Stage 3 debate: Domestic Abuse (Scotland) Bill
Delivered by Michael Matheson, Thursday 1 February, 2018
Presiding Officer, I would like to begin this Stage 3 debate by thanking the members and clerks of the Justice Committee, the Finance Committee and the Delegated Powers and Law Reform Committee for their diligent consideration of the Domestic Abuse (Scotland) Bill.
I would also like to thank those who have taken the time to engage in the Bill process and share their knowledge, experience and views during the scrutiny process.
In particular, I applaud the courage of the individuals who shared their own personal experience of suffering domestic abuse with the Justice Committee to assist their consideration of the Bill and help this Parliament gain a fuller understanding of what it is actually like to experience domestic abuse.
Presiding Officer, I think this chamber will recognise that attitudes towards domestic abuse have changed considerably since the Scottish Parliament was established back in 1999.
Back then, there was still a mindset, including among some who worked within the justice system, that domestic abuse, especially where it did not involve physical violence, was a private matter and no business of the police or the courts.
Attitudes have changed.
And one effect of this has been that, as victims have become more confident that they will be taken seriously and more willing to come forward to the police, the true scale of domestic abuse in Scotland has become more apparent.
In 2016/17, nearly 59,000 domestic abuse incidents were reported to the police.
However, we know that even this is likely to be a significant under-estimate of the actual scale of domestic abuse.
The 2014/15 Scottish Crime and Justice Survey found that, of those who had experienced domestic abuse in the previous 12 months, around 20% stated that the police came to know about the most recent incident.
This is in contrast with a reporting rate of 38% for all crimes in that survey.
Presiding Officer, I think it is right that we should also reflect on the changes to attitudes that have happened and are happening as this Bill has been proceeding through Parliament.
The metoo hashtag, which is shining a light on the experiences of all too many women across the world, only demonstrates further the need for this Bill.
While it is the case that attitudes to domestic abuse have changed and as a society we have a fuller and richer understanding of what domestic abuse is, the criminal law used to prosecute perpetrators of domestic abuse has not reflected that understanding.
I pay tribute to Lesley Thomson who as the Solicitor General led from the front in publicly calling for a new criminal law approach to domestic abuse.
Presiding Officer, it is worth recalling why she made that call.
She said that in her experience of prosecuting domestic abuse, the way that the existing criminal law focused on individual incidents of assault or threatening or abusive behaviour was misguided.
This is because it did not reflect the way that victims actually experience domestic abuse, as an on-going course of abusive behaviour that is sustained over time, and not simply as a few isolated incidents.
Responses to the subsequent Scottish Government consultation made clear that there was a gap in the law in that it was very difficult to prosecute cases in which an abuser behaves in a highly controlling, manipulative and abusive way towards their partner over a long period of time without using physical violence.
Examples of the kind of behaviour that perpetrators may engage in are harrowing.
Behaviour intended to humiliate or degrade their partner such as:
- Abusive name calling
- Sharing of private information
- Being made to eat food off of floor or from pet dishes
Perpetrators may also try to exert control over every aspect of their partner’s life such as:
- Preventing contact with family or friends or checking and controlling their use of their phone or social media;
- Stopping them from attending work or college
- Making unreasonable demands whether that be:
- about food preparation,
- where the victim needs to be and when, or
- what the victim was allowed to wear.
These actions will not necessarily be accompanied by physical violence or overt threats, because the perpetrator knows that the victim may be in such fear of their partner that they do not need to use physical force or overtly threaten them to exert horrendous control over them.
Even where a prosecution is possible using the existing laws, a conviction for a single incident of, for example, assault, or threatening or abusive behaviour may leave the victim, quite rightly, feeling that the court process and the sentence imposed did not reflect the seriousness of the abuse – the background of long-term psychological abuse and controlling behaviour - that they have suffered.
This is what we are addressing through the new offence of domestic abuse.
The offence modernises the criminal law to reflect our understanding of how victims experience domestic abuse.
It does this by providing a specific offence that is intended to be comprehensive in that the abuse can be prosecuted as a single offence, ensuring that the court considers the totality of the abuse that it is alleged the victim has experienced.
It will enable 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 that can be difficult to prosecute using the existing law.
The Justice Committee heard evidence from stakeholders which identified a number of ways in which the Bill could be improved.
Scottish Women’s Aid highlighted the importance of providing extra-territorial jurisdiction for this offence and we amended the Bill at Stage 2 to do so.
As this is a ‘course of conduct’ offence, it is possible that, in individual cases, abuse may occur across a long period of time and in more than one jurisdiction. The Bill now caters for that.
Groups representing the interests of children asked us to consider how the child aggravation could better reflect the harm experienced by children growing up in an environment where their parent or carer is being abused, irrespective as to whether they see, hear or are present when the abuse is taking place, or whether the abuser directs behaviour at the child, or tries to involve the child in the abuse.
So we widened the scope of the child aggravation at Stage 2 so that the aggravation can be proven if a reasonable person would consider that the perpetrator’s course of behaviour, or an incident forming part of that course of behaviour, would be likely to adversely affect a child who lives with the victim or perpetrator.
This has been warmly welcomed by key stakeholders.
This means that the aggravation can apply where, for example, the perpetrator’s controlling behaviour has the effect of isolating a child, as well as the primary victim, from friends, family or other sources of support.
Or where abusive behaviour undermines the non-abusing parent or carer’s ability to look after the child – for example by restricting their access to transport, limiting their ability to get a child to a doctor’s appointment, or restricting their access to money, limiting their ability to provide essentials for a child.
Presiding Officer, I am not under any illusion that creating a new offence of domestic abuse will, on its own, end domestic abuse.
Changes to the mindsets of the men who perpetrate domestic abuse will take a generation or more. Only once it can be said that women are treated equally within our society can we be confident that we are on our way to eradicating domestic abuse.
It is heartening to see the pace of change with the #metoo movement emerging during the scrutiny of this Bill as an example of what we all hope are seismic shifts in society’s views on how women are treated within society.
I am proud to have led the development of this Bill through Parliament. This is a momentous day as our laws will be changed in a way that reflects the experience that all too many women have suffered in terms of domestic abuse.
While I am under no illusion that laws alone can address the issue of domestic abuse, laws do have a key role to play and this Bill will, once implemented, allow our justice system to deal more appropriately with domestic abuse.
I move that the Parliament agrees that the Domestic Abuse (Scotland) Bill be passed.