Domestic abuse court experiences - perspectives of victims and witnesses: research findings

7. DASA: Enhancing Implementation

Introduction

From the perspectives of the 22 victims and witnesses in this study, the Domestic Abuse (Scotland) Act 2018 (DASA) offers an opportunity for the justice system to reflect the seriousness and reality of domestic abuse as intended^[64]. The Act better reflects how adult victims experience domestic abuse - as a range of abuse over time. DASA's aggravation in relation to a child (S5) reflects key aspects of parents' and children's experiences of domestic abuse and the adverse effects of domestic abuse on children. However, the experiences of these 22 victims and witnesses identify many challenges in the implementation of the Act so far: in the police and COPFS tackling such abuse effectively and in courts' capacity to minimise trauma and promote safety of victims, witnesses and associated children^[65]. The COVID-19 context exacerbated such challenges, particularly (but not only) in relation to court delays. For participants in this study, the average time from reporting to case closure was 9.6 months^[66] which had a significant impact on their lives and trauma recovery.

This study's research questions^[67] asked participants to describe their journey through a court case since the implementation of DASA and their responses are discussed in detail in Chapters 3-6. In summary, the criminal justice process did not meet their expectations (nor the minimum standards of the Victims' Code for Scotland): they reported that they were not safe before, during or after the court process; they felt that court outcomes did not reflect the seriousness of the crime nor the full facts and circumstances of their case; lengthy court cases exacerbated the cumulative impact of domestic abuse (which they endured pre, during and post proceedings); trauma recovery was stymied and in many cases court was a site of further trauma; and there were significant, lasting mental health effects in relation to both the abuse and the court case. Specialist advocacy and support services were reported as the most significant mechanisms for minimising trauma, through improving a sense of control and enhancing feelings of safety. When certain professionals explicitly used DASA to sensitively help the victim identify domestic abuse over time and build a case, this was positively received by participants. This could be done more consistently, by all relevant professionals. There remain significant concerns and gaps in relation to safety, delays, effective communication and collaboration, victim-centred practice and wrap around holistic (including therapeutic) support to promote recovery.

Victim-survivors in this study recommended urgent change to the criminal justice response to domestic abuse; their ideas for change are outlined in the 'ways forward sections' of each chapter and summarised in this concluding chapter. Some of the ideas involve effective implementation of the Act itself, to realise its intentions and ambitions. Other ideas ally with current directions of change, in particular as laid out in the Victims' Code for Scotland^[68], the Vision for Justice in Scotland and initiatives below. It is hoped that the findings of this research will be considered in relation to implementation, scope and urgency of these directions of change:

• The virtual summary criminal trials project board recommends specialist online domestic abuse summary courts across Scotland to allow victims/witnesses to give evidence virtually from a remote building, with support - this is a key priority for victims/witnesses in this study.
• The child witness-focused initiatives of pre-recording high quality evidence-in-chief (SCIM) so as to remove the need to attend court at all and to bring support, recovery and justice together (Barnahus) both reflect urgent requests from child witnesses but, importantly, also adult complainants in this study and in summary as well as solemn cases.
• The Scottish Sentencing Council's work on domestic abuse guidelines are important in relation to this study's findings on post court safety and victims'/witnesses' perspectives on sentencing; pilots to resolve cases earlier are important developments in relation to victims' and witnesses' perspectives on reducing lengthy and traumatic court processes.

This concluding chapter summarises gaps and suggested changes in light of DASA intentions, the Victims' Code for Scotland^[69] and The Vision for Justice in Scotland and concludes with messages from victim-survivors to the Scottish Government.

Reflections on the Domestic Abuse (Scotland) Act 2018

The Act's language and provisions reflect victims' experiences far more accurately than the previous focus on individual incidents, as discussed in Chapter 2. However there is some way to go to ensure the law is easy to understand and accessable to all experiencing domestic abuse^[70]. The potential of the Act is demonstrated by positive examples of professionals utilising it, in sensitive collaboration with victims, to identify and prosecute a course of abusive behaviour over time. However, some areas of practice were reported to remain focused on single and/or 'serious' incidents. Non-Harassment Orders (NHOs) can contribute to safety and the child aggravator has potential to reflect the harm to children and non-abusive parents. Participants felt that there could have been enhanced application of DASA and its provisions in relation to many of their cases; many felt their 'whole story' was not heard. This suggests: extending the use of DASA to more domestic abuse cases; ensuring investigations and prosecutions reflect victims' and witnesses' 'whole experience', including psychological harm; proactively using DASA's provisions/orders and considering their potential scope; ensuring sentencing reflects the seriousness of crimes, particularly in summary court; and enhancing attention on harm to children. Relatedly, how children are currently recognised as victims of domestic abuse in law may benefit from further consideration. The interactions between child contact, when parents separate, and the protective orders of DASA, was also identified as requiring further investigation.

Ensuring safety of victims, witnesses and associated children

The safety of victims and witnesses in this study was not ensured during and after investigation and proceedings^[71], reflecting abuse survivors' safety concerns in pre-pandemic studies (e.g. Brooks-Hay et al., 2019). As detailed in the report, victims in this study said that most perpetrators continued to exert control and instill fear through the court system, despite DASA reforms. Safety was the major concern of victims and witnesses and the main reason for reporting domestic abuse; they expected that reporting would stop abuse and provide safety for themselves, family and friends^[72]. This study, although based on a small sample size, provides strong qualitative evidence of secondary and repeat victimisation, intimidation, and retaliation towards study participants^[73]. Though some participants felt safety could only be achieved through imprisonment, NHOs did offer some victims temporary protection and increased confidence that further abuse (i.e. expected breaches) would receive a more effective police and prosecution response. However in the majority of examples in this study, NHOs did not include associated children, incurring risks for both women and children. Consequently, most participants appealed for NHOs to be considered for all associated children. Also, participants felt the scope of NHOs should be considered carefully – in terms of times and activity covered, and the need to include 'third parties'.

The involvement of victims and families in decision making

The Vision for Justice calls to embed trauma informed person-centred practices, where individuals and families are involved in decisions that affect them^[74]. This was an important need identified in this study. There were repeated reports of victims being excluded from decision-making and being unaware of the decisions that were made. The involvement of relevant family in decision making was important to victims and witnesses in this study. Whilst they felt domestic abuse affected all family members, including children, adult children, new partners, parents etc., they felt that the relational aspect of abuse was inadequately recognised in decision-making, particularly in the way that their safety was interconnected. Child cited witnesses themselves reported not being party to or understanding decision-making and that justice professionals did not understand the impact of decisions on the children's lives. Participants' calls for change included improved collaboration between the police, procurator fiscal and the victim/witness to build the case together and for sheriffs and judges to listen to the impact on victims and families before making sentencing decisions. Participants stressed how the safety and needs of the whole affected family needed consideration in decision-making throughout the case.

Victim-centred investigations and proceedings

Victims and witnesses in this study felt they were on the margins of 'their case' and felt excluded from the point of giving their statement; such marginalisation in proceedings echoing wider pre-pandemic research (Brookes-Hay et al., 2019). They felt they had no say in what happened next, yet they had more to contribute to 'build the case' once the initial trauma of the incident/statement had passed. They felt their evidence (or 'story') became a tool in a process over which they had little control. They felt uninformed of next steps and decision-making in relation to proceedings and court appearances. They identified the emotional costs of going to court (reflecting findings from Forbes 2019) and in particular from ^[75] that the law was on the perpetrator's side and it was an 'uphill battle' for the victim. They outlined how they felt the perpetrator had greater representation, power and support during the court processes than victims and witnesses. This echoes the experiences of gender based violence victims in Brookes-Hay and colleagues (2019), who felt the system was weighted to the perpetrator. Similarly, participants spoke of the 'emotional costs' of a lengthy process, again echoing Forbes (2019), and of repeated periods of waiting (for proceedings to begin; to appear in court; and for cases to close). They also noted that justice professionals failed to comprehend the depth of the emotional impact caused by the process and the abuse. Suggestions from participants in this study for victim-centred change included: giving evidence soon after reporting; having someone 'on their side', representing them; removing both adult and child victims/witnesses from the adversarial court arena; early 'closure' for victims/witnesses; and access to immediate and ongoing trauma recovery support for victims and associated children.

Timely and clear communication^[76]

The lack of timely and clear communication was a major issue for participants in this study; an issue undoubtedly impacted by COVID-19, although also identified in earlier studies. Victims and witnesses in this study described struggling to find out what was happening in the investigation or proceedings and a lack of effective communication from justice agencies^[77] as detailed in the Chapters 3-6. This impacted victims' and witnesses' sense of safety, control and choice and undermined trust in the system. Many spoke of feeling powerless, again echoing Forbes' study (2019). Specialist advocacy and support workers played a key role in enhancing communication, supporting access to information and promoting understanding. However, participants in this study echoed young survivors in the Everyday Heroes report (Houghton and MacDonald, 2018) appealing for improved information and communication processes for victims/witnesses. There were repeated suggestions from adult and child participants to have a single named justice contact for their court case, to counter repeated difficulties by many victims to access even basic information.

Access to appropriate support during and after the investigation and proceedings^[78]

As detailed in chapters relating to the court journey, evidence from this study identifies specialist (domestic abuse) support and advocacy workers^[79] as the most significant mechanism to maximise victims' and witnesses' choice, trust and safety, and help them navigate the court process. This was found for both adults and children. The relational nature of these services enabled ongoing support with a single named worker, supported by trusting relationships and caring, victim-centred support. However issues remain around access to advocacy and support, including in relation to timing, remit, geographical reach, and duration of support. The limited duration and remit of advocacy and support provision did not fully meet needs identified by participants for short and longer term trauma recovery, wider mental health and rights support. Nor did it cover all family members who were affected by the case. Participant suggestions included early access to support for all affected children, not just the child cited witnesses, to continue for as long as they need it. Another suggestion was for holistic ongoing, 'wrap around' support for victims and witnesses from initial reporting to post-court, including times when many felt they were particularly vulnerable and/or were ready for specific support to move on with their lives (trauma recovery, safety, rights, benefits, careers, etc..).

Trauma and domestic abuse-informed responses

Scotland's Vision for Justice (2022) transformation priorities are that justice services, third sector partners and the legal profession must be person-centred and trauma-informed^[80]. This would be an important step towards improving responses in relation to needs identified by victims' and witnesses' in this study. Participants reported few encounters with justice professionals where they felt their needs were central or the main driver for decision making – particularly in court processes, including opportunities to build trust, respect, collaboration, and a sense of safety – were consistently exercised by professionals other than those in the third sector. Opportunities for victims and witnesses to experience a sense of choice and empowerment, key aspects of trauma recovery, were limited. Positive encounters made a significant difference, such as: the police officer stating how serious she was taking the case; the reassuring chat with the procurator fiscal (PF) before giving evidence; the court witness service saying what a strong woman the victim was; interjections by the PF and Sheriff. Negative encounters, such as defence agents making them feel to blame and disbelieved were re-traumatising. Overall, child and adult participants reported a general lack of understanding and empathy in the system in relation to their experiences of domestic abuse and its impact on their lives. An oft repeated statement was that justice professionals did not understand the impact of abuse and needed to. Specific suggestions for change included that defence lawyers should not be allowed to make them feel 'horrible', 'small' and 'call them liars'. Many felt that responses throughout the process could be more tailored and sensitive to the realities of domestic abuse and its effects, and to their particular position (e.g. as a child, a man, a vulnerable young woman but also geographically and professionally).

Recognising the impact of domestic abuse

Impacts of domestic abuse described by participants included all the relevant effects identified in DASA, including ongoing fear, alarm and distress; effects on health and well-being and relational impacts on those around them. Engagement in the justice process itself was a source of further harm and distress for those involved in this study, with varied and far reaching effects. While the nature of distress and harm varied in nature and significance, it was often determined in part by the type of abuse, the length of the court process, experiences at court, the actions of those responsible for abuse, and outcomes of court. Effects of abuse and the court process intersected with cumulative impacts on many aspects of individual's lives, including: employment; families; wider relationships; mental health; physical health; housing; schooling and community. Young victims (under 18 when domestic abuse began from a 'partner') outlined particular vulnerabilities and impacts, suffering abuse at a key transitional time of their lives. Parents expressed concerns about maintaining their caring and nurturing relationships with their children. Their resilience and parenting efforts under pressure were described in the study but they felt were not adequately recognised nor supported through justice and other agencies' responses and measures. Children described impacts on themselves but also how they recognised and responded to their mothers' or siblings' well-being. Many participants expressed concern about falling of a 'cliff edge' in terms of support (and protection) once the court case ended and most spoke to researchers about seeking further support. The need for holistic and therapeutic support from the moment domestic abuse comes to the attention of any agency, throughout and beyond any contact with the criminal justice system, was expressed by many victims and witnesses, in relation to themselves, their children and families.

Sharing power with adult and child victims and witnesses

Key tenets of both the The Vision for Justice in Scotland and Scotland's Equally Safe strategy are to share power with those with lived experiences of trauma and domestic abuse and to ensure victims and witnesses are at the centre of both policy and practice change, including service co-design and active participation and collaboration^[81]. It seemed fitting, therefore, to finish the report with perspectives from study participants on the ministerial duty in the Domestic Abuse (Scotland) Act 2018 'to provide information about the experiences of witnesses including witnesses who are children (S14(2)(f))'.

Participants described feeling empowered through the opportunity to be involved in this research, despite it being a difficult experience. They felt that Ministers hearing their views was crucial, that Ministers needed to actively listen to victims, hear directly from them and be aware of the impact of national decisions on victims' lives. Of particular importance was involving victim-survivors to ensure change happened:

I think more people that have this voice, to be able to help make a difference, is what's needed, so anything I can say that might change something, then great. (Adult 4)

Children and young complainants felt that it was particularly important, and less likely, that Ministers would listen to children and young people and involve them in making change. As one child witness explained:

I think just kind of listen to young people. Because they might not be adults or older people or people in charge but they still have valuable points and you still need to listen to them. So if they say that you could actually do this to make something better for everyone else then they shouldn't just go, 'Oh, you're a child, that's not a valid idea.' I think they should listen to them. (Child 3)

Participants' key messages to the Minister were the urgent need to radically improve the criminal justice response to domestic abuse, to use the new Act more effectively and to involve victim-survivors in such change. Key themes emerged of enhancing justice, safety and support, encapsulated here through quotes from an adult, young complainant and child (and described throughout the report):

You [the Minister] need to restructure the whole thing from start to finish… More support is needed for victims that do stand up and speak out, and courts' decisions need to think about the victim's safety after the courts have finished. (Adult 4)

Stuff needs to change. It's not good enough. And especially for the younger girls. I mean, it's not fair for you to constantly be battling…even years after it's all happened, it's not fair. You need to have more support, you need to have a routine and all that. You need to just…not even be left alone, 'cause the minute you're left alone your mind starts going all over the place, that's when you feel it .(Young Complainant 1)

Make sure people have got the time they need to prepare, because it does take a lot to kind of wrap your mind around it, and really, like, take into consideration what you're about to do. Because it can be really stressful, and have a big impact on people, and really make sure they have someone there to talk to. (Child 4)

Participants felt Ministers had a specific role to diminish the power of the perpetrator and empower adult and child victims and witnesses through improved public awareness of DASA, clear messaging about domestic abuse and reassurance of an enhanced criminal justice system response. Several victims/witnesses suggested clear national messages about DASA, what amounts to criminal behaviour and some felt education on healthy relationships was also important. Victims and witnesses required reassurances (and proof) that, should they report, the criminal justice system (police, COPFS and courts) would take victims and witnesses seriously, make perpetrators accountable, and protect and support adult and child victims and witnesses. This is exemplified by a participant's request whose own situation was exacerbated by her migrant status, and the additional control this afforded her ex-partner:

The Minister should make sure the men who feel they are powerful – of course, false power – or they think that they can do anything they want to do and act like thugs, and they can actually make their wife and children suffer, the message should make sure that men do not have this false attitude…make sure that the women actually have power, all this has to be clear to the woman that, you know what, you're not alone, we protect you (Adult 5).

Finally, adult and child victim-survivors felt they themselves should empower others experiencing domestic abuse, demonstrating immense strength, empathy and kindness. Despite the criticisms of the criminal justice system contained in this report, many messages from adults and children to other victim-survivors were to report abuse, as they felt it was the right and only thing to do. Key messages were to keep going, to be strong, to stand their ground and to know they will get through it and move on. This report ends with supportive messages from an adult, young complainant and a child reflecting common empowering messages to others:

Try and remain calm, positive and powerful and you'll get there … At the end of the day, they're, women haven't done anything wrong, it's the men that do wrong … And it's the men that are there to get questioned and sentenced (Adult 3)

Tell them to keep their head high and keep yourself right. (Young Complainant 4)

Like, but it'll be hard, but you will get through it. You just need to put up a brave face, but it's okay to show emotion and know that you can get through it. (Child 4)