Claire Thomas: Proposed addition to Domestic Abuse law is not about physical damage, but mental

Claire Thomas is a solicitor at BLM
Claire Thomas is a solicitor at BLM
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IN its Christmas 2017 campaign, Police Scotland’s message to the perpetrators of domestic abuse is quite clear: “We’re coming for you.”

The bleak film at the heart of the campaign features a woman in stark close-up. “You brought this on yourself,” she says. “You’re worth nothing.” And, as the camera peels away to reveal her to be a police officer: “You’re going to get what’s coming to you”.

The campaign was launched in anticipation of a festive spike in domestic abuse incidents: in the season of goodwill, there is a traditional 25 per cent jump in the number of cases which require police presence. In 2016 into 2017, the nationwide force dealt with an average of 199 domestic incidents daily across the Christmas and New Year period.

What’s particularly interesting about this awareness campaign is that it doesn’t illustrate domestic abuse in a manner that we might have become accustomed to. Abuse here isn’t portrayed as violent assault, there are no black eyes or injuries or trips to A&E. Just words. Harsh ones, but still ‘just’ words.

But as we’re finding, words that bully and humiliate, which control and leave victims scared and feeling isolated, and subtle actions that leave a wife, husband or partner feeling controlled, without freedom to act as they want, dependent and subordinate, are about to become illegal under Scots criminal law.

The Domestic Abuse (Scotland) Bill passed its first hurdle in September. Stage two was completed at the beginning of December. Included in it is a new offence of psychologically abusive behaviour, to plug the gaps in current legislation. If it becomes law, actions not currently classed as criminal – such as depriving a partner of access to their bank account, or disturbing but not necessarily physically harmful psychological ‘mind games’ – could end up in a criminal court of law.

The Bill lays out its definition of what constitutes criminal psychological abuse as: behaviour which causes the victim to be dependent on or subordinate to the perpetrator, that isolates them from friends, family and support; that involves regulating, controlling or monitoring day to day activities, which deprives or restricts freedom of action or which is frightening, humiliating, degrading or punishing.

Some concerns have been expressed; the Law Society of Scotland has queried how evidence of psychological harm might be gathered to obtain a successful prosecution and whether the new law should include a wider circle of people who may be subject to the crime of “abusive behaviour” other than only partners or ex-partners.

It is worth noting that the crime may be constituted by behaviour directed at a child of a partner or ex-partner or at another person insofar as that behaviour affects the partner or ex-partner in terms of psychological abuse. Involving a child is seen by the Bill as an “aggravation” of the crime.

Regardless of whether the Bill becomes law, the issue of psychological, or at least emotional, abuse is already part of the Scottish legal landscape. The Limitation (Childhood Abuse) (Scotland) Act came into force on 4 October 2017, and removed the three-year time limit for bringing a civil claim for damages in respect of personal injuries resulting from childhood abuse.

Its definition of what constitutes abuse is non-exhaustive; it refers to abuse including a wide range of behaviour – sexual abuse, physical abuse, emotional abuse, neglect – without defining those individual terms and leaving open the possibility for additional types of abuse to be added on interpretation of the Act by the Scottish civil courts.

Last year, police in Scotland dealt with more than 58,000 incidents of domestic abuse – up 1 per cent on the previous year. The suggested introduction of psychological behaviour to domestic abuse laws could see domestic abuse cases rise by up to 10 per cent annually.

A timetable for completion of the final third stage of the Domestic Abuse Bill remains to be set.

Claire Thomas is a solicitor at BLM