18/19, C. Gaw, ‘Breaking the Boundaries: Prosecuting Domestic Abuse in Light of the Domestic Abuse (Scotland) Act 2018’

Author: Cameron Gaw

The Domestic Abuse (Scotland) Act 2018, due to enter into force in early 2019, aims to revolutionise the prosecution of domestic abuse in Scotland. This new legislative phenomenon introduces a discrete offence of domestic abuse to the Scottish criminal justice system. Not only does it reflect the continuous nature of abusive conduct, it allows for prosecution of both physical and/or emotional abuse. The rationale behind the new offence places an emphasis on the offending behaviour itself rather than its impact – a significant move towards prioritising the victim. Given it is yet to be utilised, it is impossible to give a practical evaluation of its implementation. However, reflection on the activities in other jurisdictions (particularly England and Wales) and consideration of the wider literature allows for analysis of the likely practical implications. For the purposes of this article, consideration shall be given to the possible shortfalls of this new legislative innovation – specifically the social, evidential and cultural barriers. Particular reference shall be given to the criminalisation of emotional and psychological abuse. This article shall conclude that despite considerable doubt surrounding its effectiveness, the 2018 Act is a prominent step in the right direction for the prosecution of domestic abuse in Scotland.

 

 

Pre-2018 Act 

In tackling domestic abuse, Scotland has seen notable development. Prior to the 2018 Act, the criminal justice system in Scotland offered no specific criminal offence of domestic violence or domestic abuse. The Scottish Executive – subsequent to the devolution settlement under the Scotland Act 1998 – vowed to tackle the increasing incidence of domestic abuse in Scotland with the formation of a National Strategy.[1] Nonetheless, the Solicitor General solicited the Scottish Government in 2014 to review the possibility of a distinct domestic abuse offence, citing that the current charges for domestic abuse placed an unwarranted focus on individual instances of abusive behaviour.[2] This was particularly relevant given the inherent repetitiveness of the conduct which is more often than not at the centre of domestic abuse cases. Noted also was the failure of existing law to adequately recognise the ‘impact and consequences’ of all categories of abusive behaviour, particularly the non-physical aspects.[3] Figures from the Crown Office and Procurator Fiscal Service have shown the most common charge in domestic abuse cases to be that of breach of the peace,[4] including more specific offences of ‘threatening and abusive behaviour’ and ‘stalking’ under the Criminal Justice and Licensing (Scotland) Act 2010 – s.38 and s.39, respectively.[5] Section 38 of the 2010 Act spans a broad range of behaviour including non-violent incidents. However, it fails significantly in its lack of consideration of the possibility that the behaviour may have occurred within the context of a coercive and controlling relationship.

 

The New Offence

Perhaps most importantly, at least from a social perspective, the creation of a distinct domestic abuse offence symbolically relays to both the public and law enforcement that such behaviour is socially intolerable.[6] Section 1 of the 2018 Act creates the specific offence of engaging in a course of conduct of an abusive nature towards a partner or ex-partner.[7] Particular reference has been given to behaviour that is violent, threatening or intimidating,[8] or has the effect of:

  • Making the victim dependent on, or subordinate to the abuser,
  • Isolating the victim from friends, relatives or other sources of support
  • Controlling, regulating or monitoring the victim’s day-to-day activities
  • Depriving the victim of, or restricting the victim’s, freedom of action
  • Frightening, humiliating, degrading or punishing the victim[9]

Most innovatively, the legislation attempts to criminalise emotional and psychological abuse in Scotland (more commonly referred to as ‘coercive control’) for the first time. It also allows for prosecution of physical and/or emotional abuse as one continuing offence, as opposed to a singular instance of abusive behaviour. This is a relatively novel concept and can be distinguished from the approach in England and Wales, where a single offence of ‘coercive control’ was implemented in 2015.[10] The justification for integrating all categories of abusive behaviour into one criminal offence lies in the recognition that domestic abuse is commonly experienced as a continuum, consisting of long-term, ongoing and varied conduct designed to continually suppress the victim.[11]

The necessary mens rea of this new offence is the intention to cause physical or psychological harm to the victim, or recklessness as to whether the conduct causes the victim to suffer such harm.[12] Rather progressively, the 2018 Act introduces an objective test – whether a reasonable person would consider the behaviour in question to be likely to cause physical or psychological harm to the alleged victim.[13] To that end, the commission of an offence does not rely on evidence of the victim demonstrating that the conduct in question actually caused harm.[14] This acknowledges that visible ‘harm’ is not attributable to all types of abusive behaviour and acts as a considerable safety mechanism for reporting, allowing victims to recount the abuse without sharing personal details of its effects.[15]

However, domestic abuse is predominantly a private matter which, together with the corroboration requirement, would suggest that prosecution is unlikely without involvement of the victim.[16] Thus, the new legislation, arguably, foresees the potential abolition of the corroboration requirement.[17] Regardless, it is doubtful that any conviction would succeed without substantive victim evidence. Although victims need not demonstrate actual harm, the limited awareness of the impact on the victim may pose significant difficulty in assessing the severity of the conduct and thereby determining an appropriate sentence.[18]

 

The Role of Law Enforcement

It has been noted that the existence of a specific domestic abuse offence could result in police officers failing to respond immediately to acts of abuse, in the anticipation that a pattern of abusive behaviour will subsequently transpire.[19] The role of law enforcement in determining the relevant charge is key. Wrongful categorisation of criminal conduct can have serious adverse consequences in relation to both the accused and more importantly, the victim. The accused, when wrongfully labelled as a ‘serial abuser’, may suffer unfair social treatment in wider society.[20] On the other hand, if only one incident out of a pattern of abuse is prosecuted, this relays to the accused that he/she has merely ‘crossed a line into criminality’ and simply needs to retreat back behind that line, rather than cease all future abusive action.[21] This will have serious consequences for the victim, where the accused continues to pursue an abusive course of conduct, this time with the knowledge of where the line is drawn.

Distinction will have to be drawn between genuine continuity of abusive behaviour and separate individual breaches of existing law.[22] This will require open and consistent exercise of discretion by police and prosecutors to avoid arbitrary application of the new offence .[23] Appropriate labelling of offences will require rational communication between all bodies involved in the prosecution process.[24] Extensive training – particularly improved evidence-gathering techniques and risk assessment methods – will also play an important role.[25]

 

The Victim’s Right to Review – An Unintended Consequence

Under the Victims and Witnesses (Scotland) Act 2014, alleged victims of criminal offences have the right to review the prosecutor’s decision not to prosecute.[26] As previously discussed, the new section 1 offence combines all forms of abuse into one charge. This significantly increases the probability of a single charge against the accused. Where previously the accused may, for example, have been charged with several individual assault charges, this new offence creates a single charge to reflect the continuing nature of the conduct. Prior to court proceedings, the prosecutor may delete elements of the section 1 charge which would otherwise have been prosecuted as a single charge under existing offences.[27] Such deletions would fail to trigger the victim’s right to review under the 2014 Act – leading to a ‘dilution’ of victims’ rights during the prosecution process.[28]

Deleting elements of a domestic abuse charge may result in the victim feeling only partially believed. From a psychological perspective this is important. Humiliation will undoubtedly follow, where the victim feels she has been made out to have fabricated the behaviour – not to mention the wider social implications of being labelled a liar. The victim could be left questioning the legitimacy of her complaint and contemplating, for example, whether on some level she deserved the treatment or whether she merely overexaggerated. This in turn could lead the victim to doubt whether the abusive conduct was anything more than a domestic.[29]

 

Prosecuting Emotional Abuse – The Importance

Criminalising non-violent aspects of domestic abuse is a remarkable step forward for victims, particularly those who are subjected to a significant degree of control but experience little or no physical violence. Not only does it provide an educative function in terms of enhancing wider social recognition of domestic abuse, it allows victims themselves to better understand their experiences.[30] It has been established that victims are often unaware that they have suffered emotional abuse until long after it has occurred, often blaming themselves for the treatment they have received.[31] The new offence will also allow police to respond to high-risk cases where significant psychological control has the potential to lead to intimate partner homicide.[32]

In terms of victim credibility, diverting from the current focus on physical abuse – where the court hears only the relevant evidence specific to the charge – will have significant advantages. Prosecuting individual incidents can take the victim’s evidence out of context, leaving juries with insufficient insight into all aspects of the relationship.[33] Ultimately, this fails to represent the whole truth of the matter. In such cases, the jury may make assumptions as to the severity of minor events or may wrongfully presume a lack of mental capacity by intoxication or the possibility that the conduct was self-defence.[34] Criminalising emotionally abusive conduct will make the broader context of a relationship relevant during trial proceedings, ensuring that all aspects of the behaviour, both physical and emotional are accurately reflected. This provides a clearer indication as to the accused’s motives, whilst simultaneously enhancing the reliability of victim testimony.[35]

 

Recognising Emotional Abuse

Despite the gender neutral application of the new provisions, it is widely recognised that victims are most likely to be women.[36] The prosecution of gendered violence is an ongoing issue which continues to portray an inadequate response to the issues faced by women. In a society which continues to stigmatise gender roles, emotional abuse – which typically involves ‘micro-regulation’ of everyday activities commonly attributed to the ‘traditional’ role of women as home-makers[37] – may be difficult to establish. By default, women already undertake some form of ‘unpaid servitude’ in their daily lives even in the context of non-abusive relationships, making regulation of their activities almost invisible.[38] Discriminatory social norms accept that male dominance is a natural aspect of most heterosexual relationships.[39] Thus, a failure to critically analyse domestic situations may result in the accused being labelled as merely an old-fashioned male who expects particular standards in his home.[40]

The adoption of a ‘coercive control’ offence relies heavily upon the willingness of victims to actually come forward and extensive research has shown women are unlikely to do so.[41] One contributing aspect is the difficulty women face in explaining psychological abuse to police officers.[42] Whereas physical abuse can often be demonstrated by the presence of bruising or other external injury, acquiring quantifiable evidence of emotional abuse is impossible. Given that psychological abuse involves distinct mechanisms of control which are known only to the parties involved,[43] it is extremely challenging to give objective assessment to the likelihood of non-physical abuse having occurred.[44] The abuser, for example, may use specific signals, words or even looks – the true meaning of which is known only to the victim – to exert control.[45] From an outside perspective, such conduct may seem harmless and therefore difficult to class as abusive behaviour. This creates problems for those involved in the prosecution process proving beyond reasonable doubt that the behaviour was abusive and places an undesirable reliance on victim testimony.[46] An emotionally abusive partner is extremely unlikely to let the victim’s testimony go unchallenged, especially given that distorting the victim’s reality is a significant aspect of much abuse.[47]

Applying the new emotional abuse offence in practice will require deeper and more sensitive gender analysis. This places a great deal of confidence in frontline police officers’ ability to understand and recognise the complexities of emotional abuse.[48] The move from the current incident-centred approach under existing law to a greater awareness of continuity of harm will require broader understanding of gender dynamics and the context of relationships.[49] Officers will be required to identify the possible existence of emotionally abusive behaviour and extract the relevant information from the victim to establish a series of related abusive incidents.[50] The extent to which police training, which tends to focus on procedure, will effectively educate officers on these broader social issues is questionable.

The focus on actual behaviour rather than impact on the victim is undoubtedly a desirable strategy, but the inherent privacy of domestic abuse means the full story will remain unknown. As such, predicting how judges will assess the severity of the offence is rather complicated. The clearer understanding of violence and more easily attainable evidence means physical abuse cases are likely to be placed at the top of the so-called ‘hierarchy of harms’, both by judges and the wider population.[51]

Nonetheless, Professor Evan Stark – with whom the concept of ‘coercive control’ was first accredited – has shown a high level of approval for the 2018 Act. Acknowledging the criticism, he outlines the starting point for what could be a highly effective and life-changing piece of legislation:

What matters now is what happens when the first calls come in under the new law. How will the police and the courts respond to that first caller who insists ‘violence wasn’t the worst part’? Will she be told: ‘Talk about the violence’, or what we hope she’ll hear: ‘Yes, I know what you mean’.[52]

 

Conclusion

Despite justified criticism, nothing should detract from the notion that the 2018 Act is a highly innovative and progressive piece of legislation, placing the interests of the victim firmly at the centre of the prosecution process. For the first time, Scottish legislation has recognised the vast spectrum of abusive conduct suffered and the continuous nature of most cases, to better reflect the reality of domestic abuse. It is commonplace for women to internally normalise the abuse they have been subjected to, either accepting it or not knowing any different. Not only will the new offence allow victims to better understand their experiences, it communicates to the accused, the victims, criminal justice professionals and wider society that such conduct should and will be taken seriously.

Moreover, the issues of police discretion are of vital importance in shaping the potential for the new provisions. Going forward, an emphasis must be placed on training to reduce the effects of incorrect labelling and overcome the evidential issues which will otherwise be damning to effective implementation. The exercise of discretion must also continue to respect the right to victim engagement under the 2014 Act. The new legislation is not a complete solution. A broader cultural shift is needed towards a greater understanding of the gender norms which continue to impede women’s access to justice.

 

 

 

References

  1. Bettinson, ‘Criminalising Coercive Control in Domestic Violence Cases: Should Scotland Follow the Path of England and Wales?’ [2016] Crim. L.R. 3
  2. Bettinson, ‘Is the creation of a discrete offence of coercive control necessary to combat domestic violence?’ [2015] NILQ 66(2) 179

C Bishop, “Why It’s so Hard to Prosecute Cases of Coercive or Controlling Behaviour” The Conversation [2016]

  1. Brooks, ‘Scotland set to pass ‘gold standard’ domestic abuse law’ The Guardian (2018): https://www.theguardian.com/society/2018/feb/01/scotland-set-to-pass-gold-standard-domestic-abuse-law

COPFS, Domestic Abuse Charges Reported to COPFS 2016-2017, http://www.copfs.gov.uk/images/Documents/Publications/Statistics%20-%20Domestic%20Abuse/DOMESTIC%20ABUSE%20CHARGES%20REPORTED%20TO%20COPFS%202016-17%20Word.pdf

Domestic Abuse (Scotland) Act 2018

  1. Forbes, ‘The Domestic Abuse (Scotland) Act 2018: The whole story?’ [2018] Edin L.R. 22 406
  2. Gowland, ‘Protection from Harassment Act 1997: The ‘new’ stalking offences’ [2013] Journal of Criminal Law 77 387

J.R. Tolmie, ‘Coercive Control: To criminalize or not to criminalize?’ [2018] Criminology and Criminal Justice 18(1) 50

  1. Walklate, K. Fitz-Gibbon, J. McCulloch, ‘Is more law the answer? Seeking Justice for victims of intimate partner violence through the reform of legal categories’ [2018] Criminology & Criminal Justice 18(1) 115

Victims and Witnesses (Scotland) Act 2014

 

[1] V. Bettinson, ‘Criminalising Coercive Control in Domestic Violence Cases: Should Scotland Follow the Path of England and Wales?’ [2016] Crim. L.R. 3, 175

[2] ibid.

[3] ibid. 178

[4] COPFS, Domestic Abuse Charges Reported to COPFS 2016-2017, http://www.copfs.gov.uk/images/Documents/Publications/Statistics%20-%20Domestic%20Abuse/DOMESTIC%20ABUSE%20CHARGES%20REPORTED%20TO%20COPFS%202016-17%20Word.pdf [Accessed 8th January 2019]

[5] Second most common charge was ‘common assault’

[6] V. Bettinson, (n.1) 178

[7] Note: the exclusion of other family members avoids conflict with child abuse offences

[8] Domestic Abuse (Scotland) Act 2018 s.2(2)(a)

[9] ibid. s.2(3)

[10] See the offence of ‘coercive control’ under Serious Crime Act 2015 s.76

[11] E. Forbes, ‘The Domestic Abuse (Scotland) Act 2018: The whole story?’ [2018] Edin L.R. 22 406, 407

[12] 2018 Act s.1(2)(b)

[13] ibid. s.1(2)(a)

[14] ibid. s.4(1)

[15] E. Forbes, (n.11) 407

[16] ibid.

[17] ibid.

[18] ibid. 408

[19] J.R. Tolmie, ‘Coercive Control: To criminalize or not to criminalize?’ [2018] Criminology and Criminal Justice 18(1) 50, 59-60

[20] E. Forbes, (n.11) 408

[21] J. Gowland, ‘Protection from Harassment Act 1997: The ‘new’ stalking offences’ [2013] Journal of Criminal Law 77 387, 389

[22] E. Forbes, (n.11) 409

[23] ibid.

[24] ibid.

[25] ibid.

[26] Victims and Witnesses (Scotland) Act 2014 s.4

[27] E. Forbes (n.11) 410

[28] ibid.

[29] ibid. 411

[30] J.R. Tolmie (n.19) 53

[31] V. Bettinson, ‘Is the creation of a discrete offence of coercive control necessary to combat domestic violence?’ [2015] NILQ 66(2) 179, 196

[32] S. Walklate et al. ‘Is more law the answer? Seeking Justice for victims of intimate partner violence through the reform of legal categories’ [2018] Criminology & Criminal Justice 18(1) 115, 121

[33] J.R. Tolmie (n.19) 52

[34] ibid.

[35] ibid.

[36] See e.g. V Bettinson (n.1) 168; S. Walkate et al. (n.32)

[37] C Bishop, “Why It’s so Hard to Prosecute Cases of Coercive or Controlling Behaviour” The Conversation [2016]

[38] J.R. Tolmie (n.19) 56

[39] V. Bettinson (n.56) 195

[40] J.R. Tolmie (n.19) 56

[41] S. Walkate et al. (n.32) 121

[42] ibid. 123

[43] ibid.

[44] C. Bishop (n.36)

[45] ibid.

[46] ibid.

[47] S. Walkate et al. (n.32) 123

[48] ibid. 121

[49] ibid.

[50] ibid.

[51] E. Forbes (n.11) 410

[52] L. Brooks, ‘Scotland set to pass ‘gold standard’ domestic abuse law’ The Guardian (2018): https://www.theguardian.com/society/2018/feb/01/scotland-set-to-pass-gold-standard-domestic-abuse-law [Accessed 8th January 2019]

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