On 1 April 2019, a new piece of legislation came into effect in Scotland. The Domestic Abuse Act makes several fundamental changes to how violence against women and children is defined and prosecuted within the Scottish criminal justice system.
The new law has been informed by survivor experience, making it not only progressive but potentially transformative. It strengthens the power of police and prosecutors to tackle our pervasive problem with domestic violence. It also legally acknowledges what many of us already know to be true – abuse comes in many forms, not all of which leave bruises on bodies.
Scotland’s Domestic Abuse Act changes how abuse is defined, understood and prosecuted in 4 ways:
1. It criminalises coercive control
Coercive control refers to controlling and harmful patterns of behaviour. It can include psychological, emotional, sexual or financial abuse. It may or may not involve physical violence. It’s often systematic and the effects can be devastating. Scottish Women’s Aid report that coercive control is the kind of violence survivors tell them has the most significant impact and is hardest to recover from.
The new Domestic Abuse Act makes coercive control a criminal offence for the first time, meaning that people engaging in patterns of controlling behaviour can now be punished by law.
2. It makes domestic abuse a ‘course of conduct’ offence
This simply means the law will look at domestic abuse cases through a ‘big picture’ perspective. Abusive situations are often made up of long lists of events, moments and actions which take place over periods of time. If each of these were to be looked at individually, they might not seem very serious. However, when many small incidents are pieced together and the accumulative effect considered, the big picture can show a deeply harmful situation.
This is very different from past approaches of treating domestic abuse as one-off incidents that could be pinpointed to certain times on certain dates, like we would for burglaries or traffic accidents. Domestic abuse doesn’t necessarily operate like other crimes and the new law acknowledges that it is often more relevant to consider accumulative behaviour over time.
3. Proof that an individual was traumatised is no longer required
As CEO of Scottish Women’s Aid – Dr Marsha Scott – explains, this is “a terrible thing to have to go into court and prove”. In the past, the law has been criticised for re-traumatising victims and placing unreasonable obstacles in the path to securing a conviction.
Instead of requiring proof that a victim was harmed, the new law requires proof that the accused intended to cause harm. It states that if a reasonable person with access to all the facts would assume that the situation would cause harm, this will be considered appropriate evidence.
4. Children are acknowledged as victims
The Domestic Abuse Act reflects a new understanding within the legal system that it doesn’t matter if children are physically present when abusive behaviour is taking place. If they are in the family, they are a victim.
For the first time, the enormous impact that growing up within an abusive situation can have on a child will be recognised in the law and considered in the prosecution process.
Changes to the structure, wording and focus of domestic abuse legislation create the possibility for us to change the landscape of gender-based violence.
Scotland is a country committed to remaining at the forefront of global gender equality policy – a fact I’m extremely proud of. At the same time, it’s a country where gender definitions remain stiflingly narrow. Traditional understandings of masculinity can make healthy expression of emotion an impossibility for many men, and notions of familial responsibility can leave many women playing out restrictive and isolating roles in society.
The widely-held social belief that what happens behind closed doors is no one else’s business doesn’t help, nor does a very Scottish tendency not to want to ‘make a fuss’. These are pieces in the gender equality puzzle that can’t be fixed by the law. They require education, open conversation and a refusal to continue acting as though the status quo is inevitable.
Gender inequality is both the cause and the consequence of gender-based violence.
Abuse doesn’t always show itself in the ways it does in soaps or films. It isn’t always neighbours calling the police, mascara running down cheeks and black eyes. It can be quiet, and invisible, and soul-destroying.
We have a huge amount of work still to do. But with this new legal framework, Scotland is starting to feel better equipped for the task.