Between March and June 2015, the Scottish Government consulted on whether a specific offence of domestic abuse would improve the ability of police and prosecutors to tackle domestic abuse. In September 2015, the First Minister announced that the Scottish Government would publish a draft of a specific offence to deal with those who commit psychological abuse and engage in coercive and controlling behaviour.
This second consultation sought the views of stakeholders on the draft offence that was published with the Consultation Paper. The consultation sought views both on the general principles underlying the approach taken in drafting the offence, and on a number of specific issues including the maximum penalty and the defences available to the offence.
The consultation was published on 22 December 2015 and ran until 1 April 2016. In total 59 consultation responses were received.
Scope and general structure of the offence
The very clear majority of respondents (54 out of the 56 answering the question) were content that any specific offence of domestic or partner abuse should be drawn so as to encompass both conduct, such as threats or physical abuse, which is currently criminal, and psychological abuse and coercive control. There were a number of recurring themes to emerge from respondents' further comments including that it will be important to make clear that the offence of domestic abuse can include psychological abuse and coercive control only and that it does not need to be accompanied by physical abuse for a crime to have been committed. It was also suggested that creating an offence of this kind will send a clear message, on behalf of society, that coercive and controlling behaviour is a form of domestic abuse and that society will not tolerate this type of behaviour.
The second consultation question focused on the general structure of the offence. The draft offence provides that it is a criminal offence for a person to pursue a course of behaviour which is abusive of their partner or ex-partner and which a reasonable person would consider would be likely to cause the victim to suffer physical or psychological harm.
Comments about the concept of 'reasonableness' included that if robustly and consistently applied, the 'reasonable person' test should give victims increased confidence in the process. Avoiding making a judgement as to whether an offence has been committed based on the state of mind of the victim, or on their assessment of the impact which has resulted, was also welcomed.
However, the need to assess the likely impact of the conduct on the victim was raised and cited as one of the problems associated with reliance on an objective test. In contrast, other respondents voiced concerns about the 'reasonable person' test because they saw it as being overly subjective or as possibly requiring too much interpretation. It was suggested that the focus of the offence should be on an objective measure of harm.
Many of the comments on the course of behaviour considered the relationship between a single event and repeated events of abusive behaviour. They included that the approach is consistent with both stalking and anti-social behaviour legislation. However, it was noted that there will be occasions when a one-off event is very serious and in the case of one-off physical abuse incidents might be the pivotal event that will underpin the notion of fear, an essential element in coercive controlling relationships. It was suggested that serious individual offences - such as physical or sexual assault or stalking - can and should be dealt with under other legislation, including with the addition of the domestic abuse aggravator.
Comments about the mental element of the offence tended to focus on either intent or recklessness. On intent, comments included that what the abuser intended should be irrelevant and what matters is the harm that they caused. This was seen as important to ensuring that abusers cannot justify their actions by claiming they were well-intentioned. An alternative perspective was that the intention of the abuser should be considered, including because this will allow behaviour which may otherwise seem innocuous to be taken into account.
Others commented on recklessness and generally saw it as important to ensure that all manifestations of abusive behaviour are covered. It was suggested that perpetrators abuse with a studied intent, and a great deal of thought may have gone into planning their actions. It was suggested that recklessness reflects the perpetrator's indifference to, and lack of responsibility for, the consequences of their actions and the harm they are causing.
Definition of abusive behaviour & relationships to which the offence applies
The consultation paper sets out that the first part of the non-exhaustive definition in the draft offence relating to 'abusive behaviour' provides that this includes behaviour directed at the victim which is "violent, threatening or intimidating". The second part of the definition seeks to include within the offence behaviour within a relationship which is abusive because it is coercive or controlling or amounts to psychological or emotional abuse of a person's partner or ex-partner. The third question asked respondents for comments on the definition of 'abusive behaviour' contained in the draft offence.
Either at this question or elsewhere in their response, a number of respondents made substantive comments about the coverage of children and young people within the draft offence. The overall concern of most of the respondents who raised the coverage of children and young people was that, as the draft offence is currently defined, they are largely invisible and the impact which domestic abuse has on them is not recognised. Many went on to comment on the extent to which domestic abuse impacts on children, both in terms of the sheer numbers of children affected but also in terms of the impact it can have on each individual child.
Although some respondents noted that they were understanding of the rationale behind defining domestic abuse by its impact on the abused partner or ex-partner, there were nevertheless calls for the Scottish Government to do more to recognise the impact of domestic abuse on children and young people, either within the definition or elsewhere in the draft offence. This included there being need for explicit recognition of children as victims of the perpetrator's abusive behaviour. Other comments focused on the definition of abusive behaviour currently set out in the draft offence (at section 2) and included being broadly supportive of the definition proposed. There was some explicit support for there being no prescriptive or exhaustive definition of what will constitute abusive behaviour, although it was suggested that it is important for the offence to clearly take account of violent, threatening and intimidating behaviour as well as coercive control and controlling behaviour.
Although the majority of respondents were broadly supportive of the definition of abusive behaviour contained in the draft offence (not withstanding some of the suggested additions or changes outlined above), a small number of respondents had concerns. These concerns included that embodying a distinction between common couple violence and coercive control in a workable definition of a crime is extremely challenging. It was suggested that further consideration of the 'effects' in section 2(2) will be required if a robust offence that will achieve the aims of both legal certainty and protection from and criminalisation of domestic abuse is to be achieved.
The draft offence is restricted to people who are partners or ex-partners. The very great majority of those who made a clear statement on the issue supported this approach. In support of the proposed approach, it was noted that it is in line with the definition developed by the National Strategy, included in the joint working protocols between Police Scotland and the COPFS, used in the specialist domestic abuse courts and employed in other legislative provisions, such as domestic abuse interdicts.
Proposed defence, the maximum penalty and consideration of alternative offences
The draft offence provides that it is a defence to the offence for a person to show that the course of behaviour was, in the particular circumstances, reasonable. In their comments on this issue, respondents sometimes noted their broad support for the principle that the evidential burden be placed on the accused to provide sufficient evidence to the court to raise an issue as to whether the defence is established. The most frequently expressed concern was that the defence as proposed is open to manipulation by abusers.
The proposed maximum penalty on conviction on indictment is 10 years' imprisonment. The majority of respondents who commented noted their agreement with the proposed maximum penalty, including because it reflects both the seriousness of the offence and the very considerable harm it can do. In other comments, it was suggested that non-harassment orders should be a routine consideration at sentencing and that, where appropriate, perpetrator programmes should be used.
Although the majority of those commenting broadly agreed with the proposal, a small number of respondents considered the penalties for conviction on indictment are insufficient and do not reflect a response in proportion to the seriousness of the harm caused to women, children and young people.
On whether provision should be made to enable a court to convict the offender of 'alternative' offences without the need for these to be libelled in the complaint or indictment, the most frequently made comment was that provision should be made to enable a court to convict the offender of 'alternative offences'. A substantial majority of those commenting took this view. It was suggested that there may be cases where there is strong evidence of one crime being committed but weaker evidence in relation to another incident meaning the court is not satisfied that the course of conduct required for the domestic abuse offence is established. Under such circumstances, it was suggested that it will be important to secure a conviction on the offence for which the evidence is stronger.
The final consultation question asked respondents for any further comments on the draft offence. Many of the issues raised concerned how particular aspects of the proposed offence would operate. These included what will determine when the offence would be used and when behaviour which is already criminal - such as assault - would continue to be prosecuted under existing legislation.
Other comments considered self-representation by the accused. It was suggested that, given the impact of domestic abuse, it is inappropriate to permit someone accused of the offence to represent themselves in court, thereby providing a platform from which to intimidate and potentially re-traumatise a victim.
Many of the other comments focused on the resources required to identify, prosecute or otherwise implement the offence, or tackle domestic abuse more widely. This included a suggestion that consideration should be given to the capacity of the justice system to respond to domestic abuse beyond the identification of an offence.
Email: Patrick Down, firstname.lastname@example.org
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