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Opinion: Louise Johnson

15 May 17

The Domestic Abuse (Scotland) Bill has its flaws, particularly as regards children, but breaks new ground in looking beyond physical violence to abusive control and should be welcomed for its approach

by Louise Johnson

To many people, “real” domestic abuse is physical violence, despite the widely accepted paradigm that recognises coercive control and a course of conduct perpetrating a persistent and systematic attack on women’s physical and mental wellbeing.

Clearly, physical and sexual abuse of women by their partners can have long-lasting, detrimental and, sometimes, fatal consequences, and cannot be minimised or dismissed.

However, a focus on domestic abuse as being individual “incidents,” or primarily physical abuse, hides its true nature and diminishes the experience of women subjected to subtle and pernicious behaviours that restrict their autonomy and seek to undermine and humiliate.

This is why Scottish Women’s Aid warmly welcomes the long overdue Domestic Abuse (Scotland) Bill currently before the Scottish Parliament. This much-needed bill closes the gap in the criminal law by creating an offence that addresses abuse not covered by the existing offences. The bill criminalises, for the first time in Scots law, a course of abusive conduct directed towards partners or ex-partners, conduct likely to cause physical or psychological harm, either intentionally or recklessly.

Crucially, the bill recognises the strategies deployed by perpetrators to constrain and control women’s space for action. The abusive behaviour might include destruction of property, intentional failure to act, abuse targeted at a third party (such as a child or other relative) – tactics often used to secure compliance, silence, humiliation, fear, and, always, control by the perpetrator.

The wide-ranging spectrum of coercive control behaviours (and effects) in the bill reflect what women, children and young people tell us about their abuse.

One of the several tests establishing the offence is that a “reasonable person” must consider the behaviour as likely to cause the partner to suffer harm. SWA has reservations on the use of subjective tests of this nature for offences involving domestic abuse, given its surrounding context of stereotypical gender roles and the double standards for “acceptable behaviour” in relationships in Scottish society. We can, however, on balance, see the utility of the test.

Removing the requirement to prove specific harm has the positive effect of avoiding inappropriate focus on the victim’s rather than the perpetrator’s behaviour, provides some insurance against systematic re-victimisation through the court processes, and promotes prosecution processes that do not require a victim to display some popular notion of distress to be believed. “Reasonableness” is also a defence against behaviour falling under the offence, which underlines the necessity of appropriate training for all of those involved in the investigation, prosecution and sentencing of these offences.

The bill is not perfect. The proposed law is missing language around extraterritorial jurisdiction (required for compliance with the Council of Europe’s Istanbul Convention), and fails to provide for some form of emergency barring order, also required by article 52 of the Convention – a need supported by our recent research on homelessness and domestic abuse. (Read the report.)

Our biggest criticism is that the bill fails to respond to the enormity of harm done to children who live in households with domestic abuse. Children tell us that they experience abuse and coercive control as a 24/7 phenomenon; their abuse is no more an “incident” than their mother’s. This framing of their experience as an aggravator based on “witnessing” perpetuates the notion that domestic abuse doesn’t affect a child who is not “present”. The bill rightly restricts the definition of “domestic abuse” to partners and ex-partners, but it is disappointing that it does not better recognise the impact of domestic abuse on children within the offence.

Overall, however, the bill makes a positive move towards evidencing Scotland’s compliance with domestic and international obligations, and it is a driver to encourage further positive reforms in the justice system response to domestic abuse generally.

It is not perfect. It forges new legislative ground, and we will inevitably wish to amend the bill over the coming years.

But it represents a significant milestone in Scottish legislative policy, and fear of unintended consequences must not return us to the status quo. We suspect no one needs reminding that domestic and sexual violence is the single biggest violation of women’s and children’s human rights in Scotland. Doing nothing is not an option.

Louise Johnson is the legal issues worker at Scottish Woman's Aid

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