The Domestic Abuse (Scotland) Act 2018: achieving its aspirations?
This blog was written by Dr Fiona Morrison, Dr Claire Houghton, and Dr Camille Warrington, University of Edinburgh.
The Domestic Abuse (Scotland) Act 2018 was a major piece of legislation that intended to improve the Scottish criminal justice response to domestic abuse. In this blog, we share findings from the Domestic Abuse Court Experience project, research that involved in-depth interviews with twenty-two adult and child survivors of domestic abuse. We bring together the aims of the Act and anchor these to survivors’ experiences of criminal proceedings relating to domestic abuse. We also share survivors’ recommendations on what needs to change to ensure the aspirations of the Act are met.
The aims of the Domestic Abuse (Scotland) Act 2018 and survivors’ experiences
Expanding legal understandings of domestic abuse
The Act aimed to expand legal understandings of domestic abuse and take account of ideas of coercive control. This meant shifting understandings of domestic abuse from individual incidents or episodes of violence, towards understanding that it encompasses a raft of behaviours that are often ongoing, with deleterious consequences for victims’ – for their sense of self, their autonomy and ability to thrive. The Act also aimed to strengthen the prosecution of psychological and emotional abuse. In doing, the law would better reflect research with survivors on the serious impact that non-physical abuse has on their psychological and emotional health. The Act also introduced new provisions to make children more visible in the prosecution of domestic abuse. Again, reflecting research with children on their own experiences of domestic abuse and calls from activists to ensure the impact of domestic abuse on children is recognised in criminal law.
In our research, survivors were supportive of the aims of the Act. They agreed it better reflected their experiences of domestic abuse. However, the aspirations of the Act did not always translate to survivors’ experiences of criminal justice responses to domestic abuse. Survivors felt there was a persistent focus on single or severe incidents of physical violence rather than on ongoing abuse. Many felt the justice system struggled to deal with prosecution of psychological abuse, particularly abuse that took place online, via telephone or mobile phones. Survivors expressed significant concern that the investigation, prosecution and sentencing for domestic abuse offences, did not take account of the sustained level, severity, or impact of abuse they had experienced. The Act intends to make children more visible in the prosecution of domestic abuse. However, survivors, who were parents or children, reported that harm to children was not sufficiently recognised during the prosecution of domestic abuse. They felt perpetrators were not held to account for the impact on children, and that children’s safety and needs were not sufficiently addressed during the justice process. Many survivors also felt that abuse of a third party – for example, family and friends – was not been adequately taken account of.
The one…the incident thing that goes to court…with a case that involves domestic abuse,
it’s not just that one incident that actually matters.
I think that’s a really important point about the new law, emotional abuse and fear and alarm and distress,
all of those things should be covered, so I’m sorry they didn’t use that for [my son] …it doesn’t actually cover children.
Improving the criminal justice system’s ability to tackle domestic abuse effectively and protect victims
The Act aimed to improve the criminal justice system’s ability to tackle domestic abuse effectively and increase courts’ capacity to protect victims. It entitles victims and witnesses to ‘special measures’ to improve their experiences of giving evidence in court. For example, the opportunity to give evidence behind a screen or remotely. It also requires courts to consider making protective orders (Non-Harassment Orders) for victims and associated children when sentencing an offender.
Far from being at the centre of the justice process, survivors in our research felt they were on the periphery and were marginalised in and by justice processes. They pointed to ways in which the criminal justice process inadvertently undermined their safety. Survivors reported having inadequate knowledge of decision-making processes or the rationale for decisions made throughout investigation and court proceedings. They reported a lack of communication, collaboration, involvement, or transparency in decision-making. Most survivors found going to court difficult and, for many, frightening and traumatic. They were often uninformed about what was happening and why. Giving evidence in an adversarial process, recurring court adjournments and delays, all had significant impacts on survivors’ mental health. The expectation, that reporting domestic abuse would mean it would stop and be a route to safety, was not realised for all survivors. And while non-harassment orders (NHOs) offered protection and reassurance to some, this was not the experience for all survivors in the research.
And then we went. And we got there, and they kept moving about rooms and then they changed the court,
so we had to then move. And then we had to walk past dad quite a few times.
Someone came into the court and basically said, ‘We’ve done a plea bargain with [the accused],
he’s been charged on counts one and two have been put in, and counts three…
And, I was like what? Has he been charged with this or charged with that?
I don’t go out ever. If I go out, my daughter-in-law is either with me or my son.
I don’t go out myself and I’m struggling to move on.
A way forward?
Our research revealed a significant gap between the aspirations of the Act and survivors’ experiences of criminal justice responses to domestic abuse. Nonetheless, survivors were optimistic – they believed provisions in the Act better reflected their experiences. They also believed the criminal justice system has the potential to empower and provide a ‘sense of closure’ to survivors. They wanted justice responses to improve and prioritise survivors’ safety throughout the criminal justice process – from reporting to the police, through to the conclusion of, and post court proceedings. They made a range of recommendations to help achieve safety for survivors – maximising the use of the definition of domestic abuse in the Act; improving communication and collaboration with victims and witnesses; and enhancing approaches to special measures. Survivors further identified court-based advocacy and support, like that provided by EDDACS and ASSIST, as the most significant mechanism to enhance their feelings of safety. However, they also identified gaps in this provision, and urged for these be addressed – to ensure help was available from the start of all survivors’ justice journey, through to its conclusion and beyond. Doing this, would be an important first step forward to ensuring survivors’ safety, to help realise the aspirations of the Domestic Abuse (Scotland) Act 2018 and to improve the criminal justice response to domestic abuse.
The EDDAC worker talked me through it all and they talked me through what the courtroom
would look like and stuff. So, they were really clear with me.
I had no idea what to expect, to be honest, because I’ve never really had to do
anything like that before, so I don’t think anybody can prepare you for that, to
be honest, … But the preparation for it – I mean [my Women’s Aid worker]
as well as ASSIST – I had a lady from ASSIST, she was fantastic. She fought tooth
and nail to make sure she knew every last detail about it. See if it wasn’t for
ASSIST, I wouldn’t have known a thing.
Image provided by Dr Fiona Morrison.