Supreme Court of the United Kingdom Apparently Holds That Shouting, Frequent “Denigration of … Personality,” and Denial of “Money for Housekeeping” May Qualify as “Domestic Violence”

The case, Yemshaw v. London Borough of Hounslow (decided yesterday) arose in a particular statutory context: Under English law, people are entitled to housing offered to the homeless even when they have a home to return to, when “it would [not] be reasonable for [them] to continue to occupy” the home, and in particular when “it is probable that [staying at the old home] will lead to domestic violence against” them (defined to include “violence … or threats of violence”). The question whether shouting and the like constituted “domestic violence” arose in deciding whether a woman who was seeking housing fit within the statutory definition.

But the question wasn’t simply whether, as a policy matter, housing for the homeless should be offered to people who are fleeing a home where they are subjected to frequent hostile shouting, “denigration of … personality,” and denial of money for housekeeping — rather, it was whether the term “violence” in the statute should be interpreted to include such behavior. And now that it has been, it seems pretty likely that it will be so interpreted in other contexts as well, at least in England.

Some excerpts, first, from the court’s own summary:

“[D]omestic violence” in s. 177(1) of the 1996 Act includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm….

Lord Rodger [one of the judges in the majority — each judge may give his or her own opinion -EV] could see no reason why Parliament would have intended the position to be any different where someone will be subjected to deliberate conduct, or threats of deliberate conduct, that may cause her psychological, as opposed to physical, harm. To conclude otherwise would be to play down the serious nature of psychological harm.

And from the opinion itself:

The issue in this case is what is meant by the word “violence” in section 177(1) of the Housing Act 1996. Is it limited to physical contact or does it include other forms of violent conduct?

16. The appellant is a married woman with two young children, a girl who is now aged eight and a boy who is now aged two. They were aged respectively six and eight months in August 2008 when she left the matrimonial home in which she lived with her husband, taking the children with her, and (having nowhere else to go) sought the help of the local housing authority. The matrimonial home was rented in her husband’s sole name. In her two interviews with the housing officers, she complained that “her husband hates her and [she] suspects that he is seeing another woman. [She] is scared that if she confronts him he may hit her. [However her] husband has never actually threatened to hit her.” She went on to complain of his shouting in front of the children, so that she retreated to her bedroom with them, not treating her “like a human”, not giving her any money for housekeeping, being scared that he would take the children away from her and say that she was not able to cope with them, and that he would hit her if she returned home. The officers decided that she was not homeless as her husband had never actually hit her or threatened to do so.

19. In [an early case, which the opinion rejects,-EV] the first, and principal, reason given was that “physical violence” is the natural meaning of the word “violence”: para 15. I can readily accept that this is a natural meaning of the word. It is, for example, the first of the meanings given in the Shorter Oxford English Dictionary. But I do not accept that it is the only natural meaning of the word. It is common place to speak of the violence of a person’s language or of a person’s feelings. Thus the revised 3rd Edition, published in 1973, also included “vehemence of personal feeling or action; great, excessive, or extreme ardour or fervour; … passion, fury”; and the 4th (1993), 5th (2002) and 6th (2006) Editions all include “strength or intensity of emotion; fervour, passion”. When used as an adjective it can refer to a range of behaviours falling short of physical contact with the person: see, for example, section 8 of the Public Order Act 1986. The question is what it means in the 1996 Act.

20. The 1996 Act was originally concerned only with “domestic violence”, that is violence between people who are or were connected with one another in an intimate or familial way. By that date, it is clear that both international and national governmental understanding of the term had developed beyond physical contact. The Court is grateful to the diligence of both interveners, the Secretary of State for Communities and Local Government and the Women’s Aid Federation of England, for gathering so many of the references together. Internationally, in 1992 the United Nations Committee, which monitors the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), adopted General Recommendation 19, which included in its definition of discrimination in relation to gender based violence “acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty”. In 1993, the General Assembly adopted the Declaration on the Elimination of Violence against Women, defined for this purpose as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women …”

21. Nationally, in 1993 the House of Commons Home Affairs Committee in its Report on Domestic Violence adopted the definition “any form of physical, sexual or emotional abuse which takes place within the context of a close relationship” (Session 1992-93, Third Report, HC 245-I, para 5). The Home Affairs Committee report used two reports as the basis for its inquiry: the Report on Domestic Violence of a national inter-agency working party convened by Victim Support (1992) and the Report of the Law Commission on Domestic Violence and Occupation of the Family Home (1992, Law Com No 207). The Law Commission gave this explanation of domestic violence, at para 2.3:

“The term ‘violence’ itself is often used in two senses. In its narrower meaning it describes the use or threat of physical force against a victim in the form of an assault or battery. But in the context of the family, there is also a wider meaning which extends to abuse beyond the more typical instances of physical assaults to include any form of physical, sexual or psychological molestation or harassment which has a serious detrimental effect upon the health and well-being of the victim.”

Conclusion

36…. [The question on remand to the housing authority should be: -EV] Was this, in reality, simply a case of marriage breakdown in which the appellant was not genuinely in fear of her husband; or was it a classic case of domestic abuse, in which one spouse puts the other in fear through the constant denial of freedom and of money for essentials, through the denigration of her personality, such that she genuinely fears that he may take her children away from her however unrealistic this may appear to an objective outsider? This is not to apply a subjective test (pace the fifth reason given in Danesh). The test is always the view of the objective outsider but applied to the particular facts, circumstances and personalities of the people involved.

Thanks to Matthew Crawley for the pointer.