Family member abuse
Abuse by family members can involve abuse by any relative or multiple relatives, for example, abuse of an elderly mother by her daughter, brother by brother, stepson by step father, daughter by mother and father and also extended family.  A wide range of family members will be ‘relatives’ and as already mentioned, there will be no requirement for the victim and perpetrator to live together within the 2021 Act.  This will also include abuse by former partners, but it is of note that inter-familial abuse patterns may differ from those of intimate partner violence.

Abuse of parent by child (child-to parent abuse)
Child-to parent abuse can involve children of all ages.  It does not exclusively involve violence.  This type of abuse will be considered ‘domestic abuse’ in accordance with the statutory definition within the 2021 Act.  It is often gendered, with most cases being perpetrated by sons against their mothers, though men and boys can be victims too. A young person will need to receive a safeguarding response.  A parent victim will need an appropriate domestic abuse response and support.

Responding to incidents of domestic abuse
Tackling domestic abuse as defined under the new statutory definition will require:

multi-agency recognition of such behaviour, for example childcare, schools, higher education, children’s social care, adult social care, health professionals, housing and the police, and multi-agency support to victims. This will be crucial to responding, supporting, and preventing further abuse of victims of domestic abuse.

that agencies such as the police, local authorities, health and social care services etc. work together to provide support to victims.

For current guidance on the principles and standards for police officers investigating domestic abuse, please see the College of Policing APP guidance

Conclusion
There are over 100 million calls to the police in England and Wales about domestic abuse each year.  However, still not all incidents are reported.  This can be due to the victim’s lack of knowledge, or fear.  In our opinion, giving clarity and consistency to ‘domestic abuse’ by giving it a statutory definition will inevitably assist in the recognition of abuse and will be of benefit.  However, also of interest, will be the impact the new statutory definition has on the number of cases recorded as ‘domestic abuse’. 

For further information regarding this Act and its implementation, please see:

https://www.legislation.gov.uk/ukpga/2021/17/contents/enacted for the full provisions of the Act;

the Domestic Abuse Act 2021 Commencement Schedule.

the Domestic Abuse Act 2021 on PNLD, for details of the provisions that are currently in force.

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