Learning from the Past, Looking to the Future: Session 1 – Domestic Abuse and the Law

Effecting change in the legal response to domestic abuse

Clare Connelly

Clare Connelly, University of Glasgow, School of Law

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–          Historical overview of where we’ve come from

–          Legal response

  • Until 1970’s limited recognition
  • Over past 40 years seen as an increasing presence in international and national policy
  • 1995 domestic violence designated a human rights issue by U. N. In the Declaration on the Elimination of Violence against Women at Beijing.
    • Highly significant year

–          Who is at risk?

  • Women aged 16-44: violence a major cause of death and disability

–          Domestic abuse recognised as wider than physical violence in the National Strategy definition:

  • Significant and helpful for advocates
  • Provides a legal framework for lawyers

–          Gendered nature of abuse

  • Scottish Executive Research (2002):
    • 6-7% male victims
      •  less severe than that experienced by women

–          Who are the victims?

  • Females most at risk
  • 61% had been repeatedly abused
    • Significant to prove this is a violence that is not one-off
  • Incident of post-separation abuse
    • Civil protection orders
    • Proves that leaving and after leaving can be the most dangerous time for a woman
  • What does it look like?
    • Example of threat to set a woman on fire and repeated episodes of rape
    • Not just physical violence but fear of danger and risk
  • Does not end when the relationship does
    • Some women are relentlessly pursued and the legal offices cannot offer any real effect of protection
    • If you get to the point where the police are concerned for your safely this is not a good place
      • No legal framework in which they can do anything

–          Police Statistics/Scottish Stats

  • 2008-09: 53,931 incidents
  • 2009-10: 51,926 incidents
  • In 2009-10: most common crime or offense was a minor assault (13,740—41%), breach of peace follows as second

–          Homicide

  • Half of women who were killed, was by partner
  • 41%, 16-70, killed by their partner
  • 6% male victims killed by partner (2010 Statistical Bulletin)
    • Often defensive violence; usually a background of domestic abuse in the relationship

–          Legal response

  • No crime of domestic abuse in Scots Law
  • Actins must fall within definition of existing common law crime (criminal side; example: stalking
  • Civil side—range of protection orders
  • Combined with poor policing created by myths and misunderstanding of domestic abuse

–          Protection from Abuse Act

  • Still short comings in police, lawyers views
    • Fiscal wasn’t prosecuting; police not taking action
    • Only handful of cases prosecuted

–          Recent improvements:

  • Joint protocol between CoPFS and ACPOS—zero tolerance
  • Improved investigation (treated like a homicide, example: photographs, witnesses, time frames, etc.)
  • Pro-arrest, no-drop
    • Making a significant difference even of the last 10 years
    • Noticeable culture shift from police engaging with these processes

–          Domestic Abuse Court

  • Successfully increased time between arrest and court

–          Toolkit of specialist response to domestic abuse

  • Dedicated court could not be provided or independent advocacy due to money
  • Recognised as important but not provided
    • Expected people to volunteer impossible
  • Compromise needed
    • Fast-tracking and case clustering means half-arsed attempts, but a beginning
  • Domestic Abuse (Scotland Act) 2011
    • Still more to be done:
      • Course of conduct requirement for filing harassment order should be removed
      • Civil protection should be a crime if breached
      • Needs to be viewed as a breach of human rights
      • Politicians still see everything through economic terms
  • Toolkit
    • Safety
    • Fast-tracking case clustering
    • Criminalised break of interdict

–          Scottish Disposals (12 months to March 2008)

  • Custodial Sentence: 11.5%
  • Monetary penalty: 39%
  • Admonish: 29%
  • Community Sentence: 19%

–          Monetary restraints impeded some women’s ability to seek safety

–          How far we still have to go