Criminal Offence of Domestic Abuse Analysis of Consultation Responses

Definition of abusive behaviour & relationships the offence applies to

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. Behaviour of this kind can generally already be prosecuted. However, in individual cases, it may be that the prosecution considers it most appropriate to libel both conduct of this kind and other abusive conduct in a single charge as it is best seen as forming part of a pattern amounting to abuse of that person's partner.

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 intent with this approach is to bring within the scope of the offence coercive or controlling behaviour which may not fall within the definition of any existing criminal offence; it will always be for a court to determine whether particular behaviour falls within the terms of the offence based on the specific facts and circumstances of a case.

Question 3: Do you have any comments on the definition of 'abusive behaviour' contained in the draft offence?

Children and young people

Either at Question 3 or elsewhere in their response, a number of respondents made substantive comments about the coverage of children and young people within the draft offence. This issue was raised in particular by children's and young people's group respondents, but also by others, including by the academic and eight young survivors of domestic abuse who work together to promote the use of evidence from young survivors of gender-based violence. They felt that the definition of abuse as currently included only tells half the story and misses out the common experiences of women and children who experience abuse together.

Very much in line with this view, 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. Points raised included:

• Domestic violence affects extremely large numbers of children throughout Scotland and the UK. There is a considerable body of evidence as to the wide-ranging and very serious effects on children of living in homes where there is domestic violence. They include increased risk of being physically or sexually abused, higher rates of anxiety and depression, trauma symptoms and behavioural and cognitive problems.
• A child or young person can be the victim of coercive control in a range of different ways, many of which may echo the types of controls their mother is being subjected to. This might include being denied access to pets, possessions, food or medical care. Equally, control over their mother's finances or movements is likely to affect them directly. Abusers may also seek to undermine the relationship between a child and their mother.

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 - violence, threats, intimidation, psychological harm.

Specific suggestions as to how greater recognition could be given to children and young people included directly referencing them within section 2(1)(b) of the draft offence. This section currently refers to ' behaviour directed at B or any other person'. The suggested alternative tended to be along the lines of 'behaviour directed at B, at B's child or children, or at any other person'.

Other suggestions included covering the impact on children in the list of abusive behaviours within the definition. Specific suggestions included:

• Manipulating children. For example, the use of post-separation contact visits to 'interrogate' children about what is going on in their home.
• Directly threatening and demeaning children.
• Threatening to remove children or have them removed, including threats to make reports to social services or making malicious reports to social services.
• Undermining and interfering with the ability to care for any children or young people in their care.
• Disrupting the family's financial stability, including by withholding financial resources which help support children. For example, not paying maintenance or paying it late particularly around holiday times.
• Otherwise significantly impacting on family functioning, including housing, education stability and caring services.

Conducting a children's rights impact assessment on the draft bill was also suggested, to allow a full exploration of the bill in the context of the wider child protection system, which recognises that living with domestic abuse constitutes a significant risk of harm to children.

Finally, it was suggested that there may be a case for creating another section to the legislation which deals specifically with children. The advocacy and support group respondent which made this proposal included a suggested draft of this section. This draft has been included in full within Annex 2 to this report. Similarly, a children's and young people's group respondent suggested that there may be merit in considering two distinct offences: abusive behaviour towards a partner; and abusive behaviour towards a family member in the context of domestic abuse. They also suggested that this could be achieved by having a new section 2, but that it would only be an offence if it was also related to abusive behaviour towards a partner or ex-partner.

Other comments on the definition of abusive behaviour

Although comments at Question 3 tended to focus on the description of what constitutes abuse set out in section 2 of the draft offence, some respondents also commented on the wording at section 1(1)(b). The most frequently made suggestion (either at Question 3 or as referenced earlier at Question 1) was that the definition of abuse ought to be expanded beyond physical or psychological harm. Other types of harm or abuse which respondents thought should be added included sexual violence, abuse or exploitation, emotional abuse and financial abuse or exploitation.

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. More specifically, it was suggested that the 'abusive behaviour' term is useful in dispensing with the complexities surrounding the terms 'coercion' and 'control'. 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. It was also suggested that it would be helpful if the legislation acknowledged the difficulties of drawing up an exhaustive list of behaviours and made it clear that this allows all behaviours which a reasonable person would consider abusive to be taken into account.

An advocacy and support group respondent raised an issue with the phrasing of section 2(1)(a) and suggested that, as currently worded, it leaves a gap in the definition of abusive behaviour. More specifically, they suggested that by referring to behaviour that is 'violent, threatening or intimidating' it effectively excludes abusive behaviour by not specifically naming it. They suggested that behaviour which is ' abusive' and specifically ' sexually abusive' should be directly referenced. They also suggested that this section must make provision for behaviour that is 'controlling or degrading' since the exercise of control need not be done in a way that is immediately violent or threatening.

There was a small number of suggestions as to changes in the terminology, both within the definition and more widely. These were:

• All references to sexual violence within the legislation to be amended to sexual abuse. The law enforcement, legal or academic respondent making this suggestion felt this would ensure consistency and ensure the offence captures all acts of sexual abuse and not only those which contain an element of violence.
• Section 2 uses the word ' effects' as opposed to ' harms', which is the terminology used in section 1. ' Harm' should be used throughout, followed by ' by the accused directly or through third parties.'

On a general point, it was suggested that the effects of abuse in section 2 should be more explicit in terms of reflecting the deprivation of rights, autonomy and the manipulating and restriction of choices, health and wellbeing. Specific suggestions as to additional elements to be included within the definition included:

• Threats to anyone the victim cares for, including threats to remove children or to harm children or other relatives.
• Limiting liberties and freedoms. The focus would be on reduction in daily function and activity due to demands by the perpetrator that any reasonable person would see as restrictive.
• Different forms of intimate partner violence, such as sexual violence.
• Behaviours related to sexual coercion and pressure which may not fall within existing legislative definitions of assault. For example, reproductive and sexual coercion involving sabotaging or preventing the use of contraception, pressure to continue an unwanted pregnancy or to undergo terminations of pregnancy.
• Sexual exploitation, including making someone engage in prostitution or pornography.
• Making someone feel uncomfortable about their gender identity or sexual orientation.
• Being forced to behave in a way they otherwise would not, for example being forced to shoplift.
• Harm, or threats of harm, to pets or other animals.
• Destroying property and possessions, including targeting of particular items of property that hold emotional or practical importance to the victim.
• Financial abuse, including withholding access to money or running up debts in the victim's name.
• Withholding access to other things in order to cause harm, such as access to health services, medication, bathroom facilities etc.
• Giving drugs and/or alcohol to develop a dependence in order to control, and then using this as part of the abuse. This should include withdrawal of supply of substances.
• Cyber abuse, such as abusive posts, revenge porn threats or demands of instant pictures as a form of surveillance.
• 'Gas lighting' behaviours, aimed at making the woman doubt her sanity. ^[1]
• The use of a third party ( e.g. other family members) to sustain or perpetrate abusive behaviour.
• A catch all clause, that allows for behaviour outwith the specified examples, but which a reasonable person would find abusive.

There was also a small number of queries about the intended meaning of parts of the current description. These were:

• Section 2(1) attempts to provide categories of behaviours to encapsulate the perpetrator's purpose, with section 2(2) addressing the consequences of such behaviours. Why is there a need to prove the behaviour had as its purpose (or one of its purposes) one or more of the listed effects on a victim?
• At section 3(1)(a): ' saying or otherwise communicating something as well as doing something'. Does this mean that the perpetrator would have to communicate something as well as do it?

Otherwise, it was noted that 'and/or' has not been inserted between the behaviour criteria at 2(1)(a) (behaviour directed at B that is violent, threatening or intimidating), and 2(1)(b) (behaviour directed at B or any other person). An advocacy and support group was amongst those raising this issue. They felt that that this means it is unclear whether the woman would have to experience one or more of the abusive behaviours under 2(1)(a); a combination of 2(1)(a) behaviour and 2(1)(b) behaviour; or behaviour under 2(1)(b) only. They also noted their concern that women could have to 'to jump through several hoops' to prove the offence. They were one of the respondents who went on to recommend the insertion of 'or' or 'and/or' between 2(1)(a) and 2(1)(b).

In terms of other factors that may need to be taken into account when taking the draft legislation forward and/or at implementation stage, the following issues were highlighted:

• How will the offending of repeat offenders of sexual offences be monitored if prosecuted through this offence? How it can be ensured that Sex Offender Notification requirements are triggered?
• There may be behaviour which some ethnic and cultural groups consider acceptable within the family or community but which may contravene the legislation as proposed.
• Any guidance accompanying the legislation could include a longer list of the types of behaviours which might be considered abusive. In particular, guidance for criminal justice agencies covering how LGBT-specific forms of domestic abuse would be covered by the legislation would be welcome.
• Training and information will be required for those in the criminal justice system to understand the gendered nature of domestic abuse against men and how it manifests.

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), one of the law enforcement, legal or academic respondents had considerable concerns. These concerns followed on from their comments at Question 2 on the employment of an objective test.

They noted that the official definition of domestic abuse in Scotland contains behaviours that are not criminalised but are evidenced as being common in abusive relationships. They acknowledged that the draft offence attempts to criminalise those actions that make up the individual components of domestic abuse, when they occur against a background of coercive control. However, they considered that the approach adopted in section 2 of the draft offence does not achieve this. This respondent re-stated the position they had set out in their response to the Equally Safe consultation, namely that embodying a distinction between common couple violence and coercive control in a workable definition of a crime is extremely challenging. They also 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 consultation then moved on to consider the relationships to which the offence should apply. The draft offence is restricted to people who are partners or ex-partners. The consultation paper suggests there is a particular dynamic to abuse of a person's partner or ex-partner. It notes that the approach to describing the relationships caught by the offence is that which has been used in the Domestic Abuse (Scotland) Act 2011 and in the provision for a domestic abuse aggravation contained in the Abusive Behaviour and Sexual Harm (Scotland) Bill.

Question 4: Do you have any comments on the relationships the offence should apply to?

In their comments at question 4, a number of respondents began by noting their agreement with the offence only applying to people who have been or are in an intimate relationship. The very great majority of those who made a clear statement on the issue supported the offence being restricted to people who are partners or ex-partners.

Some of these respondents went on to note that the offence should cover couples in a relationship which has not been sexually intimate. Other suggestions included that those in short term relationships, who do not cohabit or who have relationships through social media should be included or considered for inclusion. It was also suggested that the term 'partner' may need to be defined, as it may have different meaning to different people.

In support of the proposed approach, it was noted that it is in line with the definition developed by the National Strategy ^[2] , 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. It was further suggested that an offence that seeks to include all forms of relationships where abusive behaviour is used may become unwieldy. The law enforcement, legal and academic respondent raising this issue went on to suggest that it seems pragmatic to apply the current understandings of domestic abuse in Scotland to ensure successful application of a new offence.

However, and as at Question 3 above, the issue of whether the offence should be extended to cover children was raised by some respondents. They included a law enforcement, legal and academic respondent who suggested that, as it stands, the definition to include 'intimate personal relationship' could easily extend to children. They noted that it is clear from the consultation paper that this is not the intention of the legislation but suggested that the drafting of the offence does not exclude it. Those who suggested the offence should be extended to cover children and young people raised very similar issues to those discussed at Question 3. In particular, they suggested that:

• Children need to be named as victims of domestic abuse. This could perhaps be done by explicitly linking children to domestic/partner abuse so it remains distinct from child abuse.
• The offence should apply to children and young people affected by parental or carers' abuse.

Also with reference to children, two children's and young people's groups focused on how any offence could apply to children or young people accused of domestic abuse. It was noted that there is no age restriction on the offence and it was reported that there is considerable research evidence to suggest that patterns of violence in intimate relationships can begin early and are impacting on large numbers of young people's teenage relationships. They asked that the Scottish Government pay particular attention to the issue of how children and young people accused of domestic abuse will be treated in relation to any new offence created.

In particular, they raised a concern that the new offence could result in increased criminal prosecution of young people through the adult court system and suggested that any new offence should be accompanied by clear guidance regarding young people accused of the offence being diverted via the children's hearing system, in all but the most serious cases. It was also suggested that consideration needs to be given to how any law would interact with child protection procedures and other legislation such as the GIRFEC provisions in the Children and Young People (Scotland) Act 2014.

Otherwise, it was suggested that the offence should apply to:

• Other family relationships. In particular, it was suggested that while the law already offers opportunities to prosecute where a parent harms a child, it is very difficult to obtain a prosecution of adults harming adults, including harm by adult children and carers.
• 'Honour' based abuse, which it was suggested is a form of domestic abuse and a controlling mechanism sometimes used by immediate and extended family members on women who are considered to have brought shame on themselves, their family and the community.
• Where there is a dynamic of an abusive relationship between a couple - and the parent of the perpetrator supports their child (often their son) in the abuse. Also, where other family members, such as in-laws, are involved in or cover up the abuse.

On a point of information, a law enforcement, legal or academic respondent reiterated their view that there does not seem to be any obvious reason why behaviour that is criminal when engaged in by a partner towards a partner or ex-partner should not also be criminal when engaged in by an adult towards another adult within the same household. They noted that while some such people fall under the provisions of the Adult Support and Protection (Scotland) Act 2007, others may not, and suggested that it is not immediately clear why only certain persons complaining of intimidating and controlling behaviour are to be afforded this statutory protection.