Domestic abuse redefined

The Domestic Abuse (Scotland) Act 2018 comes into force in April this year. When the bill was first announced, the then Justice Secretary Michael Matheson described domestic violence as “one of society’s most insidious crimes”, and spoke of a “momentous day”, saying laws would now “reflect the experience all too many women have suffered”.

The Act creates a specific offence of “abusive behaviour in relation to a partner or ex-partner”, and widens the meaning of domestic abuse in Scotland to make physical and psychological harm a criminal offence. The Act follows the focus by the Scottish Government and Rape Crisis Scotland public awareness campaigns to enhance general understanding of partner abuse.

What is the Act intended to cover?

The Act redefines partner abuse and creates an offence with respect to the engaging by a person in a course of behaviour which is abusive towards that person’s partner or ex-partner. It covers not only spouses, civil partners and cohabitants but also intimate personal relationships where the couple do not cohabit.

What constitutes abusive behaviour?

As well as physical abuse, the Act covers other forms of behaviour, including “psychological abuse” and “coercive and controlling behaviour”. The Act provides a description of what constitutes abusive behaviour as including violent, threatening or intimidating behaviour whose purpose is one of the following:

• making a partner dependent on or subordinate to the perpetrator;
• isolating them from their friends, relatives or other sources of support;
• controlling, regulating or monitoring their day-to-day activities;
• depriving them of, or restricting, their freedom of action;
• frightening, humiliating, degrading or punishing them.

The offence is aggravated if any of the behaviour is directed at a child or witnessed by them.

What are the implications of the Act?

The Act has been hailed as a significant step forward in allowing for the criminal prosecution of perpetrators of psychological abuse. Supporters note that the Act takes one event and examines whether this is part of a pattern or course of conduct by, for example, controlling, regulating, monitoring, depriving, restricting or preventing a victim having access to money or communication, or psychological abuse in the form of conduct that is frightening, humiliating, degrading, insulting or punishing.

These behaviours would have to have occurred repeatedly and over the course of time to constitute a pattern. The behaviours would have to be deliberate or reckless to the extent that any reasonable person would consider the behaviour likely to cause harm.

On the other side of the debate there is concern as to whether the Act will achieve the desired outcome, and whether there will be difficulties in obtaining sufficient evidence for a successful prosecution.

Challenges brought about by the Act

While the new legislation is designed to offer greater protection to victims, there will be challenges to ensure it is applied effectively. Securing sufficient evidence could also be problematic: partner abuse takes place behind closed doors, and even close family and friends of the victim are often unaware that it is taking place.

Scottish Government funded research (2014-2015 Scottish Crime and Justice Survey: Partner Abuse (2016)) revealed that just over a tenth (11%) of respondents who had experienced gender-based violence in the last 12 months had reported the most recent incident to the police. A quarter (28%) of those who experienced gender-based violence in the last 12 months appeared to have told no one about the abuse, as they felt that events were “private, personal or family matter”; felt that events were too trivial/not worth reporting; dealt with the matter themselves, believing that the police could not have done anything or that it would have been inconvenient or too much trouble; or feared that disclosing would make matters worse. These factors are cited as the main reasons for not reporting domestic abuse.

The Act is to be welcomed for widening the focus of domestic violence to include psychological abuse, but the under-reporting of domestic abuse and the challenge of proving a course of conduct mean that cases will remain complex and idiographic.