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28/09/17 15:27

Stage 1 Debate - Domestic Abuse (Scotland) Bill

Cabinet Secretary for Justice Michael Matheson

Statement to Parliament, 28 September 2017

Presiding Officer, everyone in this Chamber is aware that domestic abuse blights the lives of too many people in Scotland.

It might not be obvious because it is largely hidden, often occurring behind closed doors and out of sight.

But we know that it is widespread.

The numbers of incidents are truly shocking.

It is likely that everyone in the chamber, even if they don’t know it, is likely to have family or friends who have been abused or are being abused by a partner or an ex-partner.  

In 2015/16, nearly 60,000 domestic abuse incidents were reported to the police.

And that is likely to be a significant under-estimate of the true extent of domestic abuse.

In 2014/15 the 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 knew about the most recent incident.

And 14% of adults have experienced partner abuse since the age of 16.

Presiding Officer, anyone can be a victim of domestic abuse and it is most definitely not restricted to one gender, one class or urban or rural area of the country.

However, we know that women are disproportionately likely to be victims of domestic abuse.

Twice as many women report having experienced partner abuse in the previous 12 months as men.

And incidents of a female victim and male perpetrator represented nearly 80% of all incidents of domestic abuse recorded by the police in 2015-16.

Presiding Officer, we as a Parliament and as a society have moved a long way in our understanding of domestic abuse since the Scottish Parliament was established in 1999.

I was a founding member of the Justice and Home Affairs Committee in this Parliament. I well remember key stakeholder groups such as Scottish Women’s Aid coming to that Committee seeking to explain why steps were needed to tackle domestic abuse.

Back then, it was sadly the case that too many in our society saw domestic abuse solely in terms of physical violence, and crucially, there was also an attitude within some parts of society that it was a private matter, and no business of the police or anyone else.

Time has moved on and attitudes have thankfully evolved.

Our modern understanding of domestic abuse, shaped by the experiences of the women affected and the groups that help them, is now such that we know domestic abuse is commonly experienced as a pattern of abusive behaviour that is sustained over time.

It can take the form of physical violence, or even overt threats, but it also can take the form where an abuser may behave in a highly controlling, coercive and abusive way over a long period of time.

The Domestic Abuse (Scotland) Bill is this Government’s and this Parliament’s next important step in the fight to address the scourge that is domestic abuse.

Presiding Officer, this Parliament has already taken action to reform the criminal law concerning domestic abuse.

In 2010, this Government ensured that what might be described as the ‘traditionally understood’ form of domestic abuse prosecuted using common law breach of the peace could continue to be prosecuted using a new statutory offence of threatening and abusive behaviour. This followed a court judgment which called into question the scope of the offence of breach of the peace.

This Parliament has also legislated to create an offence of stalking, which can on occasion be relevant in cases of domestic abuse.

However, notwithstanding these reforms, it is clear that the criminal law does not fully reflect what domestic abuse is in all its forms as our modern understanding reveals.

As many of you will know, the then Solicitor General, Lesley Thomson QC called on the Scottish Parliament to consider the creation of a specific offence of domestic abuse in 2014.

She said that in her experience of prosecuting domestic abuse, the existing criminal law did not always reflect the experience of victims of long term domestic abuse.

The explanation given was because the law focuses on individual instances of, for example, threatening behaviour or assault, and does not reflect the fact that domestic abuse is commonly experienced as a pattern of abusive behaviour that is sustained over time.

The kind of cases which stakeholders have highlighted as being difficult to prosecute using the existing law are those in which an abuser behaves in a highly controlling, manipulative and abusive way towards their partner over a long period of time.

Examples of what abusers may do to humiliate their partners are horrendous:

  • Forcing someone to eat food off the floor
  • Controlling access to the toilet
  • Repeatedly putting them down or telling them they are worthless.

Abusers can also try to control every aspect of their partner’s life, for example:

  • Preventing them from attending work or college
  • Stopping them making contact with their family and friends
  • Giving them no or limited access to money
  • Checking or controlling their use of their phone or social media

These actions can often not be accompanied by physical violence or overt threats because the abuser knows that the victim may be in so much in fear of their partner that they do not need to take physical or threatening action to exert control.

This behaviour can be very difficult to prosecute under our existing law.

And even where a prosecution is possible, a conviction for example, for an incident of threatening or abusive behaviour may leave the victim feeling that the court process and the sentence imposed did not reflect the reality of the abuse they experienced.

Presiding Officer, the centrepiece of the Bill is a new offence of domestic abuse.

This new offence modernises the criminal law to reflect our understanding of what domestic abuse is by providing for a specific offence that is intended to be comprehensive so that abuse in its totality can be prosecuted as a single offence.

It is a ‘course of conduct’ offence which enables the entirety of the perpetrator’s abusive behaviour to be included in a single charge.

This:

  • allows the court to consider the totality of the abuse that is alleged to have taken place, and
  • enables the court to consider both behaviour which would be criminal under the existing law, like assault and threats, and psychological abuse and coercive and controlling behaviour which can be difficult to prosecute under our existing law

Crucially, the way the offence works is to both criminalise certain specific behaviour such as violent behaviour and also criminalise other types of behaviour by reference to the effect it has on the partner or ex-partner.

So, for example, the offence seeks to cover behaviour such as unreasonably restricting access to money by reference to the fact this may make the partner feel dependent or subordinate to the perpetrator.

Presiding Officer, children too are harmed by domestic abuse.

Where a parent is being abused, this always brings harm to the child whether directly from the child witnessing the abuse or indirectly where a child is affected by the effect it has on their parent.

In line with the long-established definition of domestic abuse, this Bill is about creating a new offence of domestic abuse between partners or ex-partners.

And the harm to children is acknowledged through the new statutory aggravation – so where children are involved this can be reflected by the court when sentencing the perpetrator.

I welcome the Justice Committee’s Stage 1 report which supports the general principles of this Bill.

I would also like to take this opportunity to thank those organisations, and in particular, those individuals – who shared with the committee their personal experiences of suffering domestic abuse - who gave evidence to the Committee to assist their consideration of the Bill.

The Committee have raised a number of important issues, including:

  • how we might expand the scope of the power to impose Non-Harassment Orders to provide protection to the children of the victim,
  • the proposal to create “Emergency Barring Orders” which would ban a perpetrator from a victim’s home and
  • issues concerning the interaction between criminal domestic abuse cases and the civil child contact cases.

The Scottish Government has responded to the Stage 1 report recommendations and I will of course listen carefully to the views offered on these issues in today’s debate ahead of Stage 2 of the Bill.

And on the specific issue of non-harassment orders, I can advise that the Scottish Government intends to bring forward amendments at Stage 2 to improve the Bill in respect of additional protections for children.    

In conclusion, creating a new offence of domestic abuse will not, on its own, end domestic abuse. However, it is a ground-breaking approach that will put Scotland at the forefront of efforts to tackle the scourge of psychological abuse and coercive control.

The new offence will:

  • provide greater clarity for victims, sending a clear signal that what their partners do to them is not only wrong but criminal
  • improve the ability of the police and prosecutors to intervene in specific cases, and
  • change societal attitudes about what domestic abuse is – that it is not only physical violence, but also psychological abuse, exerting total control over a partner’s every movement and action, forcing them to live in constant fear.

For too long, an attitude has been allowed to linger that domestic abuse is a private matter, no business of the criminal law. This Bill makes crystal clear those days are long gone.

I move the motion in my name.