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The Domestic Abuse (Scotland) Bill, which was introduced on the 17th of March 2017, was created with the aim to change, and improve how the criminal justice system in Scotland responds to cases of domestic abuse. One of the major differences in comparison to previous domestic abuse law in Scotland t...

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Chapter 1: ‘Gold Standard’ Law “Coercive control is a strategic course of oppressive behaviour designed to secure and expand gender-based privilege by depriving women of their rights and liberties and establishing a regime of domination in personal life” - Evan Stark.1 1.1

Preface

The Domestic Abuse (Scotland) Bill, which was introduced on the 17 th of March 2017, was created with the aim to change, and improve how the criminal justice system in Scotland responds to cases of domestic abuse. One of the major differences in comparison to previous domestic abuse law in Scotland that is included in the bill is the recognition of psychological and emotional control as a form of domestic abuse.2 The 2018 act now allows for the criminalisation of abusive behaviours that are psychological, commonly referred to as ‘coercive control’. This includes abuse that is financial, sexual coercion, isolation, and intimidation, as well as patterns of abuse that have occurred over a period of time. 3 Some of these key areas have avoided close examination until this bill. The bill became law on the 9 th of March 2018 and the Domestic Abuse (Scotland) Act 2018 has been hailed as ‘gold standard’ law4 by Evan Stark, a highly influential expert in the field of the legal dimensions of interpersonal violence and control.5 1.2

The making of the well-anticipated ground-breaking law: The Domestic Abuse (Scotland) Act 2018

Marsha Scott of Scottish Women’s Aid highlights the importance of recognising that Scotland did not get here by accident or by luck 6. Prior to The Domestic Abuse (Scotland) Act 2018, there was no specific law in Scotland for domestic abuse and instead abusive acts were prosecuted as a breach of the Criminal Justice and Licensing (Scotland) Act 2010.7 The efforts of different people for a long time in 1 Evan Stark, Coercive control: The entrapment of women in their personal life (OUP 2007) 2 Domestic Abuse (Scotland) Bill 2017

3 Evan Stark and Marianne Hester, ‘Coercive Control: Update and Review’ (2019) 25(1) VAW < https://journals.sagepub.com/doi/10.1177/1077801218816191> accessed 2 February 2021 4 Marsha Scott, ‘The Making of the New ‘Gold Standard’: The Domestic Abuse (Scotland) Act 2018’ in Marilyn McMahon and Paul McGorrey (eds), Criminalising Coercive Control (Springer 2020) 5 Evan Stark, Coercive control: The entrapment of women in their personal life (OUP 2007) 6 Marsha Scott, ‘The Making of the New ‘Gold Standard’: The Domestic Abuse (Scotland) Act 2018’ in Marilyn McMahon and Paul McGorrey (eds), Criminalising Coercive Control (Springer 2020) 7 Prosecuted as a breach of s. 38 of the Criminal Justice and Licensing (Scotland) Act 2010

Scotland have supported the transformation of criminal and civil justice systems as well as private and third sector services. 8 A strength of The Domestic Abuse (Scotland) Act 2018 is that it has went through a journey of being drafted carefully with the support of a range of people who have had personal experiences of domestic abuse, along with several organisations that specialise in the area and support victims. The Bill also went through a lengthy process where it was redrafted several times in order to meet the views and opinions of these survivors and many experts in the field, making changes where appropriate. 9 This has resulted in law that reflects the views and the needs of the people in which it serves to support and provide justice for. The inclusion of patterns of coercive and controlling behaviours in this legislation 10 were included as a result of this process and are included in order to support more victims having greater access to justice.11 Many respondents involved in the consultation process expressed that previous laws in Scotland that were used to charge perpetrators of domestic abuse did not fully represent the experience of those who are victims.12 Especially drawing attention to abuse that is not just physical, but serious emotional and psychological abuse, referred to commonly as coercive control13. Victims who have suffered situations of psychological abuse from their partner had no legal grounds before to prosecute this behaviour, and many women in Scotland are exposed to a course of oppressive behaviour used by their partner and ex-partner to deprive them of their rights and liberties. 14 The agreement of a need for new law that includes and criminalises elements of coercive control shows that the criminal justice response to acts of this nature in Scotland was not

8 Dr Marsha Scott of Women’s Aid, ‘Gender Based Violence in the Modern World’ (Community Justice Ayrshire, 2019) accessed 6 January 2021 9 Marsha Scott, ‘Gender Based Violence in the Modern World’ (Community Justice Ayrshire, 2019) accessed 6 January 2021 10 Domestic Abuse (Scotland) Act 2018 s. 2(3)

11 Explanatory Notes to the Domestic Abuse (Scotland) Bill 2017 12 Explanatory Notes to the Domestic Abuse (Scotland) Bill 2017 13 Evan Stark, Coercive control: The entrapment of women in their personal life (OUP 2007)

14 Marsha Scott, ‘The Making of the New ‘Gold Standard’: The Domestic Abuse (Scotland) Act 2018’ in Marilyn McMahon and Paul McGorrey (eds), Criminalising Coercive Control (Springer 2020)

previously doing enough to pick up the wide range of patterns of abuse that many victims were suffering from, that are not just of a physical nature.15 Critics in the stages of drafting the Domestic Abuse (Scotland) Act 2018 raised concerns over the widening of the definition of what constitutes abuse in section 1 16 and the impact of including elements of coercive control on data and crime in Scotland. If physical, emotional and psychological abuse are grouped together under one offence then this can create practical difficulties when it comes to measuring and examining data on domestic abuse. Physical injury can be measured, whereas psychological harm can be argued as much more difficult. 17 Evan Stark acknowledges criticisms like this and agrees that indeed he anticipates measurement and data collection challenges.18 In one example, it is highlighted the struggle of collecting national data when dealing with coercive control, concluding that work will have to be done so that adequate measures can be adopted to support data collection of these types of abuse.19

The development of innovative and

effective research will help with the measurement of coercive and controlling behaviours in Scotland. Similar studies have been trialled in England and Wales, exposing some areas for development20. Calls for better domestic abuse law in Scotland not only came from experts fighting for stronger law, but undoubtedly from the large media presence around the Bill Walker trial21. In the verdict, Sheriff Kathrine Mackie acknowledged that there was strong evidence of the Scottish MSP Bill Walker acting in a controlling and degrading manner towards his former wives and stepchild and this behaviour had consisted of patterns of abusive behaviour (physical and controlling behaviour) over 28 years. 22 15 Evan Stark and Marianne Hester, ‘Coercive Control: Update and Review’ (2019) 25(1) Violence Against Women < https://journals.sagepub.com/doi/10.1177/1077801218816191> accessed 2 February 2021

16 Domestic Abuse (Scotland) Act 2018 s. 1

17 Walby S and Towers J S, ‘Measuring violence to end violence: mainstreaming gender’ (2017) 1(1) JGBV

accessed 21 December 2020 11,31 18 Evan Stark and Marianne Hester, ‘Coercive Control: Update and Review’ (2019) 25(1) VAW accessed 2 February 2021 19 Andy Myhill, ‘Measuring Coercive Control: What Can We Learn From National Population Surveys?’ (2015) 21(3) VAW accessed 3 January 2021 20 Meghan Elkin, ‘Developing a measure of coercive or controlling behaviour’ (ONS, 18 April 2019) < https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/developingameasureofcontrollin gorcoercivebehaviour/2019-04-18> accessed 2 March 2021 21 Bill Walker, former MSP

22 Marsha Scott, ‘The Making of the New ‘Gold Standard’: The Domestic Abuse (Scotland) Act 2018’ in Marilyn McMahon and Paul McGorrey (eds), Criminalising Coercive Control (Springer 2020)

This behaviour was identified as clearly harmful, although much of his behaviour controversially did not amount to a criminal offence in Scotland in this case. Often, trials that involve people who are well-known can end up in the media and then receive back-lash from the public.23 This very public trial and high-profile case exposed areas that the public were not happy with, putting pressure on the government in which reform and better domestic abuse law was then a resolution for.24 There was recognition given by the Sheriff of the psychological harm that Bill Walker has carried out, and the lack of importance attached to domestic abuse cases often being viewed as “just a domestic”.25 Bill Walker would have been allowed to remain in parliament if he had not chosen to resign, as the grounds for expulsion are a sentence of more than one year, and he had been given the maximum punishment which was 1 year imprisonment.26

1.3

A specific offence: The shift in focus from victim to perpetrator

The Domestic Abuse (Scotland) Act 2018 provides conditions where abusers can be prosecuted for areas that were already included in Scot’s law, but not under a distinct domestic abuse offence, including stalking, assault, threatening abusive behaviour and sexual offences. it also covers areas that were not included previously, making it criminal to use psychologically or emotionally abusive behaviours, often termed as coercive control, against a partner or ex-partner. These are both included providing that the conditions are met in section 1 of the 2018 act. Firstly, that a reasonable person would consider the course of behaviour to be likely to cause B to suffer physical or psychological harm. 27 This means that more focus is 23 Michelle Burman and Oona Brooks-Hay, ‘Aligning policy and law? The creation of a domestic abuse offence incorporating coercive control’ (2018) 18(1) CCJ

accessed 13 March 21 24 Evan Stark, ‘The Coercive Control Framework: Making Law Work for Women’ in Marilyn McMahon and Paul McGorrey (eds), Criminalising Coercive Control (Springer 2020)

25 Johnson S, ‘Wife-beater former MSP Bill Walker jailed for a year’ Daily Telegraph (London, 20 September 2013) accessed 2 January 2021

26 Marsha Scott, ‘The Making of the New ‘Gold Standard’: The Domestic Abuse (Scotland) Act 2018’ in Marilyn McMahon and Paul McGorrey (eds), Criminalising Coercive Control (Springer 2020) 27 Domestic Abuse (Scotland) Act 2018 s. 1(2)(a)

placed upon the person carrying out the abusive behaviour rather than the victim of the abuse. This alleviates some of the burden of proving that the act caused psychological or physical harm, it is an objective test that instead picks up the likelihood of harm.28 The 2018 act requires evidence of a course of behaviour amounting to the abuse 29, where single incidents are not covered (although they would be under different Scottish law). This is important as it recognises that an incident on its own may not seem as serious, but with a wider understanding that often several incidents can build up and cumulate to cause that person harm and suffering over a period of time. 30 The reasonable person test is effectively a threshold test, showing that Scottish domestic abuse law focuses less on what the specific behaviours are, and more about that the behaviours are criminal because they cause harm. This is why section 2 of the act deliberately leaves the range of behaviours wide31, thus picking up a range of different harmful behaviours. In cases of coercive control, not every person who has suffered will display an impact. Some may be able to hide the psychological abuse they are suffering or be more resilient in their reactions to it. This emphasises the importance of the reasonable person test in domestic abuse cases as it provides consistency in the law showing that perpetrators are less likely to avert justice only because the victim of their abuse did not display the full impact of it or that they were more able to cope with it. 32 The reasonable person test of likelihood to cause harm is a real strength of the Domestic Abuse (Scotland) Act 2018.33 The second condition provided in the Domestic Abuse (Scotland) Act 2018 is that either:

28 Burman M and Brooks-Hay O, ‘Aligning policy and law? The creation of a domestic abuse offence incorporating coercive control’ (2018) 18(1) CCJ

accessed 13 March 21

29 Domestic Abuse (Scotland) Act s. 1(1)(a)

30 Explanatory Notes to the Domestic Abuse (Scotland) Act 2018 asp 5 Part 1 31 Domestic Abuse (Scotland) Act 2018 s. 2 32 Explanatory notes to the Domestic Abuse (Scotland) Act 2018 33 Domestic Abuse (Scotland) Act 2018

(i)

A intends by the course of behaviour to cause B to suffer physical or psychological harm, or 34

(ii)

(ii) A is reckless as to whether the course of behaviour causes B to suffer physical or psychological harm.35

Every criminal offence is Scotland requires mens rea and the need to show the intent to harm.36 This means that the prosecution will have to show that there was intent to control or coerce someone or that the person was reckless as to whether their course of behaviour would cause such psychological harm.37 For both of these conditions it is important to examine the use of the word psychological. When the Domestic Abuse (Scotland) Act 2018 came into force it is likely that there may have been concerns around the choice of wording, as the word psychological often suggests a clinical nature that would require an examination by a professional. Although, this matter is resolved in section 1(3) where it is defined that psychological harm is one that for the purpose of this act includes fear, alarm or distress.38 There is no reference to a need for a clinical examination to prove psychological harm in cases under The Domestic Abuse (Scotland) Act 2018. For many years, the focus around domestic abuse was primarily on the physical aspects of abuse. The reason for this is because it was believed that physical injuries were more significant to women, even though many expressed that violence was not the worst part of the abuse that they were suffering from. 39 Previous criminal law in Scotland failed to reflect the lived experiences of domestic abuse victims with no inclusion of psychological and emotional abuse. 40 As time has gone on, there is 34 Domestic Abuse (Scotland) Act 2018 s. 1(2)(i) 35 Domestic Abuse (Scotland) Act 2018 s. 1(2)(ii)

36 Todd Archibald, ‘The Interrelationship Between Provocation and Mens Rea: A Defence of Loss of Self-Control’ (1986) 28(4) Crim. L. Q. accessed 2 December 2021 37 Domestic Abuse (Scotland) Act 2018 s. 1(2)(b) 38 Domestic Abuse (Scotland) Act 2018 s. 1(3)

39 Evan Stark, ‘Professor Evan Stark: Coercive Control and Children’ (April 2017) < https://www.youtube.com/watch?app=desktop&v=kvHbVzTzpX0> accessed 5 January 2021 40 Charlotte Bishop and Vanessa Bettinson, ‘Evidencing domestic violence, including behaviour that falls under the new offence of ‘controlling or coercive behaviour’ (2018) 22(1) E&P < https://journals.sagepub.com/doi/10.1177/1365712717725535> accessed 11 January 2021

now a much wider understanding of abuse in Scotland, reflected by the widening of the definition of abuse in the Domestic Abuse (Scotland) Act 2018. 41 As previously mentioned, this act does not provide a narrow definition of what ‘abusive behaviour’ is and instead leaves this intentionally extensive, which is important in order to encompass the varies of harm that can be faced in an abusive relationship. 42 The explanatory notes for the 2018 act also provide a range of examples of where a behaviour may be considered to be abusive as guidance. Such as cases where the offender harms the victim by making them dependant on them through the control of money or big decision-making as shown in section 2(3)(a). 43 This shows a change in understandings of the harm that women are experiencing that goes way beyond physical violence. The seriousness of abuse is no longer measured by solely the level of injuries sustained but has a much wider scope and recognises the longlasting psychological effects of abuse.44

1.4

Is retribution enough to divert perpetrators from future abuse?

Critics may argue that the new Scottish law is an example of a culture of overcriminalisation and that legislation like this is premature and should be avoided. There is an acknowledgement that having criminal punishment can avert those or reduce the rate of recidivism, but there is also an argument that ‘widening the net’ of domestic abuse under s. 1 of the 2018 act45 will result in more convictions, which is not always a positive as there are arguably many issues around criminalisation. It could be suggested that Scotland is not doing enough to look at the structural issues around domestic abuse46. The legal system in Scotland has shown a commitment to 41 The Domestic Abuse (Scotland) Act 2018 s. 2

42 Ilona Cairns, ‘The Moorov doctrine and coercive control: Proving a ‘course of behaviour’ under s.1 of the Domestic Abuse (Scotland) Act 2018’ (2020) 24(4) E&P accessed 5 November 2020 43 Explanatory Notes to the Domestic Abuse (Scotland) Act 2018

44 Evan Stark, ‘Professor Evan Stark: Coercive Control and Children’ (April 2017) < https://www.youtube.com/watch?app=desktop&v=kvHbVzTzpX0> accessed 5 January 2021

45 Domestic Abuse (Scotland) Act 2018

46 Leigh Goodmark, ‘Should Domestic Violence Be Decriminalized?’ (2017) 53 Harv. J.L. & Gender accessed 3 January 2021

ending different types of domestic violence whilst ensuring those who abuse their partners are held accountable47. Although, it appears as though a focus is perhaps needed on the causes of domestic abuse and the structural factors that contribute to the abuse taking place, otherwise how will Scotland ever put an end to something when the criminal justice system skips a vital part in the story. 1.5

The Gendered Nature of Domestic Abuse

Scotland, unlike many other jurisdictions in the world, have a clear understanding that the cause of violence against women and children is as a result of women’s inequalities and women’s poverty of power in their public life. 48 This lack of safety and freedom for women and children has been shown to be high up in Scottish Government agenda, resulting in strong legislation with high potential, The Domestic Abuse (Scotland) Act 2018. Scottish law acknowledges the importance of leaving domestic abuse law accessible to all, as domestic abuse does not only happen to women. Although, the rare thing about the Domestic Abuse (Scotland) Act 2018 is that it encompasses and recognises the significance of having a gendered policy understanding as it happens mostly to women 49. The United Nations gives a definition of gender-based violence as: “The definition of discrimination includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.” 50 Domestic abuse, specifically acts of coercive control, are more commonly committed by men towards women. For context, the most recent government statistics show that in the year 2018-19 police recorded 60,641 incidents of domestic abuse in 47 Scottish Government, Equally Safe: Scotland’s strategy to eradicate violence against women (April 2018) < https://www.gov.scot/publications/equally-safe-scotlands-strategy-prevent-eradicate-violence-against-womengirls/> accessed 22 December 2020 48 Dr Marsha Scott of Women’s Aid, ‘Gender Based Violence in the Modern World’ (Community Justice Ayrshire, 2019) accessed 6 January 2021

49 Michell...