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

2. Domestic Abuse (Scotland) Act 2018: shifting understandings of domestic abuse

Introduction

The Domestic Abuse (Scotland) Act 2018 (DASA) aims to 'reflect a modern understanding of domestic abuse and to ensure that victims and perpetrators are clear what amounts to criminal behaviour and that this can be addressed through the justice system'^[41]. The chapter considers study participants' awareness of DASA, their perspectives on the new law and shifts in understandings, and assesses whether the Act and its provisions reflect how victims experience abuse. It sets the context for Chapters 3-6 which provide detailed comment on aspects of the court journey.

Headline findings

• The new law better reflects how adult victims actually experience domestic abuse. Efforts to reflect children's experiences through the child aggravator correctly describe key aspects of abuse but do not adequately reflect how parents and children experienced abuse together.
• Victims, witnesses and some professionals (as reported by study participants) had limited awareness of the Domestic Abuse (Scotland) Act 2018. Victims and witnesses in this study needed more information about what constitutes criminal behaviour under the new law.
• Victims in this study felt there were missed opportunities to use DASA and its provisions and that there remained a focus on single or/and 'serious' incidents in some cases of ongoing abuse.
• Victims and witnesses supported criminalising psychological abuse. However, they felt that the system struggles with prosecuting this, particularly in regards to verbal, telephone and online abusive behaviour.
• Many victims felt that abuse of a third party – family, children, friends – had not been taken account of adequately throughout the process.
• Victims who were parents and child cited witnesses did not feel that the perpetrator's involvement of children was taken seriously enough. It was reported that new provisions in the Act to protect children (the child aggravator, the non-harassment order) were under-utilised.
• Victims and witnesses in this study felt there was some way to go for their whole story – the full facts and circumstances of domestic abuse - to be reflected in the criminal justice process.

How DASA reflects victim-survivors' experiences

Without doubt the new law better reflects the experiences of victims: all participants experienced a pattern of 'violent, threatening or intimidating behaviour' (S2(2)(a)) over time (far exceeding the two occasions required by the Act). All participants related experiences of psychological harm (S1(3)), which was combined with physical violence for most and some additionally spoke about sexually violent behaviour (S2(4)(a)). Most spoke of an escalation over time and/or a fear of escalation. For some this was post-seperation, which underlines the importance that ex-partners are included under DASA. This description was typical for many participants in the study:

… It got progressively more and more abusive throughout. So, I had quite a lot of injuries on and off, a lot of emotional abuse, mental abuse, like every type of abuse you could think of, it was there. He threatened to kill me… (Adult 4)

Victims and witnesses appreciated what they often referred to as the shift to 'historic abuse' - a recognition of the abuse they had suffered over time. However, most victims had experienced abuse for years and the Act only covers abusive behaviour since April 1^st 2019, so these victims felt the charges represented only a fraction of abuse:

I think there was a lot in it that they couldn't charge him with because of the date… all these messages are from years and years…it's like, can't really do anything about it now… 12 years of abusive messages there…But nobody really listened to that. (Adult 8)

To charge as a single 'course of conduct' made sense to most victims as it had potential to reflect their 'whole experience': the full facts and circumstances of their abuse. However, in relation to abuse post-April 2019, most victims and witnesses in the study did not feel that the 'whole story' was accounted for in the criminal justice process, nor that all aspects of abuse 'counted' in relation to charges and sentencing. Most victims and witnesses felt the focus remained on a small number of the 'more serious' physical or sexual assaults, discounting elements of their story which led to their confusion, frustration, anger and feelings of violation.

Awareness of DASA

Most adult victims were not aware of the Act prior to reporting. The few adult and child participants that had awareness prior to reporting described being made aware through adverts on TV, posters and buses.

Many participants remained unclear what amounted to criminal behaviour in relation to the Act though some expressed appreciation of the range of abuse included. In several cases adult victims were supported by the police to identify the abusive behaviour as criminal. These participants often used the language reflected in the Act to describe their experiences, including coercion, control, fear, distress, harm. This participant was pleased that the stalking of her and her daughter by an ex-partner was included:

I think the new law is really good as well though that's come in, the stalking under the domestic abuse and stuff. (Adult 7)

There were a few examples where the victim reported/disclosed one incident and the police officer (mainly) or health professional used DASA to sensitively help the victim reflect on, identify and report further abusive behaviour that had taken place over time. These participants appreciated the sensitivity and knowledge of the professionals and DASA's shift in understanding as to 'what counted' as criminal behaviour. The professionals reassured them that the justice system could now respond to all aspects of their experience^[42].

I didn't believe myself that it was domestic abuse, I just went in and told what was going on. I was really just saying how frightened I was because of the baby and his behaviour, and confused. So I did go right back with them to the very beginning and a lot of pieces of the jigsaws have come together since. (Adult 10)

Those who had no knowledge of DASA, until the research project, reacted with frustration to learn there was a law about a pattern of abuse that they felt could have been applied and yet no-one had told them^[43]. These victims felt that their abuse was not looked at holistically – in relation to the variety of abuse suffered and length of time. Many used similar language in critiquing a 'single incident' focus (or several incidents with different charges), as exemplified by this quotation:

The one…the incident thing that goes to court…with a case that involves domestic abuse, it's not just that one incident that actually matters. (Adult 2)

Criminalising psychological abuse

All but one victim^[44] and all child witnesses spoke of a course of psychologically abusive behaviour causing psychological harm including 'fear, alarm and distress' (S1(3)); the Act reflects their reality and the most common, ongoing and overwhelming component of abuse. Victim accounts suggest that the operationalisation of this aspect of the Law seemed most difficult for the police, especially when the abusive course of conduct was entirely non-physical (a new crime under the Act). This victim experienced persistent online psychological abuse and harassment causing mental ill-health:

I didn't know that it was the law that should be looking at it [abuse] in its entirety and thinking about the psychological aspect of it. I had no idea that was a factor, because when I asked about what point does it become a crime, I'm told it wasn't. (Adult 2)

Victims felt it was particularly difficult to explain psychological abuse and its effects, and for this to then be believed and taken seriously. As one adult victim explained:

This new stuff… it's hard to explain that to people, for them to actually understand what is going on, the manipulation kind of sense. (Adult 8)

Victims and witnesses used common language about persistent, relentless, overwhelming, psychological abuse. Whilst for some this was direct threats, verbal abuse, name calling, mind games in person, for many the means was constant abusive phone and online communication - 'just abuse after abuse via messages' (Adult 8)^[45] . As cases progressed, victims spoke about perpetrators using social media and physical actions/surveillance from a distance to cleverly and subtly let them know they were at risk, being watched, and under the perpetrator's control. This woman and child lived under constant threat and were followed often:

Nobody would believe, it's extreme stuff. But stuff that you would think, 'This woman's absolutely lost her mind.' But he knows how to… He was flashing lights in as well, to my bedroom. I couldn't prove that, so they were like, 'What you'll need to do is you'll need to try and prove that,' …this is him still telling me that he's still watching me. (Adult 7)

Many felt, and some were told by police officers, that unless there was a direct physical threat it was not deemed serious enough to take further within the criminal justice system. It was particularly difficult for victims to explain and convince others, the police and their social networks, of the serious 'effects' of this behaviour on their lives, even though these reflected the relevant effects of DASA (S2(3)(a-e)) such as controlling, humiliating and isolating the victim. The most common effect was frightening the victim, with several participants reporting feeling scared to leave their house. Several spoke about coercive control of their time, activities and movement. This illustration speaks of the draining effect of such abuse:

It takes it out of you, it really does … always kind of need to be one step ahead. Just right, if I do this how's he going to react to it? Or if I make too much of a mess… (Adult 13)

Many of the victims spoke about intense stalking behaviour, but just two mentioned specific stalking charges (one using DASA, one using the offence of stalking, S39 of the Criminal Justice and Licensing (Scotland) Act 2010 )^[46]. A significant number of victims were hypervigilant, with some undertaking their own surveillance of the perpetrator to gather evidence or/and to deter him. Many undertook intense safety planning every day (such as changing routes to work/school or varying walking routes during lockdown). For some participants this continued during and post the court case, as exemplified by one adult victim:

This was relentless, this was every time I walked out the door. And then he appeared again, he was coming up beside me, he was doing all this mad stuff. I 'phoned the police and the police were like, 'There's no evidence.' They said, 'You need a dashcam.' … Things just kept going. And I wouldn't go out the house until I got these cameras in my car. It's just horrific. (Adult 7)

Phone and online abuse seemed particularly difficult for the system to deal with, despite many victims using multi-media avenues to collect 'evidence' of messages, videos, emails, posts. A number of victims spoke of tens and hundreds of messages, often every day, sometimes within an hour. DASA charges were applied in some cases and the Communications Act^[47] was mentioned by a few participants (though featured in only one case record). Participants spoke of common responses by police and other professionals, that minimised the issue and most often told them to block and ignore. It was particularly difficult to speak of and prove indirect and veiled threats that were common and terrified victims. Some perpetrators' abusive behaviour included sharing of intimate photos or films. Victims' feelings about this and their fears about this being shared with friends, families, children, workmates echoed the legislative wording: 'frightening, humiliating, degrading or punishing [the partner/ex-partner]' (S2(3)(e)). For example, one victim described:

[Perpetrator name]'s put up some naked photos of you on Facebook, and I was like, for goodness sake. Now… I work in ... a male environment, and [Perpetrator] … for the same … company, so all his friends were my colleagues, so most of my colleagues have seen my naked photos. (Adult 1)

Third party abuse

The DASA Section 1 offence is framed as one of abusive behaviour towards a partner or ex-partner in order to refer to the specific dynamics of domestic abuse (in marriage, civil partnerships, intimate personal relationships) that differ from abuse in the family^[48]. Abusive behaviour directed at another person is an offence in the Act (S2(2)(b)) but only insofar as it effects the victim. Many participants spoke of third parties being subject to abusive behaviour from the perpetrator: family members especially but also friends, neighbours, workmates. Participants spoke of the importance of the third party being protected and recognition that the other person also suffered fear alarm and distress in particular but also some 'relevant effects' such as control, isolation, humiliation. This is not recognised in the offence unless effects are on the victim - the partner/ex-partner (though criminal behaviour to others can be prosecuted as a separate offence^[49]). How third parties are included or not in the victims' justice process was confusing to study participants who felt these people were an integral part of the whole picture of domestic abuse. This is exemplified by the following victim:

All the death threats as well. I don't know why that didn't even get put into a charge because the fact that he had threatened my mum and my…my life and my mum's life and my dad and my daughter's. (Young Complainant 1)

This abuse of others often escalated if protective measures were in place for the victim (e.g. phone calls blocked, protective orders, house move) and the perpetrator could not directly abuse them so easily. As one young complainant explained after being moved to refuge due to abuse during the court process:

… If you know that he doesn't know where I stay, your next concern should be my mum and dad because he knows where they stay. (Young Complainant 1)

The Act's definition of abusive behaviour includes making use of a third party to harm the victim or behaviour to property (S10(3)); the Explanatory Notes specify that property includes pets (para 53). Examples of such behaviour were common in participants' accounts. For example, study participants report abusive and threatening behaviour from a number of family members (e.g. adult son or mother in-law), using others to contact the victim when the perpetrator was ordered not to do so, and/or using others social media accounts to abuse the victim. There were numerous threats to property, including to belongings (children's belongings, phones, etc.), vandalism of parents' property or setting fire to property and a couple of instances of cruelty and threats to pets. Such threats or actions instilled significant fear into victims, families and children. As one adult victim explained:

They [perpetrator and his mother] were just so horrible to me and it was so frightening… he trashed my house, he smashed the wall… I felt as soon as I had [baby] in my arms, I just had to protect him. (Adult 8)

A number of victims expressed concern for past and future victims of the same perpetrator and did not know what to do with this information; this included perpetrators grooming young girls as well as adult women. One victim decided to speak to the Caledonian perpetrator programme worker about her concerns about the risk the perpetrator posed:

…there was so much in the court I couldn't talk about, I wasn't allowed to talk about. The predatory kind of behaviour that he has, the dislike to women, you know, concerns me. He's got no empathy when he does anything, and it's all quite scary… you read the articles like the Sarah Everard, and stuff, there's a sexual element to it with the domestic, and I could see [Perpetrator] being, maybe not at that level, but I can see it progressing. (Adult 4)

Reflecting Harm to Children

The Act's introduction of the 'aggravation in relation to a child' (S5) aimed to recognise how serious it is for a perpetrator to involve children in an offence, and that children are 'adversely affected' by living with domestic abuse. This involves courts hearing evidence about how the child is likely affected by abuse, court decisions taking account of that, and an order for protection after the court case that can now include children (Non Harassment Order – restricting what the perpetrator can do). Most parent and child participants had little awareness of this aspect of the Act and a common perception was that the law did not cover children at all:

I think that's a really important point about the new law, emotional abuse and fear and alarm and distress, all of those things should be covered, so I'm sorry they didn't use that for [Victim's Son]…it doesn't actually cover children. (Adult 4)

Participants spoke of children being adversely affected in all 10 DASA cases where the adult complainant had children (10 of 12 DASA cases in this study), as did all parents in the DA aggravated cases (a further 6 cases); affects illustrated graphically through the child cited witnesses' testimony. In just one of the 10 DASA cases involving children the S5 child aggravator was applied^[50]. When discussing this new provision with interviewees they were at a loss as to why this was not used in their case. In three of these DASA cases the NHO included a child (or children) as well as the adult victim; others concurred with the parent who said 'I just wish my daughter was included in the order' (Adult 5) as discussed in Chapter 6. Parent victims and child witnesses across the study expressed concerns as to the limited extent in which the harm to children was recognised through the justice system; even though these cases involved 10 child cited witnesses overall.

When informed of the aggravator and what it covered, participants felt that it accurately reflected their experiences and could provide an important recognition of harm. Each element of the aggravation (S5(2)-(4)) was reflected in the following illustrations given by parent and child participants in the study.

Section 5(2) of the Act includes behaviour directed at a child and making use of a child to direct behaviour at the non-abusive parent, which was found to accurately reflect the experience of all mother and child participants in the study (whether or not they were DASA cases). Child participants spoke of perpetrators abusing them in front of their non-abusive parent, threatening and violent behaviour scaring the whole family and surveillance tactics through children aimed at controlling/finding the mother. Mothers spoke of abusive behaviour towards their children that frightened, degraded, controlled them and restricted their freedom of action^[51], reflecting the 'relevant effects' of the Act (S2(3)(a)-(e)).

He was getting my two-year-old to call me a cow and a slag and just laughing away and absolutely loving every minute of what he was doing. (Adult 13)

Participants reported an array of ways in which children saw or heard or were present (S5(3)) at multiple 'incidents' of mental and physical abuse over time; none spoke of one incident, some spoke of an escalation in relation to behaviour involving children. All mothers and children spoke of the perpetrator 'causing the child to suffer fear, alarm or distress' (S5(10)); they described babies up to adult children experiencing this. Some described a number of children being harmed in different ways, illustrated by this quote:

… He nearly killed me. But it was in front of my daughter. My daughter was trying to drag him off me and smacking him and punching him and screaming to get him off me. And it happened in front of his mum and like the two younger ones were sitting in the room at the time… was just a pure burst of rage and I just knew for a fact like if I don't stop it now, even though we're not together, if I don't stop it now, he's not going to stop. (Adult 6)

Finally, the S5 aggravator covers a course of behaviour (or an incident forming part of a course of behavour) that a reasonable person would consider likely to 'adversely affect' a child usually residing with one of the partners (or both) (S5(4))^[52]. Most parent and child participants felt children were adversely affected by the perpetrator's abusive behaviour, including babies 'sensing' distress, young children feeling unable to leave their mothers, children and teenagers suffering from stress and anxiety, some children's sleep and continence being negatively impacted, and children living in a state of fear and alarm. Mothers in the study described efforts to maintain care, education, well-being and basic needs of their children that were continually thwarted by the perpetrator's abusive behaviour and its effects:

He [her son] escapes school to come back here 'cause he thinks that he needs to keep me safe. And he's only [young]. (Adult 11)

In summary, the aggravator reflects parent and children's experiences; it is not clear why it was not used in all DASA cases in this study where there were children. For any of these elements to be proven, one single source of evidence is required, not necessarily from the child (although several cases involved child cited witnesses). Whilst parents and child victims and witnesses reported numerous professionals (and other adults) being aware of the adverse effects of domestic abuse on the child's general wellbeing, education and development, they did not report health or education professionals being involved in the court case.

Both child and adult participants in this study felt that the perpetrator was not held sufficiently accountable for harm to children nor was it adequately recognised that they experienced abuse together. They commonly spoke of abusive behaviour towards the whole family: how they both/all experience abuse, sometimes in different forms but with common, ongoing shared elements such as the abusive behaviour causing ongoing fear, alarm and distress. Here this is succinctly described by one participant:

[my son] suffered when I suffered …it does impact the entire family that's under the one roof (Adult 3).

Ways forward from participants' perspectives

Increase public and professional awareness of DASA and what amounts to criminal behaviour.

Enhance DASA implementation in relation to course of conduct, psychological abuse, third parties and harm to children.