Hansard

Domestic abuse blights the lives of too many people in Scotland. It might not be obvious because, in contrast with many other forms of crime, it is largely hidden, typically occurring behind closed doors and in private. However, it is widespread. In 2014-15, nearly 60,000 domestic abuse incidents were reported to Police Scotland. We know that that is likely to be a significant underestimate of the true extent of abuse. The 2014-15 Scottish crime and justice survey found that only a fifth of those who experienced partner abuse in the previous 12 months said that the police came to know about the most recent incident. That survey also found that 14 per cent of adults have experienced partner abuse since the age of 16, and that 3 per cent of adults have experienced partner abuse in the previous 12 months.

This morning, I had the privilege of meeting staff at Edinburgh Women’s Aid to hear about the vital work that they are doing with women and girls who are affected by domestic abuse. I also met several of the service users and heard of their first-hand experiences. I am grateful to them for that.

Women are disproportionately likely to be victims of domestic abuse. Twice as many women as men report having experienced partner abuse in the previous 12 months, and incidents with a female victim and a male perpetrator represented 79 per cent of all incidents of domestic abuse that were recorded by the police in 2014-15. That is why tackling domestic abuse is a core part of equally safe, the Scottish Government’s strategy for preventing and eradicating violence against women and girls.

Supported by the equally safe justice expert group, the Scottish Government is developing a delivery plan that will deliver improvements to the justice system for all victims of abuse, including women and girls. We are also taking immediate steps to improve the justice system’s response to domestic abuse.

In March last year, the First Minister announced an additional £20 million over the period from 2015 to 2018 to tackle all forms of violence against women and girls and to put in place better support for victims. That money is already being put to good use. For example, it has allowed additional investment to boost resources for our courts and prosecutors by £2.4 million each year in order to ensure that there are no undue delays in court waiting times for domestic abuse cases.

In last week’s statement on our programme for government, the First Minister confirmed that in the coming parliamentary year a domestic abuse bill will be introduced that will make Scotland one of only a handful of countries around the world to have criminalised psychological abuse and coercive control. I will set out how we have arrived at this point and why we think that this new comprehensive domestic abuse offence will improve the justice system’s response to domestic abuse.

As members might be aware, at the Crown Office’s domestic abuse conference in 2014, the then Solicitor General, Lesley Thomson QC, called for the Scottish Parliament to consider the creation of a specific offence of domestic abuse. The case that she made for a new offence was compelling and I pay tribute to her and others, including Scottish Women’s Aid and the advice, support, safety and information services together—ASSIST—project, which have been at the forefront of building support for a new offence.

In her speech, Lesley Thomson said that, in her experience of prosecuting domestic abuse, the existing law does not always reflect the experience of victims of long-term domestic abuse because it focuses on individual instances of threatening behaviour or assault and does not reflect the fact that domestic abuse is often experienced as a pattern of abusive behaviour that is sustained over time.

In March 2015, the Scottish Government published a consultation paper that sought views on whether a specific domestic abuse offence would improve the ability of the police and prosecutors to tackle domestic abuse. The response was clear. The vast majority agreed that the current law does not reflect the experience of victims who experience on-going coercive and controlling behaviour by partners and ex-partners. The collective view of respondents was that a specific offence could improve the justice system’s response to domestic abuse.

The kinds of cases that consultation respondents highlighted as being difficult to prosecute using the existing law are those in which an abuser may not necessarily use physical violence against their partner, or even overt threats, but behaves in a highly controlling and abusive way towards their partner over a long period. Examples of what abusers may do to humiliate their partners are horrendous. For example, abusers may force them to eat food off the floor; control access to the toilet; or repeatedly put them down and tell them that they are worthless. Abusers also try to control every aspect of their partner’s life by, for example, preventing them from attending work or college; stopping them from making contact with family and friends; giving them no or limited access to money; or checking or controlling their use of their phone and social media.

However, where that is not accompanied by physical violence or overt threats—which can often be the case because, for example, the victim is in so much fear that their partner does not need to use threats to exert control—it may be very difficult to prosecute using the existing law in this area. Even where a prosecution is possible, the conviction for that offence may leave the victim feeling that the court process and the sentence imposed do not reflect the reality of their experience of abuse. The perpetrator will have subjected their partner to years of abuse but may have been convicted of only a single instance of assault or threatening and abusive behaviour.

While the vast majority of consultation respondents supported the principle of having a domestic abuse offence, there was a wide variety of views on how such an offence could operate, especially in relation to how coercive and controlling behaviour and psychological abuse in a relationship could and should be defined. While some behaviour is such that any reasonable person would consider it to be abusive, the point at which, for example, belittling comments or an unequal approach to financial decision making within a relationship can be said to amount to psychological abuse or coercive and controlling abuse will depend on the wider context in which that behaviour occurs.

We have worked closely with stakeholders to develop an offence that seeks appropriately and effectively to criminalise the kind of pernicious, coercive and controlling behaviour that I have described, while not inadvertently criminalising what might be described as the ordinary arguments and friction that can occur in many relationships. The approach that we have taken in the draft offence is to provide for a course of conduct offence that covers the whole range of behaviour that can make up a pattern of abusive behaviour within a relationship. That enables the perpetrator’s whole course of abusive behaviour to be libelled in a single charge, allowing a court to consider the totality of the abuse that is alleged to have taken place.

It means that the courts can consider acts that would be criminal under the existing law, such as assault and threats, and psychological abuse and coercive and controlling behaviour, which can be difficult to prosecute under existing law.

The offence is committed when three specific conditions are met. The first condition is that the perpetrator engages in a course of behaviour that is abusive of their partner or ex-partner.

The second condition is that a reasonable person would consider the course of behaviour to be likely to cause their partner or ex-partner to suffer physical or psychological harm.

The third condition is that the perpetrator either intends to cause the victim to suffer harm or is reckless as to whether the course of behaviour causes the victim to suffer harm.

The draft offence provides a definition of abusive behaviour that includes behaviour directed at the victim that is violent; behaviour directed at the victim that is threatening or intimidating; and behaviour directed at the victim or any other person that has as its purpose, or that would be likely to have, one or more of the following effects: making the victim dependent on or subordinate to the perpetrator; making the victim isolated from friends, relatives or other sources of support; controlling, regulating or monitoring the day-to-day activities of the victim; making the victim feel frightened, humiliated or degraded; or punishing the victim. This part of the definition is intended to cover the kind of psychological abuse and coercive and controlling behaviour that it may not be possible to prosecute under the existing law.

The second condition—that a reasonable person would consider that the course of behaviour would be likely to cause the victim to suffer physical or psychological harm—sets the threshold for the offence to be committed.

The third condition—that the accused either intends by the course of their behaviour to cause the victim to suffer such harm or is reckless as to whether the course of behaviour causes such harm—ensures that a perpetrator cannot argue that they are not guilty of the offence solely because they claim that they did not intend to cause harm to their partner.

We are considering the responses that we have received to the consultation and Scottish Government officials have met a number of stakeholders in recent weeks to discuss the terms of the offence. One key issue raised by a number of stakeholders has been that the draft offence does not reflect the impact that domestic abuse can have on the children of an abused partner and the extent to which children can be, in effect, secondary victims of partner abuse. We are considering very carefully what changes may be needed to reflect this feedback.

We think that it is important to remember that it is a long-standing offence for any person to abuse or neglect a child in their care. Alongside that existing offence, we want to ensure that the new offence operates so as to ensure that the impact of domestic abuse on children is recognised. Some stakeholders have also highlighted the need for additional protections for victims and we are considering what more may need to be done in that area.

We are seeking to introduce a domestic abuse offence that will make Scotland one of the first countries in the world to criminalise psychological abuse and coercive control of a partner or ex-partner. We think that there are clear benefits to introducing a new, comprehensive domestic abuse offence that will provide clarity for victims; send a clear signal that what their partner or ex-partner has done to them is not only wrong but criminal; improve the ability of the police to intervene in specific cases; and change societal attitudes to what it is that amounts to domestic abuse: that it is not only physical violence but psychological abuse, because exerting total control over a partner’s every movement and action and forcing them to live in constant fear is criminal and unacceptable in our society.

I will listen with interest to the contributions made in the chamber this afternoon and I look forward to working with the Parliament to ensure that the offence is as effective as it can be in tackling the scourge of domestic abuse in Scottish society.

I move,

That the Parliament welcomes the announcement by the First Minister when delivering the 2016-17 Programme for Government that the Scottish Government will introduce legislation to create a specific criminal offence of domestic abuse; recognises that, in Scotland, there are approximately 60,000 incidents of domestic abuse reported each year, with the 2014-15 figures showing that 79% of such incidents having a male perpetrator and a female victim; recognises that, while physical abuse can be prosecuted under existing laws, it is challenging to prosecute psychological abuse and coercive and controlling behaviour under these; agrees that a new offence will both help the criminal justice system to deal more effectively with domestic abusers and, alongside access to appropriate advocacy services, allow better access to justice for victims, and notes that the Scottish Government is continuing to consider the exact terms of such an offence in the light of feedback to the recent consultation on a draft offence with the aim of ensuring that it appropriately and effectively criminalises the type of pernicious coercive and controlling behaviour that can constitute domestic abuse and that such an offence will have a significant impact on how society views domestic abuse by ensuring that there is clarity that psychological, as well as physical abuse, of a partner or ex-partner is a criminal offence.