THE SIGNIFICANCE OF COMPELLABILITY IN THE PROSECUTION OF DOMESTIC ASSAULT

Abstract

With the declaration of the competence and compellability of a spouse to give evidence against a violent partner it was hoped that a significant barrier to the effective prosecution of domestic' assault had been removed. Examination of the theoretical arguments for and against compulsion suggests that these are finely balanced. Empirical investigation reveals that, partly for pragmatic and partly for humani tarian reasons, the compellability provision is not enforced. This means that assailants still deem their victims responsiblefor the continuance or otherwise of a criminal prosecution against them, while from the point of view of the prosecuting authorities the woman's withdrawal of co-operation continues to lay her open to criticism. Itfollows that prosecutions for 'domestic' assault are still characterized by a sense of frustration and failure on all sides. Section 80(3) (a) of the Police and Criminal Evidence Act 1984 made a wife a compe tent and compellable witness against her spouse where 'the offence charged involves an assault on, or injury or a threat of injury to, the wife ... of the accused'.1 A wife who refuses to give evidence may be punished for contempt (Brownlee 1990).2 It follows that there is no longer any distinction between married and unmarried partners in domestic violence cases. Any woman may be compelled to give evidence against a husband, partner or ex-partner accused of assault upon her. Prior to PACE it had been accepted that a married woman should not be instrumental in the conviction of her husband, even where she had been the victim of his violence. The principle of non intervention in family matters (Moody and Tombs 1982; Wasoff 1982; Edwards 1989?>) had been sufficiently accepted for it to have been deemed inappropriate for the criminal law to be brought to bear on 'everyday violence' by a husband against his wife. Such delicacy, if that is what it was, was reinforced by a belief that it was wrong for the criminal law to promote the breakdown of a marriage. With the declaration of the competence and compellability of spouses the 'sacred realm' disappeared—and with it the paramount importance of maintaining marriage even in the face of violence. It was observed that the new statute 'represents a balance