Women's Justice Leadership Panel: report

7. Annex A: Justice Analytical Services (JAS) Evidence Notes

Stigma, Sexism and Culture in the Scottish Justice System: Evidence briefing

1. The impact of judicial processes

• Responses to the Call for Evidence (CfE) highlight how women entering the justice system report feeling that communication can be inadequate, leaving them facing practical difficulties as well as feeling unsupported.
• Delays in scheduling court dates have proven traumatic for some women, especially victims of sexual crimes, with the COVID-19 pandemic exacerbating these problems.

2. Stereotypes and 'rape myths'

• Gender-based stereotypes and assumptions about victims' behaviour at different stages of the justice system can have a damaging impact, particularly on victims of gender-based violence.
• Women in contact with the justice system often report feeling that their experience is not understood. Trauma-informed approaches, both in Scotland and internationally, can have a positive effect in this regard.
• CfE respondents suggest that 'rape myths' may be particularly harmful in the Scottish justice system, with mock jury studies finding these to be pervasive.
• Respondents highlight the opportunity for change in the recommendations of the review chaired by Lady Dorrian, including a pilot of judge-only trials for rape cases and a new specialist sexual offences court.

3. Surveillance and judgement

• Young women can face additional surveillance and risk being criminalised through contact with justice services, particularly those from ethnic minority groups.
• Respondents note that women can often face social stigma within their communities on release from prison, suggesting that community-based alternatives would help avoid this.

4. Re-traumatisation from contact with the justice system

• Responses to the CfE note that initial contact with the police and the evidence gathering process can have the effect of re-traumatising victims of sexual crimes.
• Delays and lengthy court processes can mean a loss of agency for victims and cause problems in their day-to-day lives.
• A lack of empathy from court officials alongside demanding requirements in court can be traumatic for women and take years to recover from

5. Attrition and a loss of confidence in the system

• Attrition (where cases are lost throughout the justice system) in the Scottish justice system is markedly high for sexual violence and can lead to a loss of trust in the system amongst women.
• Aspects of the justice system unique to Scotland, such as the not proven verdict and corroboration requirement, are suggested by respondents as contributing to attrition rates and a loss of confidence in the justice system.

This evidence briefing focusses on the existing culture(s) within the Scottish justice system and how women can be affected by stigmatisation and sexism through contact with it. This theme, along with others covered by the Panel, has been identified from the responses to the Call for Evidence (CfE) on women's experience of the justice system in Scotland.

The briefing summarises written evidence given in these responses, as well as a limited amount of wider research relating to the themes discussed. However, the brief is not an evidence review and is not a comprehensive summary of the research area. There are clear overlaps between this theme and others within the work programme of the Panel, particularly those focussing on the boundaries between victims and offenders, and the gap between justice policy and practice. The briefing will therefore not deal with evidence on these topics where it can be addressed more appropriately elsewhere.

The brief covers five main areas:

• The impact of judicial processes for women in contact with the justice system;
• Issues with communication from official and delays in the system;
• The impact of gender stereotypes and 'rape myths';
• Re-traumatisation through contact with the justice system; and
• Attrition of cases in the Scottish justice system and a loss of confidence in it amongst victims.

The impact of judicial processes

Summary

• Responses to the Call for Evidence ( CfE) highlight how women entering the justice system report feeling that communication can be inadequate, leaving them facing practical difficulties as well as feeling unsupported.
• Delays in scheduling court dates have proven traumatic for some women, especially victims of sexual crimes, with the COVID-19 pandemic exacerbating these problems.

Responses to the CfE acknowledge that law and justice, and the experience of contact with these systems, is gendered, meaning that they are experienced differently by men and women. Such differences are particularly stark when looking at sexual crimes, where women are disproportionately the victims and men the perpetrators. The responses contend that this gendered dimension to many crimes makes things like delays and communication problems particularly difficult for women.

• In regard to the trial process, delays, inadequate communication from officials and a fear of having their personal lives examined in court were mentioned by respondents as particularly difficult for victims^{[90], [91]}. Women complainers in rape trials are found to be especially vulnerable to these problems, research suggests. In particular, victims experience a loss of agency through being seen as 'a piece of evidence' within the trial process, and being silenced by its adversarial nature^[92].
• One of the most frequently cited issues in the CfE responses is the lack of communication from officials encountered by women in both the criminal and civil justice systems. CfE responses highlight how complainers of rape in particular have limited involvement in, and understanding of, trials proceedings, with many being unaware of the specifics of charges brought against the accused^[93]. Additionally, insufficient information regarding case progression, trial dates and changes to court locations were reported^[94]. This problem extends to after the trial has taken place, according to respondents to the CfE. Complainers report feeling abandoned post-trial^[95]; often, they are not informed directly by the court about why particular decisions have been made, e.g., why a Non-Harassment Order has or has not been granted^[96]. Respondents emphasise that in domestic abuse cases, communication is particularly vital, given that the outcome of decisions such as bail reviews can increase the risk of further victimisation.^[97]
• Respondents also reported cases of good communication. In domestic abuse cases, victims described instances of good engagement with the Procurators Fiscal who would consult advocacy services, although respondents also stated that this practice was at times inconsistent, with advocacy services not being available to all^[98]. Similarly, Brooks-Hay et al.'s (2019) qualitative research with victims of rape and serious sexual assault points to the positive impact that efforts to reach out can have^[99]:

  Nat: "…[the police officer] did a really nice thing, that was quite transformative […] every single day for ten days she phoned […] there wasn’t actually anything going on, but she just kept phoning, every day, for two minutes, she was like, just to see how you are, are you alright, and it was very strengthening" (Nat’ in Brooks-Hay et al. (2019))

• Delays were also frequently highlighted by CfE respondents as contributing to a lack of confidence in the justice system and a source of anxiety for victims. The impact of delays were felt particularly by victims when coupled with other challenges, such as confusion about the relationship between criminal justice processes and child contact cases, or the requirement for evidential corroboration^{[100], [101]}.
• The COVID-19 pandemic response also resulted in new problems with the increasing pressures on courts and systems, leading to further breakdowns in communication between officials and victims, which in some cases meant that women were having to use the same entrances to courts as their accused abusers^[102].
• Some advocacy services were also unable to attend court owing to restrictions during the pandemic^[103], which is likely to have had a marked impact on women of colour in particular^[104]. Women of colour are more likely to access support from services led by and for women from minority ethnic groups, and to feel safer speaking about their experiences within them^[105].

Stereotypes and 'rape myths'

Summary

• Gender-based stereotypes and assumptions about victims’ behaviour at different stages of the justice system can have a damaging impact, particularly on victims of gender-based violence.
• Women in contact with the justice system often report feeling that their experience is not understood. Trauma-informed approaches, both in Scotland and internationally, can have a positive effect in this regard.
• CfE respondents suggest that ‘rape myths’ may be particularly harmful in the Scottish justice system, with mock jury studies finding these to be pervasive.
• Respondents highlight the opportunity for change in the recommendations of the review chaired by Lady Dorrian, including a pilot of judge-only trials for rape cases and a new specialist sexual offences court.

In its recent independent report^[106], the Working Group on Misogyny and Criminal Justice describe how many women who bring complaints of rape to court are being failed by the system. That failure is described as being "due to the misogynistic attitudes which permeate policing, prosecuting and trial systems, which sustain myths and stereotypes about women, and inform decision-making at every level". This analysis also applies to women in the justice system more broadly, respondents contend, and highlights the need for a better understanding of trauma amongst actors at all levels.

• Some victims report feeling a lack of empathy from police when they seek support, and feel that they are not taken seriously by officers^[107]. International evidence highlighted in responses to the CfE shows the positive impact that a trauma-informed approach that focusses on the needs of the victim can have:

  International example: Argentina's women's police stations:

  One in five police stations in the Buenos Aires province of Argentina, 128 overall, are Comiseria de la Mujer – women’s police stations aimed at tackling gender-based violence (GBV). These are stations that do not hold cells, but give women access to contact with social workers, lawyers, psychologists and police. The first police stations of this kind were introduced in Brazil in 1985, with variations of the model now found across South America as well as elsewhere in the Global South.

  The world’s first study of how Argentina’s women’s police stations work to prevent GBVⁱ found that the model increases access to justice, empowers women and prevents gender violence by challenging the patriarchal norms that sustain it. The authors state that the model overcomes some of the systemic problems faced when dealing with GBV, including the masculine and militaristic culture of frontline policing.

  Women’s police stations work with victims to prevent escalation in high-risk cases, using a multi-disciplinary team to make targeted interventions, taking GBV outside of the private sphere and normalising seeking assistance. The multi-disciplinary nature of the model, as well as coordinated work with other municipal and provincial agencies, means that information and resources can be shared and used more effectively. In addition, the stations run large-scale community engagement, tackling gender norms in the community that can perpetuate GBV. Evidence from Brazil shows correlations between the presence of women’s police stations and a decrease in female homicide at a regional level, Carrington et al. (2020) note, although more research is needed.

  Women have reportedly found these stations more welcoming spaces than regular police stations, with dedicated children’s spaces making them more inclusive for those with childcare responsibilities. The study also highlights how this model gives victims agency by prioritising their wishes over a default criminal justice response. This is one of the ways in which the model aims to build trust, likely contributing to the very positive perceptions of it in the community.

  ⁱ Carrington, K. et al. (2020) How Women’s Police Stations Empower Women, Widen Access to Justice and Prevent Gender Violence, International Journal or Crime, Justice and Social Democracy, 9(1), pp.42-67

• Women accused of murdering their partner following domestic abuse face challenges due to a lack of understanding of domestic abuse amongst legal professionals, all-male legal teams, and additional evidential expectations. Women report having to 'prove' that domestic abuse has taken place, whilst simultaneously being limited in what evidence can be led at trial due to character evidence restrictions^[108].
• Responses to the CfE highlight how it is vital that women's lived experience is understood in the justice system. In rape trials, such awareness could mean a better understanding of the reasons a person might submit to sex under pressure^[109] and an understanding of how information given to the courts can pose a risk to victims of domestic abuse if mishandled^[110]. Civil court processes are argued to be especially problematic for victims of domestic abuse, who describe being marginalised in child contact cases^[111]. For example, women report being advised by solicitors against mentioning domestic abuse in case it be seen as an attempt to manipulate the process^[112]. Whitecross (2017)^[113] suggests that such advice can undermine confidence in domestic abuse being treated seriously as a crime, as well as confidence in the legislative provisions that require abuse to be considered in civil decision-making.
• Respondents note that there is very little diversity in terms of the demographic make-up and backgrounds of judges in the Scottish judiciary and in senior levels of legal practice, despite the majority of law students^[114] and two thirds of new entrants to the legal profession being women^[115]. This is mirrored in other areas such as the police and the prison service^[116]. However, respondents also note that more women as actors in the justice system would not necessarily equate to system change, as there are structural and cultural issues that are embedded within it^{[117], [118]}.
• Victims of crimes such as domestic abuse, rape and sexual assault often describe feeling humiliated and frightened when having cases heard in court, but also that they feel a loss of control and dignity^[119]. Research undertaken with survivors of rape and sexual assault highlights this:

  Pippa: "…when I say you've been raped before, it feels the exact same way when you're sitting in that courtroom, you have nothing, like you literally are stripped bare of everything and you don't have any control over it. You have not had any say in this, all you have told them is like your story and they just go and they do what they want with it." (Pippa' in Brooks-Hay et al. (2019))

• These feelings are reportedly intensified by judicial proceedings, where 'rape myths' (assumptions regarding expected reactions to unwanted sexual contact) and gender-based stereotypes are used to blame victims and cast doubt on their character^[120]. One of the elements of the justice system particularly open to this is in jury decision-making. The appropriateness of juries in sexual crime trials has been the subject of debate in recent years, with pre-trial education or screening for belief in 'rape myths' being examples of suggested measures to mitigate the risk of stereotypes influencing decisions^[121].
• The deliberative process of jury decision-making, however, remains opaque^[122]. Results from mock jury studies show that assumptions about gender roles, as well as the reactions expected from victims during and after an alleged sexual fassault, can affect the outcome of decisions, particularly when combined with confusion or misinterpretation regarding the requirements of corroboration or the not proven verdict^[123].
• The largest mock jury study undertaken in the UK was funded by the Scottish Government and involved 64 mock juries, with 863 individual participants^[124]. This study found that 'rape myths' were prevalent and that many participants believed that 'real' rape victims would have extensive injuries, that they would have called for help or fought back, and that false accusations of rape are common and difficult to refute^[125]. There is a concern that this belief in socio-sexual norms undermines recent legislative reforms^[126].
• However, population-wide education campaigns aimed at debunking or challenging 'rape myths' are suggested as potentially effective, with Rape Crisis Scotland's "I Just Froze"^[127] campaign having been seen to influence discussion and provide an evidential base upon which to challenge problematic attitudes in the aforementioned mock jury study^[128].
• Respondents also highlight the recommendations of the review group chaired by Lady Dorrian, which was principally tasked with improving the experience of complainers in sexual offence cases. The review's report^[129] was published in March 2021 and gives a series of recommendations, including a pilot of judge-only trials in rape cases. The pilot would seek to ascertain the effectiveness of this model and how it is perceived by complainers, the accused and by lawyers, in light of divided opinion within the review group on this matter.
• Additionally, the review recommends the creation of a new specialist sexual offences court. In contrast to specialised domestic abuse courts, of which there are several kinds across Scotland, these would not sit within existing levels of court but would have a bespoke jurisdiction and sentencing powers. The review proposed a court where all of those involved in its operation are specially trained for sexual assault cases, enabling a trauma-informed approach^[130]. Working groups have been set up by Scottish Government in relation to the recommendations of the review group and work is ongoing to assess evidence and feasibility for the Scottish context.

Surveillance and judgement

Summary

• Young women can face additional surveillance and risk being criminalised through contact with justice services, particularly those from ethnic minority groups.
• Respondents note that women can often face social stigma within their communities on release from prison, suggesting that community-based alternatives would help avoid this.

Responses from the CfE highlight how women, especially young women and those from working class or ethnic minority backgrounds, can often experience more surveillance and judgement, which can impact upon any contact with the criminal justice system^[131].

• Young women are more likely to enter secure care than young men, accounting for almost half of young people in secure care^[132], possibly due to being seen as more at risk or in need of protection^[133].
• Research has suggested that contact with the justice system through secure care can also criminalise young women where they may never have offended or posed a risk to others, as welfare needs, and the effects of structural disadvantage can be reframed as risks for offending^{[134], [135]}. It is suggested that minor incidents involving these young women would be more effectively dealt with within the welfare system^[136].
• Community-based approaches are also highlighted as alternatives for young women and for women in the justice system more generally. It is suggested that this may help mitigate the social stigma that those released from prison can face within their community^[137].
• Asian and Muslim women often experience this stigma much more acutely^[138]. Additionally, while in prison, women from ethnic minority groups feel less safe and face discrimination from other inmates and from staff, and have poorer access to mental health support^[139].

Re-traumatisation from contact with the justice system

Summary

• Responses to the CfE note that initial contact with the police and the evidence gathering process can have the effect of re-traumatising victims of sexual crimes.
• Delays and lengthy court processes can mean a loss of agency for victims and cause problems in their day-to-day lives.
• A lack of empathy from court officials alongside demanding requirements in court can be traumatic for women and take years to recover from.

Respondents to the CfE argued that many of the problems facing women in the justice system result from a lack of understanding about women's experiences and that this lack of understanding can increase the likelihood of re-traumatisation for victim-survivors^[140]. It is noted that the UN Declaration on the Elimination of Violence against Women requires States to ensure that: "…the re-victimization of women does not occur because of laws insensitive to gender considerations, enforcement practices or other interventions"^[141]. Respondents state that, despite this, recent research has highlighted that 'secondary victimisation' continues to be a factor in various areas of the Scottish justice system^[142].

• The first of these areas is in initial contact with the police when reporting a crime. Aspects of this contact that victims find difficult include the removal of personal belongings, the uncomfortable physical environment of police stations, and being processed by male police officers^{[143], [144]}. Additionally, the statement process can be particularly traumatic for victims in sexual assault cases, as seen in research by Brooks-Hay et al (2019)^[145]:

  Eleanor: "…The statement in total was 55 pages and then having to hear it being read back to you […] it was brutal […] afterwards I was a complete wreck. I was really quite unwell, sort of shaking and just feeling sick. The first time I’d been speaking to [the SOLO] I realised at the end of the day that I was over, like this, my body had just very slowly caved in." (Eleanor' in Brooks-Hay et al. (2019))

• In the criminal justice system, lengthy processes and waiting for court dates impacts upon the ability of those affected to function at school, work, or as a parent^[146]. It is argued that this can also be a traumatic experience, with the feeling of a loss of agency inducing further anxiety about the trial process^[147].
• Research has found that complainers find interacting with court officials particularly challenging in these circumstances, reporting a lack of empathy in the court room^[148]. Secondary victimisation can also occur when giving evidence at the investigation stage, as well as in court^[149], while it is argued that post-trial support is often lacking^[150]. There is also increasing demand for digital evidence in trials, which is argued to be an area where the risk for secondary victimisation is growing as it is used to question complainers' credibility^[151].
• Qualitative research highlights how the impact that trauma experienced through contact with the justice system can take years to recover from^[152]:

  Beth: …It was three years of re-traumatisation […] I felt stuck for so many years because everything kept going wrong […] they promised that they would keep me informed every step of the way, I remember the words […] and they didn’t. Once you’d reported it, that was it. And that was for years. (‘Beth' in Brooks-Hay et al. (2019))

• Long-term trauma is often also felt by those who have been arrested by police and released without charge, particularly for violent offences committed by women in the context of domestic abuse^[153]. As well as potentially impacting future agency decisions relating to things like housing and child custody, confidence in the police can be undermined in these circumstances, and future reporting can be made less likely^[154].

Attrition and loss of confidence in the system

Summary

• Attrition (where cases are lost throughout the justice system) in the Scottish justice system is markedly high for sexual violence and can lead to a loss of trust in the system amongst women.
• Aspects of the justice system unique to Scotland, such as the not proven verdict and corroboration requirement, are suggested by respondents as contributing to attrition rates and a loss of confidence in the justice system.

Respondents to the CfE noted that the Scottish Government has made concerted efforts in recent years to improve the position of women who experience the justice system as victims, for example in terms of privacy rights of rape complainers^[155]. However, attrition rates (where cases are lost throughout the justice system) in Scotland, as in the rest of the UK, remain high for such cases, and result in distrust of the Scottish justice system amongst complainants^[156].

• It is well established that sexual violence is significantly under-reported in Scotland and internationally, with few cases making it to trial and even fewer ending in a conviction; attrition which is particularly pronounced in the case of rape and attempted rape^[157]. Whilst the effects of cross-examination and gender stereotyping in court have been discussed above, other aspects of the Scottish justice system have been identified over the years as potentially contributing to this attrition, including the not proven verdict and the corroboration requirement^[158]. Research has found that the not proven verdict may elicit a particularly negative impact for rape complainers and their confidence in the justice system, not least due to the confusion around its definition and deployment^[159].
• Rape or attempted rape cases have a markedly higher rate of acquittals by both the not proven and not guilty verdicts than for other crimes or offences, with 25% of those accused in rape or attempted rape cases being acquitted compared to one per cent for all others (or five per cent if summary cases are excluded)^[160]. Due to this fact, and that women comprise the vast majority of complainers in rape cases, responses to the CfE highlight how the debate around the not proven verdict therefore has a clearly gendered dimension^[161]. A recent consultation into the not proven verdict and other reforms closed on 11 March 2022, with an analysis of the responses published in July 2022^[162].
• Research on the civil justice system has also found that women can lose confidence in the system. In child contact cases, for example, women report being advised by solicitors against mentioning domestic abuse in case it be seen as an attempt to manipulate the process^[163]. It is suggested that such advice undermines confidence in domestic abuse being treated seriously as a crime as well as confidence in legislative provisions requiring abuse to be considered in civil decision-making^[164].

Women in the Justice System: Victimisation and Offender Status Briefing

This evidence briefing focusses on the 'victim' and 'offender' status of women in the Scottish justice system. It explores how these statuses often overlap, what this overlap may mean for individuals, and how the justice system could respond more effectively to the needs of women offenders with experience of victimisation.

This theme, along with others covered by the Panel, has been identified from the responses to the Call for Evidence (CfE) on women's experience of the justice system in Scotland. The briefing summarises written evidence given in these responses, as well as a limited amount of wider research relating to the themes discussed. However, the brief is not an evidence review and is not a comprehensive summary of the research area.

The briefing focusses on five themes that emerged from the CfE response:

• The experience of women offenders in Scotland.
• Victims of abuse.
• The impact of past trauma.
• Community-based responses to offending.
• Impact on families.

Summary

The experience of women offenders in Scotland

• Women offenders are more likely to have committed less serious offences, to have primary childcare responsibilities, and to have experienced victimisation.
• Women in the Scottish justice system are likely to have complex needs, particularly around poor mental health and histories of abuse.
• Understanding the overlap between 'victim' and 'offender' is important for addressing the needs of women in the justice system effectively.

Victims of abuse

• Women who are victims of abuse can face criminalisation by reporting it, such as those with mental health problems or those who sell or exchange sex.
• Women's offending is often linked to histories of abuse, but disclosure may often be late in the justice process, with women from ethnic minorities facing particular barriers to reporting abuse.
• There is often a lack of understanding in the legal profession and justice process around the nature of abuse and how it can affect behaviour.
• This is particularly the case for women convicted of killing men, who have often suffered abuse from the deceased, but face additional barriers such as greater evidential expectations and character evidence restrictions.

The impact of past trauma

• Women with poor mental health and/or a history of suffering abuse are at risk of re-traumatisation through being in the justice system as offenders.
• Poor mental health is particularly prevalent in the women's prison system, while elements of the prison environment, and being housed alongside other women with mental health problems, can trigger trauma for offenders.
• There is a high prevalence of serious brain injury amongst women in Scottish prisons, often as a result of domestic abuse. This can be associated with violent offending.
• Young women constitute a disproportionate number of those in secure care when compared to the overall prison population, while they have a high rate of poor mental health and past sexual abuse.

Community-based responses to offending

• Campaigns aiming to divert women away from custody have highlighted how community-based responses can better address the multiple and complex needs of women in the justice system.
• Responses to the CfE note that community responses can address the underlying issues, such as drug addiction and mental health problems, that are behind many women's repeat offending.
• Examples of community-based programmes and problem-solving courts taking holistic approaches, dealing with relationship issues, mental health problems and substance abuse, were highlighted by CfE respondents.

Impact on families

• For women in custody, restrictions on contact such as those seen during the COVID-19 pandemic, or from large distances between prisoners and their families, can be a significant source of isolation and emotional pain.
• The children of women in custody can face 'secondary prisonisation' and stigma by having a mother in prison. They are also more likely to experience physical and mental health problems and end up in prison later in life.

The experience of women offenders in Scotland

Summary

• Women offenders are more likely to have committed less serious offences, to have primary childcare responsibilities, and to have experienced victimisation.
• Women in the Scottish justice system are likely to have complex needs, particularly around poor mental health and histories of abuse.
• Understanding the overlap between 'victim' and 'offender' is important for addressing the needs of women in the justice system effectively.

The needs of women offenders are distinct from those of male offenders, according to responses to the CfE and wider research^{[165], [166], [167]}. This is due to women who come before the justice process being more likely to have committed less serious offences, to have primary childcare responsibilities, and to have experienced victimisation^[168]. The Commission on Women Offenders^[169] found that many women in the criminal justice system in Scotland were frequent reoffenders who had complex needs, relating to their social circumstances, previous histories of abuse, and mental health and addiction problems.

Research from the New Economics Foundation (2012)^[170] found that the needs of most women offenders in fact make them more similar to the broader population of women who have experienced abuse or trauma and therefore require an approach that takes account of this. It is because of this context that responses to the CfE suggest that the separation of women in the justice system into 'victims' and 'offenders' misrepresents the experience and needs of those women^[171].

By ignoring the vulnerabilities that place those arrested for petty theft, selling sex and drug offences, in particular, into the category of victim, offenders may be at risk of re-traumatisation in the justice system and issues relating to mental health, past trauma and relationship problems may go unaddressed^[172]. As will be discussed further on, this also applies to more serious cases, such as manslaughter and homicide in cases where there is a history of domestic abuse. Taking these categories as wholly separate may also serve to ignore issues in relation to prison conditions, separation of mothers from children during imprisonment, and diversion and community penalties^[173].

Victims of abuse

Summary

• Women who are victims of abuse can face criminalisation by reporting it, such as those with mental health problems or those who sell or exchange sex.
• Women's offending is often linked to histories of abuse, but disclosure may often be late in the justice process, with women from ethnic minorities facing particular barriers to reporting abuse.
• There is often a lack of understanding in the legal profession and justice process around the nature of abuse and how it can affect behaviour.
• This is particularly the case for women convicted of killing men, who have often suffered abuse from the deceased, but face additional barriers such as greater evidential expectations and character evidence restrictions.

The Centre for Women's Justice (CWJ)^[174] argues that various stages of the criminal justice system treat victims as offenders, whether this be the arrest of victims when police are called out to domestic incidents, or when women with mental health problems reporting violence or abuse are not believed and are prosecuted for wasting police time. While the work of the CWJ predominantly focusses on England and Wales, responses to the CfE explain that the situation in Scotland is similar^[175]. The CWJ note that women from ethnic minorities may also face additional discrimination, due to racism and unconscious bias^[176], while other intersecting issues including socio-economic status and disability create additional barriers to reporting^[177].

Women who sell or exchange sex can also face criminalisation when reporting abuse, recent work for the Scottish Government found^[178]. Women involved in prostitution stated that they felt unable to disclose rape or sexual assault to police, but also to health services and victim support, for fear of the police being informed and the women arrested^[179].

CfE respondents contend that there is now an understanding that women's offending or alleged offending is often a result of their experience of domestic abuse or other gendered violence. However, the dynamics of this are often not understood in practice in the justice system^[180]. For example, research by the CWJ found that the late disclosure of abuse was common amongst women offenders, particularly in cases of coercive control, and that barriers to disclosure may be exacerbated for women from ethnic minorities where cultural factors surrounding the gender roles add greater complexity^[181].

A gender- and trauma-informed approach to women's offending is necessary to improve women's outcomes, CfE respondents suggest^[182]. For example, it is suggested that understanding the dynamics of coercive control, and why, for example, a woman may feel forced to commit crimes, such as handling stolen goods, or use a weapon to resist anticipated violence, can be critical^[183]. Evidence also highlights how women offenders may be subject to increased 'responsibilisation' through being judged against different normative standards^[184]; women can be held to a greater degree of responsibility for offences than men, with their needs and experiences not sufficiently taken into account throughout the justice process.

It is noted in the response to the CfE that a lack of understanding of domestic abuse amongst the legal profession can have a particularly negative impact on women who kill their abusers^[185]. Additionally, greater evidential expectations, character evidence restrictions and all male legal teams present further barriers^[186]. A potential lack of understanding around domestic abuse exists outside of Scotland as well, research shows, with nearly 80 per cent of women who kill men in England and Wales having suffered violence and abuse from the deceased, but most receiving extremely lengthy prison sentences^[187].

The needs of those women serving longer sentences, such as those described above, should not be overlooked in campaigns to reduce the number of women in prison, it is argued, as these campaigns often focus on less serious crimes; the experiences of these offenders are often not understood due to their lack of visibility in policy and advocacy debates^[188]. Evidence from the Prison Reform Trust's (2021)^[189] research on women in long-term custody, for example, found that many report being hesitant to speak to staff for access to mental health interventions as they are concerned that it may be held against them later.

The impact of past trauma

Summary

• Women with poor mental health and/or a history of suffering abuse are at risk of re-traumatisation through being in the justice system as offenders.
• Poor mental health is particularly prevalent in the women's prison system, while elements of the prison environment, and being housed alongside other women with mental health problems, can trigger trauma for offenders.
• There is a high prevalence of serious brain injury amongst women in Scottish prisons, often as a result of domestic abuse. This can be associated with violent offending.
• Young women constitute a disproportionate number of those in secure care when compared to the overall prison population, while they have a high rate of poor mental health and past sexual abuse.

Understanding the role of offenders' past victimisation is critical for avoiding re-traumatisation, responses to the CfE suggest. Women who are victims of domestic abuse being arrested and later released without charge is one of the areas that CfE responses highlight in this regard. The All Party Parliamentary Group on Women in the Penal System Briefing Paper (3)^[190] estimated that, in England and Wales, there are around 37,000 arrests of women each year that resulted in no further action, and it is suggested that it is likely that this would be similar in Scotland^[191]. CfE responses point to how this can be traumatic in the short- and long-term and may have far-reaching implications on victims' child custody or housing situations^[192].

It is the issue of mental health that is most commonly highlighted on this theme in response to the CfE. Not only can mental health have a role in the criminalisation of women, as mentioned above, but it can seriously impact the experience of subsequent custody for women with poor mental health^[193]. It is noted that the UN CPT (European Committee for the Prevention of Torture) highlighted significant concerns about women with serious mental health concerns in Scottish prisons but that robust data in this area is lacking^[194]. In England and Wales, 71 per cent of women in prison reported a mental health problem, compared to 47 per cent of men, while women comprised 19 per cent of self-harm incidents in prison despite accounting for five per cent of the overall prison population^[195].

Related to the above is the high prevalence of significant head injury (SHI) amongst women in prison in Scotland. In a study by McMillan et al (2021) covering four prisons in Scotland, 78 per cent of women were found to have had experienced an SHI, 40 per cent of whom had an associated disability^[196]. Additionally, 84 per cent of those who reported having an SHI had experienced repeated head injuries, predominantly resulting from domestic abuse (89 per cent of cases). A history of head injury in offenders can be associated with a greater risk of violent crime, and well as poorer mental health and drug problems^[197]; those women with a history of SHI were significantly more likely to have a history of violent offences than those without history of SHI, McMillian et al found^[198].

Being in custody alongside other women who have histories of trauma can also present a significant risk of re-traumatisation, as they can be regularly exposed to the self-harm and mental health crises of others^[199]. In addition, the lack of privacy, harsh lighting, strip searches and other unwanted physical contact are among aspects of the prison environment that can be triggering for those with histories of trauma^[200], while research suggests that women are more likely than men to continue experiencing the trauma-related effects of prison after release^[201]. In addition to data on mental health in Scottish prisons, responses to the CfE argue that there should be more research on the experiences of LGBTQ+ people in custody, particularly focussing on transgender women and non-binary people^[202].

Young women also make up 46 per cent of the total of young people in secure care^[203] and show high levels of poor mental health^[204]. Responses to the CfE highlight the fact that women in secure care often have histories of extensive and varied traumas, with sexual abuse having been experienced by 65 per cent of women compared with 23 per cent of men^[205]. As in the case of women offenders in prison, the impacts of the experience of secure care can be long-lasting, significantly altering young people's childhoods and impacting on developmental transitions^[206].

Community-based responses to offending

Summary

• Campaigns aiming to divert women away from custody have highlighted how community-based responses can better address the multiple and complex needs of women in the justice system.
• Responses to the CfE note that community responses can address the underlying issues, such as drug addiction and mental health problems, that are behind many women's repeat offending.
• Examples of community-based programmes and problem-solving courts taking holistic approaches, dealing with relationship issues, mental health problems and substance abuse, were highlighted by CfE respondents.

While the number of women who come into contact with the justice system is much smaller than for men, Scotland has one of the highest rates of imprisonment for women in Western Europe^[207], although it has been noted that there are efforts to tackle this, particularly since the publication of the findings of the Angiolini Commission in 2012^[208]. The focus of campaigns to divert women away from custody highlight how community responses can better address multiple and complex needs of women in the justice system, including those surrounding housing, employment and mental health^[209].

In particular, campaigns have highlighted the harmfulness of imprisonment in relation to the relatively non-serious nature of most women's offending and the fact that most women receive sentences of less than 12 months^[210]. The Commission on Women Offenders also argued that short-term prison sentences had little or no impact on re-offending, while prison is substantially more expensive than community disposals^[211]. Responses to the CfE note that community responses can address the underlying issues, such as drug addiction and mental health problems, that are behind many women's repeat, low-level offending^[212].

CfE respondents argue that a shift towards social justice is needed, rather than criminal justice and its focus on incarceration, to enable services to deal with social distress and economic destitution^[213]. They state that making prisons more 'gender-responsive' is not the answer, but that strengthening local communities and enabling them to support offenders should be prioritised as a means by which to meet women's needs more effectively^[214]. Research from Crowley, Vogel and Schliehe (2021)^[215] outlines how the influences and structures around the lives of young women outside of custody settings, particularly around housing, employment and relationships, has a far greater impact on desistence than do those programmes conducted in custody and focussed on the individual.

Women's community services have been found to facilitate positive change by improving well-being. A 2012 study by the New Economics Foundation^[216] found that over a three-month period, 44 per cent of women involved in these programmes demonstrated a measurable increase in well-being. The greatest increase in well-being was in the area of autonomy, as well as supportive relationships, optimism, and a sense of meaning and purpose. The report notes that facilitating long-term outcomes will also reduce need for a range of state services.

Similarly, the evaluation of Up-2-Us' 'Time for Change' project by Burman and Imlah (2012)^[217] showed the importance of inter-personal relationships in achieving long-term goals for young women offenders. This took a relationship-based approach to support, assisting young women to resolve current or past conflicts or trauma and familial difficulties and emotional issues associated with their offending behaviours. Positive change was evident for many involved in the programme, including:

• increases in help-seeking behaviour in relation to substance abuse;
• a growing ability to identify/avoid risky situations likely to lead to arrest; and
• progress in repairing family relationships.

Programmes such as these that specifically cater to women's experiences and needs are particularly important given what has been described as the historical tendency to develop responses to offending around men^[218]. This has in part been due to men's larger numbers in the criminal justice system and their higher risk profiles^[219], which are argued to present significant barriers to women offenders as risk assessments are designed around men's offending behaviour^[220]. Research implies that this may be particularly concerning given that risk assessment instruments can already disadvantage minority groups and young people^[221].

Additionally, CfE responses point to the whole-system approach taken in Great Manchester since 2014, including the use of a problem-solving court^[222]. This has seen a 60 per cent reduction in the use of immediate prison sentences for women. Problem-solving courts also exist in other parts of the world, as seen in the following example from Canada:

International example: Dartmouth Wellness Court (Canada)

Wellness Courts in Nova Scotia, Canada take a holistic approach to the complex factors behind offending. This programme started in 2009 with the Dartmouth Wellness Court and has since spread to other areas of the region. The court operates from the provincial court and includes mental health, drug and alcohol programmes, while speciality courts have also been established for domestic abuse cases^[223].

Rather than a trial court, participants accepted into the programme work with a team of professionals who help address the issues contributing to the individual coming into conflict with the law. The team consists of a Crown attorney, a defence attorney, a probation officer, three mental health clinicians (a social worker, a forensic nurse and an occupational therapist) and an addictions social worker, who monitor progress while holding the participant accountable for their crime^[224].

Participation in the programme requires offenders to accept responsibility for offences they are charged with, allowing the case to be moved out of the traditional system. Qualitative research with practitioners and participants shows positive outcomes from participation in the programme, while the quantitative portion of the evaluation is forthcoming^[225].

Impact on families

Summary

• For women in custody, restrictions on contact such as those seen during the COVID-19 pandemic or from large distances between prisoners and their families, can be a significant source of isolation and emotional pain.
• The children of women in custody can face 'secondary prisonisation' and stigma by having a mother in prison; they are more likely to experience physical and mental health problems and end up in prison later in life.

Women in the criminal justice system as offenders often have a more disjointed family unit that men and one that is more likely to be characterised by trauma^[226]. For this reason, family contact can be complex, with an individualised approach being most suited^[227]. However, restrictions on contact, such as that seen during the COVID-19 pandemic, or large distances between prisoners and their families, can be a significant source of isolation and emotional pain for many^{[228], [229]}.

In addition to women in custody, the children of prisoners themselves can be adversely affected^[230]; approximately 30 per cent of children with imprisoned parents will develop physical and mental health problems and there is a higher risk of these children also ending up in prison^[231]. Research conducted with children whose mothers were imprisoned in England and Wales^[232] found that children can experience 'secondary prisonisation' through changes in home and caregiver and the regulation of the mother and child relationship, as well as stigmatisation by virtue of their relationship with their mother. The authors also found that a child with an imprisoned mother is likely to suffer more negative effects of parental imprisonment than a child with an imprisoned father^[233].

Women in the Justice System: Intersectionality Briefing

This briefing summarises intersectionality and discusses the benefits of taking an intersectional approach when considering the experiences of women in the justice system. The paper explains what intersectionality is and why it is important. It then provides a snapshot on what we know about intersectionality for women who are victims.

What is intersectionality?

The concept of intersectionality is used to articulate and analyse the lived reality of those who experience multiple and compounding inequalities. However, there are many different definitions and applications of the concept within academia and policymaking^[234].

The term has its roots in Black feminist activism, and was originally coined by American critical legal race scholar Kimberlé Williams Crenshaw in 1989. She used it to refer to the double discrimination of racism and sexism faced by Black women.

More recently, the term has expanded and, is now often used to refer to the interactions between the nine protected characteristics defined in the Equality Act 2010^[235], plus wider characteristics that shape lived experiences of discrimination, inequality and privilege, such as socio-economic disadvantage, occupation and care-experience. The Equality and Human Rights Commission^[236] definition applies the concept practically to equality and human rights monitoring:

"Intersectionality is an analytical tool that we use for the purpose of equality and human rights monitoring to show the distinct forms of harm, abuse, discrimination and disadvantage experienced by people when multiple categories of social identity interact with each other."

The Scottish Government evidence synthesis on intersectionality summarises the foundational elements of intersectionality as:

• A recognition that people are shaped by their simultaneous membership of multiple interconnected social categories.
• The interaction between multiple social categories occurs within a context of connected systems and structures of power (e.g., laws, policies, governments). A recognition of inequality of power is key to intersectionality.
• Structural inequalities, reflected as relative disadvantage and privilege, are the outcomes of the interaction between social categories, power relations and contexts.

In particular, it is important to note that it is the interaction or "intersection" of two or more characteristics with power dynamics within a given context that gives rise to inequality, not just the presence of intersecting characteristics on their own.

Intersectionality in policy making – why it is important

We know that people who share a particular protected characteristic, for example women, are not a homogenous group, and that their experiences and outcomes will differ depending on the interaction of other protected characteristics they have and inequalities they experience. Looking at outcomes through the lens of a single protected characteristic provides a partial picture, taking intersectionality into account can provide a fuller picture.

An 'intersectional approach' is a way of identifying, understanding and tackling structural inequality in a given context that accounts for the lived experience of people with intersecting identities. For example, intersectionality helps us to understand how people experience services, such as education, justice and healthcare, differently as a result of their identity and unequal power dynamics. Understanding these differences is important in order to develop effective policies and services that better meet the needs of, and tackle the structural disadvantage experienced by, marginalised groups.

For example, research has found that minority ethnic people are more likely to contract and experience serious outcomes from COVID-19. However, evidence shows that this is not a direct link^[237]. A number of mediating factors were identified, including: poverty; being more likely to work outside their home during national lockdowns, and more likely to work in occupations with a higher risk of exposure to COVID-19, such as health and social care; reduced access to healthcare; and loss of income due to effects of lockdown. It is also important to understand these effects in the historical context, of racism and discrimination experienced by minority ethnic communities, and the impact of stigma on health seeking behaviours.

The Expert Reference Group on COVID-19 and Ethnicity (ERG)^[238] recommendations highlighted that "vulnerabilities to COVID-19 are consistent with an established pattern in which 'intersections between socioeconomic status, ethnicity and racism intensify inequalities in health for ethnic groups".

Intersection and analysis

Intersectionality can be used in both qualitative and quantitative research. In an intersectional approach, researchers focus on addressing the power imbalance in research and ensuring marginalised groups are included as equals in the research process. Researchers also need to practice reflexivity (asking themselves questions about their own social positions, values, assumptions etc). In quantitative research, often, a sampling approach which is designed to be representative of a whole population may lead to problems with low sample size for smaller groups in the population or among those who may be more reluctant to take part in research.

Spotlight on intersectionality for women who are victims

Key findings:

Scottish Crime and Justice Survey (SCJS) data is published for the intersection of gender and age, but not other intersections

SCJS data shows that younger women are more likely to have experienced crime than older women.

Younger women are more likely than older women to have experienced partner abuse and sexual assault.

Small scale qualitative research projects have explored the experiences of women from South Asian communities and those with no recourse to public funds (NRPF) who experience domestic abuse, and how this differs from a standard conceptualisation of domestic abuse, due to a range of intersecting factors.

Small scale qualitative research with women with learning disabilities found high levels of experiences of gender-based violence, which were so commonplace and normal for the women that they did not see it as something to be reported. Those who did try to report their experiences said they were not believed.

In general, females are less likely than males to experience all forms of hate crime, around a third of all hate crime has a female or all female group of victims. The exceptions to this are disability aggravated hate crime, where almost half of victims identify as female and transgender aggravated hate crime, where just over half of victims identify as female.

The available evidence on the experiences of women with other protected characteristics in the justice system points to how experiences differ between groups of women. There is less evidence however, on women with multiple intersections and how their experiences may differ again.

Experiences of crime, sexual assault and age

The Scottish Crime and Justice Survey (SCJS) provides results at a population level as well as by a number of demographic and geographic characteristics. The intersection of gender and age is the only intersectional analysis reported in the SCJS.

In 2019-20, SCJS data shows that younger women (16-24) were significantly more likely to be victims of crime (20.7%) than women aged 45-59 or women aged 60+ (11.6% and 6.2%) respectively.

SCJS^[239] data shows that in 2018-20, women aged 16 to 24 were more likely than any other age group of women to have experienced partner abuse within the 12 months prior to interview (10.2%).

Similarly, in 2018-20, the SCJS found 8.1% of females age 16-24, and 8.1% of females age 25-44, had experienced a serious sexual assault^[240] since the age of 16, which is significantly more than for females age 60 + (3.4%). In the last 12 months 2.5% of young females age 16-24 experienced a serious sexual assault, which is a significantly higher proportion than for women of older ages.

The SCJS further found that the proportion of females in the youngest age group, 16-24, who had experienced less serious sexual assault^[241] since the age of 16 was significantly higher (22.6%) than for women age 60+ (9.8%). In the last 12 months, 11.2% of females age 16-24 experienced less serious sexual assault, which is significantly higher than for women in all other age groups (2.6% for females age 25-44, 1.2% for females age 45-59 and 0.1% for females age 60+).

Domestic abuse and ethnicity

Qualitative research exploring the experiences of domestic abuse for women of South Asian ethnicity, and those who have insecure immigration status acknowledges the intersection of multiple factors such as race, ethnicity, immigration status, religion, socio-economic status, and cultural systems and practices, in shaping women's experiences of domestic abuse.

South Asian women may be subjected to similar forms of abuse experienced in other population groups, but it has been shown that the ways in which they perceive, and experience domestic abuse is unique to their cultures and communities^{[242], [243]}. This includes suffering abuse for longer periods prior to seeking help, a general reluctance to access services, and a fear that seeking help may subject them to racist treatment^[244].

Domestic abuse is under-reported within South Asian communities^[245]. A number of barriers to help-seeking behaviours have been identified for South Asian Woman experiencing domestic abuse, including: a lack of awareness of services, lack of English proficiency, structural barriers and economics^[246].

South Asian women's experiences of the police can be highly variable. In some cases, it can be sensitive to women's needs, and in others, the police response can reflect a failure to understand the complex issues which shape women's experiences of abuse and disclosure^[247]. A research project exploring the interaction of police officers with South Asian women who contacted them as a consequence of domestic abuse found that the majority of the women were unaware of what support they could obtain from the police whilst living within an abusive relationship. However, the women experienced increased confidence after contacting the police and they provided messages of support for women in similar situations^[248].

Researchers have argued that South Asian women can face "family abuse" at the hands of wider family, including their mother-in-law, and that such experiences do not fit within narrower definitions of domestic abuse and "intimate partnerships", thus rendering such experiences invisible^{[249], [250]}.

Some women experiencing domestic abuse have no recourse to public funds due to their immigration status, for example if they are an asylum seeker or entered the UK on a spousal visa. This means they don't have access to publicly funded services and therefore constrains their ability to flee an abusive spouse as public money covers the cost of many Women's Aid refuge places^[251]. Immigration policies and insecure immigration status can intensify and create specific forms of abuse^[252], including, for example, having their passports removed by their husbands^[253].

Gender Based Violence and Disability

A study "Our Bodies, Our Rights"^[254], focused on disabled women's reproductive rights in Scotland. Although gender-based violence was not the focus of the research, the scale of gender-based violence and intimate partner violence reported was striking. All of the 12 women with learning disabilities participating in the research reported experiences of intimate partner violence, including physical violence, rape, forced prostitution and gang rape. This was in addition to experience of parental abuse and violent victimisation as children and adults, sexual violence as children, and violence experienced in care settings and residential facilities by staff and residents.

Women with learning disabilities in Our Bodies, Our Rights said that, because violence was so much a part of their lives for as long as they could remember, they considered it to be normal and didn't see it as something to be reported. Where women did report, they said they were not believed and were not put in contact with supportive services or organisations such as Rape Crisis or Women's Aid.

Separately, researchers have further observed that the "links between disability and domestic abuse have been under-examined nationally and internationally, resulting in the marginalisation of disabled women in research, policy and practice"^[255].

Experience of hate crime

A hate crime is any crime which is perceived by the victim or any other person, to be motivated (wholly or partly) by malice and ill-will towards a social group. In Scotland, the law recognises hate crimes as crimes motivated by prejudice based on disability, race, religion, sexual orientation, and transgender identity. Sex, (or gender or misogyny), is not included as a hate a crime aggravator, however women can be victims of hate crime, related to the protected characteristics listed above.

Hate crime is under- reported. Different groups in society might be more or less likely to report being a victim of hate crime. Therefore, hate crime which is reported to the police is not necessarily characteristic of all hate crime experienced in Scotland. Analysing hate crimes reported to the police does not allow us to fully understand the scale of, or women's experiences of hate crime. Research^[256] into police recorded hate crime in 2018/19 estimates that the victims are male, or an all-male group in around two-thirds (63%) of hate crimes, and 32% of victims are female or all female group. Females are less likely than males to be victims of hate crime across all the aggravators, with the exception of disability where victimisation is evenly split across male (50%) and female (49%) victims, and transgender aggravated crime where 55% of victims are female or an all-female group.