Dani Garavelli: Passing the buck does victims an injustice

NO DOUBT Sheriff Lindsay Foulis thought he was doing the right thing when he took the unusual step of giving a woman – who had been repeatedly punched in the face by her former partner – the right to decide whether or not the man should go to jail.

As he rightly pointed out as he heard the case in Perth last week, the offender – Scott McKay – who has two previous convictions for assaulting Natasha Nilssen, has a job in the oil industry which pays £60,000 a year and allows him to pay the mortgage on her home, her bills and child maintenance for their four-year-old son Jake. Sending him to prison would take away her only source of income and leave her in a financially precarious position.

On the face of it, Nilssen, who was too traumatised to attend court, seems grateful to have her opinion taken into account. Although she has four weeks to make a final decision, she has already said she doubts prison would do anything to reform the man who left her with a face so swollen she had was too embarrassed to take Jake to school. Community service would prove more effective, she reckoned, as, not only would he find paying his dues in the public glare humiliating, it would give him a chance to “rehabilitate his attitudes”, while providing for his family.

What a civilised arrangement. Yet what masquerades as one person’s “empowerment” may in fact be another person’s abdication of responsibility. It seems to me all Sheriff Foulis has really done is to shift the burden of a difficult decision from his shoulders to those of the victim. For all his good intentions he has demonstrated not his enlightened attitude towards battered women, but his complete lack of understanding of the psychology of domestic abuse.

It’s hard for those who have suffered violence at the hands of someone they once loved to go to the police, harder still to testify against them in court. They may endure years of abuse before they take the first tentative steps towards breaking free. Even the most determined survivor is likely to feel conflicted about their action. Some may, wrongly, blame themselves for “provoking” the assaults or for putting up with them so long, particularly if there are children involved; others may fear retaliation for having pressed charges. A few may – despite everything – harbour a secret desire for a reconciliation.

Far from helping Nilssen take control of her life, the sheriff has saddled her with one more dilemma, a dilemma he, as a member of the judiciary, is paid to solve. Surely the point of having a judge or a sheriff is to bring a degree of objectivity to proceedings. Emotionally enmeshed as she is in her own predicament, how can Nilssen possibly be expected to take a decision that is guaranteed to serve her own long-term interests, never mind the interests of justice at large? If she takes the decision to send McKay to jail she risks further antagonising her abuser; but if she decides to let him walk free, it will be much harder to separate herself from their shared past.

This is what worries me most about the Perth case. If McKay evades jail so he can underwrite Nilssen’s expenses, then he continues to exert some influence over her; he may be the subject of a court order preventing him from approaching her, but if he is paying the bills, then how easy is it going to be for her to cut him out of her life?

To be honest, I have always had issues with the idea of victim-led justice. Although I agree that it’s appalling that those whose lives have been devastated by an offence are so often written out of criminal proceedings, I think any system which puts victims at its heart runs the risk of being more of a counselling service than a proper court.

Take the trend towards the reading out of victim impact statements. These can be a source of comfort for those who have lost a loved one and they may encourage the offender to confront the consequences of his/her actions. But as a tool to help determine the appropriate sentence to impose they are downright dangerous. There is often very little correlation between the gravity of an offence and the level of distress it causes (think of car accidents where a tiny lapse of concentration results in a fatality). And they create a hierarchy of victimhood. Are those who – by virtue of their education – are better able to articulate their loss more deserving than those with poor communication skills; or those whose loved ones were paragons of virtue less deserving than those with a chequered past?

If it were to become commonplace, handing over the power of sentencing to victims could only further skew the justice system, leading to decisions based on raw emotion as opposed to dispassionate reasoning. In this particular case, it has also given the victim an entirely spurious sense of autonomy and self-determination. Nilssen may believe she has been invested with the power to influence the direction of her own life, but her sense of independence would surely be more justified if, instead of putting McKay back in charge of her finances, he was locked up while she started to build a new, self-sufficient life. In a week when Rihanna has once again been under fire for appearing to condone the abuse she suffered at the hands of Chris Brown, appearing to allow a man who has repeatedly hit the mother of his child to escape jail on the grounds he is a good provider, sends out entirely the wrong message.

Twitter: @DaniGaravelli1