Criminal Offence of Domestic Abuse Analysis of Consultation Responses

Scope and general structure of the offence

The consultation paper notes that the Scottish Government considered that two different broad approaches to developing the scope of the offence are possible. The first approach would be to create an offence which is specifically limited in scope to dealing with psychological abuse and coercive and controlling behaviour in a relationship which is of a kind that could not necessarily be prosecuted under the existing criminal law.

The second approach, which is that taken within the draft offence, is to provide for a general offence of domestic abuse that covers the whole range of conduct that can make up a pattern of abusive behaviour within a relationship: both physical violence and threats which can be prosecuted using the existing criminal law and other behaviour amounting to coercive control or psychological abuse, which it may not be possible to prosecute using the existing law.

Question 1: Are you 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 & coercive control?

Responses by respondent type are set out in Table 2 below.

Table 2: Responses by respondent type

Type of respondent	Yes	No	Not Answered
Advocacy and support groups	7	-	-
Children's and young people's groups	5	-	-
Law enforcement, legal and academic respondents	6	1	2
Local Authority, health and MAP respondents	18	1	1
Other individuals	18	-	-
TOTAL	54	2	3

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. This included all advocacy and support groups, children's and young people's groups and 'other' individuals. All but one of the law enforcement, legal and academic respondents who answered the question were content, as were all but one of the local authority, health and MAP respondents who answered the question.

Either at Question 1, or in other accompanying or opening remarks, a number of respondents welcomed the Scottish Government's decision to create a specific offence of domestic abuse. There were a number of recurring themes to emerge from respondents' further comments at Question 1, including reiterating support for the offence covering a wide spectrum of coercive control behaviours.

The most frequently made points were 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. Local authority, health and MAP respondents were particularly likely to have highlighted this issue. It was suggested that there should be guidance for the Crown Office and Procurator Fiscal Service ( COPFS) to that effect.
• 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. It was also suggested that there being an offence of domestic abuse could help to raise awareness of the increased danger people face at the point of leaving an abusive partner and this will lead to increased support for those leaving their partners or preparing to do so, and to their children.
• Creating the specific offence may also help victims understand that they are being subjected to domestic abuse and, by extension, increase reporting of that abuse. However, there was also a concern that the draft offence allows a very wide range of behaviours to be represented under one offence and in doing so may actually decrease awareness of the individual elements of the behaviour experienced by the victim and their cumulative impact.

A small number of respondents, including the local authority, health and MAP respondent who had answered that they were not content with how the draft offence is drawn noted that the health impact of abuse can be considerable and should be recognised. A specific suggestion was that the draft offence should be expanded to include physiological harms, and that in every instance where physical or psychological harm is referenced, physiological harm should also be added. Other suggested additions included setting out the whole spectrum of the damage done at section 1(c) including adding in sexual harm and economic and financial harm or loss.

Other comments about the draft offence itself included that drafting such an offence is not without difficulty. A law enforcement, legal and academic respondent highlighted the need for certainty in the law and noted the guiding principle of criminal law that no one should be punished under a law unless it is sufficiently clear and certain to enable him or her to know what conduct is forbidden before he or she does it. They went on to suggest that the commission of such an offence will require appropriate mens rea and that it is essential that any offence extending beyond physical abuse or offensive behaviour currently forbidden by the criminal law should be capable of definition and explanation. Another law enforcement, legal and academic respondent was of the view that the draft offence is clear in its terminology in respect of the prohibited behaviour and that this will be helpful for courts when applying the offence.

Other comments considered the landscape within which the offence would operate and/or what will be required for any offence to be enforced effectively. Certain of these comments considered the relationship between the proposed offence and existing legislation and/or behaviour which is already criminal, and included that the approach taken must not result in a diminishing of seriousness of specific conduct, such as sexual assault or that existing offences, including sexual offences, must remain in force and should not be 'scoped in' and potentially be treated as a lesser offence or result in a lower sentence. Other comments included:

• The COPFS must be able to prosecute all offences perpetrated by a partner or ex-partner against their partner or ex-partner and that this should also apply to children, other people in the family and animals belonging to the victim.
• It may be appropriate to deal with serious instances of sexual violence or physical harm as separate charges. A law enforcement, legal and academic respondent suggested that being able to take severity into account at the sentencing stage, with the proposed maximum sentence of 10 years' imprisonment, may make this less problematic than under the model adopted in England and Wales.
• It might be preferable to allow a domestic abuse aggravator to be applied to existing offences and charge these alongside the new domestic abuse offence that covers behaviour not already covered in law.
• It is not clear how the rule of double jeopardy would interact with an offence of domestic abuse. For example, if 'A' is prosecuted for an assault, will this assault be excluded from consideration should a future charge of 'domestic abuse' be brought against A? It was suggested that to do so would appear to contravene section 1 of the Double Jeopardy (Scotland) Act 2011.
• How convictions will be recorded must be considered. In particular, if the schedule of convictions is going to read 'domestic abuse', how will a future court know whether the accused has been convicted of a breach of a peace or murder?

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. It provides a non-exhaustive definition of what constitutes abusive behaviour for the purposes of the offence. A "course of behaviour" must involve behaviour on at least two occasions. The offence is committed where a reasonable person would consider the behaviour would be likely to cause B to suffer physical or psychological harm.

The consultation paper suggests that the advantage of having a reasonable person (objective) test is that the court will not require to hear evidence relating to the reaction of the victim; in the draft offence it is immaterial whether harm was actually caused to the victim, as long as a reasonable person would consider it likely to have been caused in the particular circumstances.

Question 2: Do you have any comments on the general structure of the offence set out above, in particular:

• the requirement that a reasonable person would consider the accused's behaviour would be likely to cause the victim to suffer physical or psychological harm;
• the requirement for a course of behaviour consisting of behaviour on at least two occasions;
• the mental element of the offence to be intention to cause harm or recklessness as to harm being caused?

In addition to, or instead of, commenting on the three specific aspects of the offence, a small number of respondents made general comments on the structure of the offence. These included broad support for the general structure of the offence.

A specific point raised by a law enforcement, legal and academic respondent was that both the reasonable person and course of conduct elements of the offence could have implications for the length of criminal trials. They noted that this could impact on court time and associated staff and accommodation resources and that they would welcome the opportunity to contribute to any financial impact assessment carried out on the introduction of the draft offence.

The requirement that a reasonable person would consider the accused's behaviour would be likely to cause the victim to suffer physical or psychological harm.

Comments about this element tended to focus on the concept of 'reasonableness'. They included that if robustly and consistently applied, the 'reasonable person' test should give victims increased confidence in the process. More specifically, it was suggested that perpetrators may have coerced victims into mistakenly believing their behaviours and actions are right or reasonable, and that if robustly and consistently applied, the 'reasonable person' test will give victims confidence that this is not the case. It was also suggested that the test would remove the burden of proof from the victim and may help ensure that victims of abuse are not required to provide evidence in court. However, it was also suggested that this approach must be kept under review to ensure it does not lead to fewer convictions.

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. It was suggested that not depending on the victim proving levels of distress will hopefully make it easier for those who fear they may not be believed, including when current or past substance use may be an issue. It was also noted that - as stated in the consultation paper - some victims may not show any particular reaction to the abusive behaviour and their reaction should not form part of the assessment of whether an offence has been committed.

However, it was suggested that, as currently drafted, there is a necessarily subjective element since the characteristics of the victim would have to be taken into account. The local authority, health and MAP respondent making this point suggested that if the victim is indeed particularly strong minded they would not be likely to suffer psychological harm and that this would be part of the assessment. They went on to suggest this aspect of the test is not entirely compatible with it being immaterial that the behaviour does not in fact cause the victim harm.

The need to assess the likely impact of the conduct on the victim was also raised by a law enforcement, legal and academic respondent and, in their case, cited as one of the problems associated with reliance on an objective test. They suggested that a test of the likely impact of conduct on a reasonable person is one far more readily recognised in the criminal law. Specifically, they noted that the test as currently proposed invites the fact finder to decide how a reasonable person might consider B, as an individual, is likely to be impacted. They suggested that this may necessitate some evidence being about the impact on B or about B as an individual.

A further concern raised was that the absence of a requirement to show harm to B arises in cases where B is not the instigator of the complaint, is not in fact harmed, and where B does not themself consider the conduct abusive. The example given was that the draft offence lists the effects of abusive behaviour as including making B dependent on A, including financial dependency. They suggested that this could apply where one partner ceases paid employment to provide child care and this is combined with seeking to control spending of the non-earning party. However, if B does not consider this abusive, employing an objective test may cause difficulty.

Other respondents voiced concerns about the 'reasonable person' test because they saw it as being overly subjective or as possibly requiring too much interpretation. A children's and young people's group respondent reported that their services have experience of behaviours that may appear, at first glance, to be 'reasonable' but the impact on the victim is significant. The example given was of instances where nondescript objects intended to cause distress have been left at the victim's property. An advocacy and support group raised similar concerns, in particular around judgments being made on the basis of what a 'reasonable' response would be from someone who has never experienced abuse. This respondent went on to explain that women they had spoken to were clear that things which their partner did or said to them would probably not cause anyone else distress but, because of the history they share with the perpetrator and the cumulative impact of the behaviour had directed at them, it does cause them harm.

Other points raised in relation to reasonableness, in this case by an advocacy and support group, included:

• It is not a feature of proof for other crimes of violence or abuse.
• It adds unreasonably to the burden of proof.
• The 'reasonable person' test would already have been met in terms of defining abusive behaviour.

It was suggested that the focus of the offence should be on an objective measure of harm. More specifically, the focus should be on: the behaviour and acts of the accused; intent to cause harm; likelihood of harm; or actual harm. The advocacy and support group raising these points called for the 'reasonable person' test to be removed from the legislation.

A law enforcement, legal and academic respondent (Police Scotland) also had concerns about the 'reasonable person' test and were of the opinion that its inclusion would significantly and negatively impact on the use of the legislation. They went on to report that many domestic abuse perpetrators are cunning, malevolent members of society who perpetuate subtle actions which may appear innocent to the casual observer but which are designed to impact significantly on their victim. They cited the case of Behan v Procurator Fiscal, Hamilton (2013) in support of their request to have the 'reasonable person' test removed.

Other comments focused on how any judgement around reasonableness would be made and by whom. They included that:

• In the majority of cases, first application of the reasonableness test will first sit with police officers who attend a call. What they believe to be physical or psychological harm could vary significantly, effectively creating a postcode lottery for victims.
• Personnel involved in making the judgement around reasonableness will need to be accountable.
• The 'reasonable person' requirement focuses the court's assessment on the pattern of behaviour by the perpetrator rather than the impact on the victim. This will mean that careful recording of the behaviour will be crucial to the prosecution's case. The law enforcement, legal and academic respondent raising this issue suggested that this may be achieved due to the constructive relationship between Police Scotland and the COPFS and the connection with specialist services.

Other issues raised included that members of the general public may struggle to understand the impact of different forms of domestic abuse, and especially the effect non-criminal conduct can have on a victim's psychology. It was noted that it will require juries to understand the subtle and cumulative nature of abuse and that the threatening environment created by the perpetrator is the context for what otherwise may appear to a reasonable person to be benign, non-malignant behaviour. It was suggested there could be specific challenges associated with the public's understanding the nature of abuse within the LGBTI community and the particular impact it can have on victims. The advocacy and support group and children's and young people's group raising this issue gave examples, including: an abusive partner isolating someone from the rest of the LGBT community; or threatening to out someone; or continually addressing a trans person with the wrong pronoun. A concern was that it may be difficult for a jury which lacks experience of or insight into the LGBT community to fully understand the psychological harm these types of behaviours could cause.

Suggested changes to the draft offence or other recommendations (many of which apply more widely than just to the assessment of reasonableness) included:

• Training will be required to ensure clear and consistent application of any test. In particular, front-line police officers will need specialist training in the application of the test. Training for sheriffs and all involved on the dynamics and effects of domestic abuse on women and children was also called for.
• Professionals applying the test should be required to detail the reason for their decision, based on the law and additional guidance.
• Consideration needs to be given to educating juries as to the nature and impact of domestic abuse prior to trial, for example through the use of expert witnesses.
• The Scottish Government should work with criminal justice agencies to produce guidance, including for juries, on the impact of forms of domestic abuse that are more specific to LGBT people. An advocacy and support group noted that they would be keen to assist in the development of such guidance.
• Victims should be supported to give a full and detailed account and to ensure that a comprehensive picture of the abuse is obtained.

Other comments focused on the definition of 'behaviour', including the specific reference to physical or psychological harm. These issues are discussed further under the analysis at Question 3. A children's and young people's group respondent was concerned that an unintended consequence of defining the offence by the effects of the behaviour on the victim is to make the impact of domestic abuse on children entirely invisible in the current offence. The impact on children of the offence as currently drafted is discussed further at Question 3.

The requirement for a course of behaviour consisting of behaviour on at least two occasions.

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 was 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.

Other comments focused on the possible challenges around proof or on the nature and relationship to each other of the incidents of abuse. They included that psychological abuse on as few as two occasions and without corroboration may be very difficult to evidence. Respondents also highlighted some issues on which they were not clear and/or where they considered greater clarity is required. These included:

• Whether the two separate occasions need to be of the same behaviour or whether it could be at least two incidents of abusive, but potentially different, behaviour? Presenting victims may have numerous behaviours to report but evidencing any particular behaviour has happened more than once may be difficult.
• Whether there would need to be two separate reports of abusive behaviour, or would it be possible to report multiple behaviours on one occasion?
• Whether there would be a timeframe over which the incidents will need to have occurred? In particular, how far back will the police or prosecutors be able to go if looking for evidence of controlling behaviours?
• Whether previous convictions would or would not be considered? The law enforcement, legal or academic respondent posing this question thought it plausible that an individual may, for example, have been prosecuted and convicted for assault but then go on to commit a subsequent act. They questioned whether the first incident would be 'counted' as one of the incidents for the purposes of establishing a course of behaviour. If this is the intention, they questioned how this can be reconciled with the Criminal Procedure (Scotland) Act 1995.

In terms of the course of conduct, a law enforcement, legal and academic respondent commented that the repeated behaviour must relate to the same victim and suggested that this leaves a gap where, for example, behaviour includes a single incident of abusive behaviour committed against an ex-partner of the accused and an incident against a current partner. An advocacy and support group respondent also highlighted this issue. They explained that a number of those contributing to their consultation response had suggested that the 'historic' element should include repeated acts/harms in any relationship in which the perpetrator has committed coercive control.

Other comments included that it will be important for the police to seek and record evidence of psychological abuse when responding to other incidents. This will help with evidencing a course of conduct for future prosecution.

The mental element of the offence to be intention to cause harm or recklessness as to harm being caused?

Comments about this part of the draft legislation tended to focus on either intent or recklessness. Considering both these issues together, a law enforcement, legal and academic respondent noted that the adoption of either intention or recklessness as the mental element of an offence is common in criminal law. However, this respondent did highlight a possible problem in respect of the actus reus (the physical act of the crime), where the stated effects of behaviour are very widely defined and may encompass behaviours that one would not expect to be criminalised. Their concern was that the inclusion of recklessness would mean that there would not be the legal certainty that is sought.

On intent, other 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. One suggestion was that it may be easier to prove that the intention was to control rather than to cause harm.

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. However, they also abuse with complete disregard to the consequences of their actions. The advocacy and support group amongst those raising this issue 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. Other comments on 'recklessness' included:

• Many perpetrators will argue that they did not intend to cause the harm and therefore a recklessness alternative will avoid the offence failing. Including recklessness decreases their opportunity to dismiss, deflect and minimise their behaviour.
• There should be a caveat to recklessness where it could be assumed that the perpetrator lacks capacity to understand the results of their behaviour. Recklessness should be intentional and by a person who is assessed to be of full capacity.
• A further definition of reckless behaviour will be required.

However, two law enforcement, legal and academic respondents did raise some specific concerns in relation to recklessness. These were that:

• By its nature, the behaviour within the draft offence and identified in the consultation paper is intentional. The proposed Sections 1(1)(c)(ii) and 1(2) each create extreme difficulty in defining or advising upon the point at which behaviour ceases to form part of the occasional disharmony that arises in every relationship and becomes behaviour that should attract the attention of the state by way of prosecution.
• In section 3(1)(b), liability can arise from an omission. The risk of uncertainty is exacerbated when the mens rea for committing the offence by omission includes recklessness. For example, failure to provide money to a dependent spouse, thus perhaps controlling their access to sufficient food, can easily be recognised as abusive behaviour causing harm. However, it is rather harder to envisage a situation where criminal liability should properly be attributed for a failure to say something. There is a concern as to whether the definition is sufficiently clear, accessible and foreseeable to meet the requirement for legal certainty.