Scottish Government

An Evaluation of The Protection From Abuse (Scotland) Act 2001

CHAPTER THREE: THE EVIDENTIAL BASIS FOR LEGAL ACTION

3.1 In this chapter we examine the nature and extent of the violence and abuse perpetrated by defenders upon pursuers and some of the ways in which these behaviours are both construed and explained. In order to do this we present data from 4 separate sources -qualitative and quantitative data from the court records, women's questionnaires and interviews with professionals.

3.2 Before proceeding to present this data, we contextualise the legal action taken by all pursuers in the civil court records in relation to the behaviours and circumstances prompting the action, namely domestic violence and abuse. We do this in order to foreground the social problem of violence against women, which the law has, in recent years, endeavoured to 'do something about'. However, any discussion of the effectiveness of legal action and processes must ensure that the violence perpetrated by men on women is fully considered alongside any legal action a woman might take to remedy her situation. By so doing, we are less likely to lose sight of the phenomenon under investigation and the legal responses to it. It is critical that the latter are based on a comprehensive and informed understanding of the former, particularly the gendered nature of the problem. In Scotland the latter is recognised, demonstrated by the definition of domestic abuse used within the National Strategy which includes physical sexual and emotional abuse and which importantly "… is associated with broader inequalities in society," and "… is part of a range of behaviours constituting male abuse of power," (Scottish Executive 2001:46). Furthermore, the National Strategy states:

"The existence of violence against men is not denied nor is the existence of violence in same sex relationships…but domestic violence requires a response which takes account of the gender specific elements and the broader gender inequalities which women face." (National Strategy 2000:5)

3.3 It is important to note further that in a study of domestic violence against men commissioned by the Scottish Executive, the researchers concluded that:

"...in general male victims experience abuse that is less frequent and less severe than that experienced by female victims…The research reported here found little evidence ...to suggest that there is presently a need for a new agency whose specific remit is to support male victims of domestic abuse in Scotland." (Gadd et al, 2002)

3.4 Thus, in this study, it is not surprising therefore that: (a) in 120 of the 123 civil court records examined, the victims were female ¹³ (b) all of the postal questionnaires returned had been completed by women (c) all of the criminal cases related to female victims of domestic abuse and (d) professionals interviewed variously indicated that the victims were typically (though not exclusively) women. Therefore throughout this report references to pursuers/victims will use female pronouns.

3.5 For the purposes of this study it is important to articulate the erroneous belief that the violence and abuse stops when the woman leaves the relationship. By far the majority of the women in this study sought legal protection having left their intimate relationship (certainly at the time of the application with many having left and returned a number of times previously). Thus many of the applications are based on evidence cited in relation to instances of violent and abusive behaviours, which have occurred both before and after separation and as much research (cited in Chapter 1) indicates, this can be a particularly dangerous time for women.

3.6 Many of the abusive experiences of the women in this study were reported in the court records and it is important to report on the frequency and severalty of some of these behaviours. The following qualitative data ¹⁴ describes the nature and extent of the physical, emotional and sexual abuse perpetrated upon pursuers by defenders while both were still inhabiting their intimate relationship.

THE GENERAL VIOLENCE

229: 'There is a substantial history of extreme violence by the defender…on numerous occasions over the past years,' which included two occasions of pouring flammable liquid over the pursuer and lighting a lighter as he walked around her threatening to set her on fire.'

230: 'The defender has raped the pursuer on a numerous occasions.'

234: From the start of the relationship, 'the catalogue of assaults by the defender on the pursuer are numerous. He has been verbally abusive on a daily basis, assaulted the pursuer on at least 2 or 3 occasions per month since the parties were married. He threatened that if the pursuer ever went to the police he would kill her and remove the children from her care and control. He further advised the purser that he would kill the pursuer in front of the children.'

12: The defender has an unpredictable disposition. He lost his temper easily. "He frequently vandalised the matrimonial home by punching holes in doors and walls…He would kick the family dog. He regularly consorted with other women. He had little respect for the pursuer, often referring to her as a bitch or a slapper. The defender frequently assaulted the pursuer throughout the course of the marriage. He would punch the pursuer. He would slap her. He would pull her hair. On one occasion "he knocked out one of her front teeth." On another occasion he attacked her and hit her about the head with a stiletto heel, which resulted in her permanently losing her hearing."

13: On one occasion "he [defender] tried to break the pursuer's leg with a hammer and tried to throttle her." On another, "he took a knife from the kitchen and threatened to kill her."

20: "During the relationship the defender was habitually verbally abusive and aggressive towards the pursuer calling her vulgar names on a daily basis and threatening her with violence." She refers to one incident in 1999 when the defender "grabbed the pursuer by the throat and pushed her up against a wall. He attempted to strangle her."(in condescendence)

12: "…the defender is a large, physically imposing man with a violent temper. Throughout the course of the marriage he frequently threatened to murder the pursuer if she ever left him."

23: "The defender has been violent towards the pursuer throughout their relationship. The defender is a very possessive and jealous person…The defender has punched and kicked the pursuer on the head and body on many occasions. The pursuer is terrified of the defender… the pursuer required to seek refuge at a Women's Aid hostel due to the defender's violence towards her. The pursuer managed to obtain her own tenancy. The defender subsequently found out her new address by following her." (in condescendence).

3.7 The above quotes highlight several themes: firstly that the violence perpetrated on women is often severe and that such violence may be experienced frequently throughout the relationship; secondly, the violence and abuse may often begin once the relationship is formalised though marriage; thirdly that men's threat of further violence should the women seek legal protection may be a feature of violent relationships; and fourthly that even when still together, some men may use threats to kill the pursuer should she indicate her intention to leave the relationship, findings which replicate the findings of much other research (Dobash et al 2000; Campbell et al 1992; Wilson and Daly 1990).

3.8 That such violence and abuse continues to occur within the context of intimate relationships is as shocking as it is paradoxical. The continuing struggle to eliminate such coercive and controlling behaviours requires effective interventions from both the civil and criminal justice systems which are cognisant of the social context within which violence and abuse occurs.

Post separation violence and abuse

3.9 Within already violent relationships, separation from a violent partner is often the trigger to a series of further abusive behaviours oriented, more or less, towards intimidating the partner and persuading her to return to the relationship. As discussed earlier, even when still living together, many men use threats of violence and abuse to coerce and intimidate, should women consider leaving an abusive relationship. The following are some quotations taken from the qualitative case file data ¹⁵ demonstrating a range of post separation abuses experienced by women.

3.10 Disfigurement

208: Since separation in 2000 the pursuer has suffered continual verbal and physical harassment, physical abuse and text message harassment. Initial writ states, "I will make sure U are scarred for life you fuckin' shitebag." A later message stated, "remember who is to be scarred for life."

3.11 Threats and demands

236: The pursuer alleges after separation that the defender has become abusive about obtaining property and about contact with his son. "The defender has frequently attended at the pursuer's home in a drunken state and demanding contact with his son. He has also telephoned the pursuer's work and these telephone calls have caused the pursuer a great deal of alarm and distress. In Dec 2001 he threatened that "things would turn nasty."

237: On one occasion post separation the defender assaulted the pursuer and threatened her, "You'll never get your fuckin' kids. It'll be over my dead body or yours."

3.12 Jealousy

9: "The defender accused the pursuer of having an affair and advised her that if he could not have her no one else could. He told the pursuer he would keep beating her until he killed her" (in condescendence).…Pursuer then told defender she would not tell anyone he had assaulted her if he would then stop doing so.

3.13 Monitoring and Surveilling (stalking)

211: After many years of abuse, pursuer leaves relationship to live with family. She obtains her own tenancy and stalking by defender ensues. He hires a private detective to ascertain her new tenancy, monitors and surveills her movements, and sends threatening letters. The letters (included in the process evidence) state, "My aim is to give you a nervous breakdown and I'm not nearly finished yet, keep looking over your shoulders, and sleep well."

228: After separation, "the defender began telephoning the pursuer and coming to her house…after weeks his phone-calls became obsessive in nature. When the pursuer requested that he reduce the length and frequency of calls, "…he subjected her to a course of threatening and abusive behaviour." He threw a concrete slab through the pursuer's window.

14: Following separation the defender has been "stalking the pursuer. As a result of his actions the pursuer rarely stays within her home during daytime hours. The defender…regularly monitors the movement of the pursuer and other family members. The defender regularly telephones the pursuer on her mobile telephone…on occasion up to 100 times per day." When the pursuer does not answer, the defender leaves messages advising her that she is a "dirty cow," "a dirty slapper" and enquiring "who are you sleeping with now?" (in condescendence)

3.14 Death to pursuer and/or pursuer's child

16: Following separation, the defender continued to physically and verbally abuse the pursuer, he would regularly state that he would "see her in a box" and he would "cut her throat." Recently he has informed the pursuer that she would be "cutting her own throat" if she went to see a solicitor and that she would be "signing a death warrant" if she proceeded with the court action against him.

234: The defender saw the purser's son in the street and threatened that he was "getting it" and his mother was "getting done in." The defender found the pursuer in the street and subjected her and her friend to a very serious assault punching and kicking the pursuer to the ground three times. He was screaming that he was going to kill her and her son and that the pursuer's son would, "die in his own shite by the time he had finished with him." (quote from pursuer's friend's affidavit).

229: After separation, the pursuer made numerous threatening telephone calls, "I want you dead or alive, either way you are coming with me."

12: Following separation the defender continued to harass the pursuer. He "frequently attended (the area in which she now lived) and kept watch on the property." He has accosted the pursuer on numerous occasions and threatened to kill her. He will not leave the pursuer in peace. The police have expressed great concern for the pursuer's safety.

3.15 The above quotes reveal not only the extent of the violent and abusive behaviour perpetrated on some women by their intimate partners but also that post separation, many women may be potentially subject to continuing and potentially escalating levels of violence and abuse from a man who is often reluctant to relinquish ownership of and control over his partner. A number of themes are highlighted in the above quotes. Firstly the extent to which some men will go to persuade women to return to the relationship. Such behaviours are often underpinned by ideas and attitudes which portray women as the possessions and chattels of men, ideas which, ironically, have their foundation in historical legal statute and practice when women's status and rights were determined by their legal relationships through marriage and divorce. Secondly the post separation behaviours of men such as following the pursuer, monitoring her movements, making various threats to her or their mutual children, constitute a form of 'stalking', behaviours recognised in the PH 1997 legislation, discussed in Chapter 1.

SEEKING LEGAL PROTECTION

3.16 Much literature reveals despite changes in the law and police practice, women who experience domestic violence continue to have significant problems acquiring legal protection (Edwards 1989; Lewis et al 2000; Bourlet 1990; Walklate 2001). The women in this study who completed postal questionnaires, reported numerous problems, as the following quotations illustrate:

3.17 Police

2: "It was the 29 ^th Dec, (the police) said they were really busy with drunks."

5: "The police were judgmental and very unsympathetic."

13: "I didn't go to the police because in the past I've found them to be very unhelpful even reproachful."

19: "police (were the most unhelpful), as they were always looking for proof even when bruises were visible."

32: "(the police) saw my face all bust and said there were no witnesses."

12: "The police treated my situation as another domestic and were not interested."

2: "I had only phoned the police twice and they treated me like I was a pest for phoning them."

3.18 Evidence gathered from the court records reinforces unhelpful responses received by women from the police:

269: "The pursuer has been advised by the police that notwithstanding the aforesaid bail orders, they may not be able to provide her with any additional protection and they advised her to take proceedings." (Initial writ).

3.19 The police are however not the only agents charged with assisting women in their search for protection. Solicitors can be a critical source of valuable help. Similarly, the responses of sheriffs can be very important. However for some of the women in this study, responses were often negative, as the following quotations indicate:

9: "The solicitor/court were very unsympathetic: did not seem to understand situation (or, with regard to law), was not able to help."

13: "Solicitor offered no protection."

16: "The court was very unhelpful because they didn't think I had probable cause."

2: "Solicitor was poor, he just seemed to go nowhere."

20: "Solicitor was too formal, sticking to the rules from courts or books."

3.20 Sheriff

2: "The sheriff didn't let me speak in court and said we were both to blame."

3.21 The above quotes demonstrate that the help and advice given by some of the various agents of the law including the police, solicitors and sheriffs continue to be problematic. It should, of course, be fully acknowledged that practice in many agencies has improved, particularly since the 1990's (Hague 1999), following both new legislation ¹⁶ and new policy and practice protocols. Nevertheless, responses like the above, which often minimise the nature, extent and consequences of the abuse, continue to be evident.

3.22 If married women have had difficulties seeking legal redress in relation to domestic abuse then the situation of women who are not married had been even more so. Unmarried women have not had the legal protection recently extended to married women and consequently their predicament has been extremely precarious and uncertain, as the following quotations from women in this study illustrate:

9: "They (police) asked me to report incident to courts and to make a statement to police also. Courts could not help as I had not been hospitalised and we were not married. Police were going to prosecute but the process would take up to 3 months, a position I was in several times before. I felt my only option was to move again."

22: "There's only so much they (police) can do. I wasn't married to him and it was usually my word against his. I did not want to go to court."

14: "I wanted an interdict with a power of arrest but I was never married."

19: "The solicitor said he couldn't help…we were not living together."

23: "I weren't married to him and solicitor said I couldn't get an interdict."

3.23 The above quotations demonstrate the reluctance of some police and solicitors to intervene to assist women who are being abused, because the parties are unmarried. In recognition of the increasing numbers of people who choose to live in intimate relationships without marriage (Social Trends 2001), the Protection from Abuse Act was designed to offer the same protection to non-married parties currently available to married parties.

Evidence of violence and abuse cited in the case files

3.24 Next we present some quantitative data highlighting the extent of the violence and abuse perpetrated on the pursuers and cited in evidence in the civil case files across the 4 courts examined.

Table 3.1 All incidences and types of physical violence ¹⁷ cited in applications across the 4 courts

3.25 Table 3.1 shows that reported in the court records were 306 separate acts of physical and sexual violence, which alongside reporting of emotional abuse comprised the evidence upon which the applications were based. This evidence came from 108 (88%) of the 123 cases. The applications in the other 15 cases contained only evidence of emotional abuse (see Table 3.2 below). Table 3.1 identifies the range of violent acts perpetrated on pursuers. The 3 most frequently reported types of acts were: push/pull/shake (13%), punch face (11%), punch/kick walls /furniture (10%). Glasgow as the busiest court had, predictably, the highest frequency of many of the reported violent acts. Discernible differences between the courts are not identifiable: each court reports overall frequency figures proportional to the number of cases though there are some individual variations. Table 3.1 thus presents a graphic representation of the full range of physical and sexual violence perpetrated by defenders on pursuers. Such behaviours are used as evidence to justify their application for legal protection.

3.26 Of-course, physical violence is not the only type of controlling and coercive behaviour perpetrated on pursuers. As indicated earlier in 15 of the cases, no physical violence was reported, only emotional abuse. Often, however the 2 types of abusive behaviours occur alongside each other, one often reinforcing the other. A variety of different types of emotional abuse were also reported in the applications as shown in Table 3.2 below.

Table 3.2 All incidences and types of emotional abuse cited in applications across the 4 courts

3.27 Table 3.2 shows that reported in the court records were 531 separate acts of emotional abuse, ¹⁸ which alongside reporting of physical and sexual violence comprised the evidence upon which the applications were based. This evidence came from 117 (95%) of the 123 cases. The applications in the other 6 cases contained only evidence of physical violence. Table 3.2 identifies the range of coercive and controlling acts perpetrated on pursuers. The 3 most frequently reported types of acts were: shout/swear at pursuer (32%), threaten pursuer (18%), threaten to kill pursuer (9%). This latter type of intimidating behaviour is noteworthy and a) reinforces the qualitative data presented earlier in this chapter and b) confirms what has been reported in the literature i.e. that leaving a violent relationship is often a dangerous and potentially lethal time for a woman. The pattern across the 4 courts is similar with the 2 most frequently occurring behaviours being the same across all courts. And whilst threats to kill the pursuer are the third most frequently occurring behaviour in Stonehaven and Dumbarton courts, in both Glasgow and Stirling courts, they follow shortly after a related activity, 'surveilling the pursuer'.

3.28 Thus what is reported in evidence in 95% of the 123 cases processed in the research period was a significant level of controlling and coercive behaviours oriented towards intimidating the pursuers. Indeed it is notable that there were many more such emotionally abusive acts reported in the files than physically abusive acts. Also it should be noted that the violence and abuse was presented as evidence in all of the court records irrespective of date of application.

UNDERSTANDING DOMESTIC VIOLENCE

3.29 As with many social problems, a number of misunderstandings often arise which inform practice in the area of of domestic abuse (Connelly 2001; Dobash and Dobash 1992; Dobash, Dobash and Cavanagh 1985; Edwards 1989; Hague 1999; Hague et al, 1997; Hanmer and Itzin 2000; Mullender 1996; Smith 1989). For example, women who return to a violent partner may be criticised by police and legal professionals who may have spent considerable time and effort assisting her to leave the relationship. However, a woman's return must be contextualised in relation to a myriad of factors such as concerns about children being deprived of their father and the fact that intimate relationships cannot be reduced to just the violence and abuse (Cavanagh 2003). Women want the violence to stop but not necessarily the relationship. Similarly, another significant factor informing professional's understanding of abuse is the influence of alcohol. Alcohol is the drug most commonly associated with violent behaviour (Barnet and Fagen 1993; Kaufman, Kantor and Straus 1987), and its use is consistently found in many of the profiles of abusive men. However, the literature in this area has for some time indicated that whilst excessive alcohol consumption may be a contributory factor it is not an explanatory factor in relation to abuse (Dobash and Dobash 1979; Dobash et al, 2000; Smith 1989; Mullender 1996; Kaufman, Kantor and Straus 1987). Furthermore to 'blame' alcohol can be regarded as one means of deflecting attention from the abusive behaviour itself and men's responsibility for using it (Cavanagh et al 2001).

3.30 Earlier discussion of the experiences the women in this study had of seeking legal protection highlighted the need for more effective service provision for women who are victims of domestic violence. A key element of the development of more effective service provision, requires responses to be informed by evidence based upon knowledge of the problem of domestic abuse and both women's and men's responses to it. In this section we present data from interviews with professionals highlighting some of their views of aspects of domestic abuse.

(Police 3): "Domestics are still not very serious to quite a lot of police officers."

(Police 4): "Most of ours are arguments, fall-outs in the house as opposed to violence outside."

(Sheriff 4): "If they've had a fight, rights and wrongs aren't there…one side gets here before the other…and the police have to chose which one it is and which one it isn't."

(Sheriff 3): "A lot of them…it goes beyond what you would normally find in a marriage, arguments and so on…just because they drink."

(Police 3): "As with most cases across the board in the police, it's alcohol that fuels these kind of cases."

(Police 4): "In 99% of the cases, it seems that the women will invite the man back."

(Police 1): "Unfortunately females encourage their husbands and partners to come back into the house…there are always reasons why they take their husbands back."

(Police 4): "…there's quite a lot that don't want them charged. They just want them out."

(Sheriff 2): "The real problem is the position of women as victims and getting them to speak up…will they have a roof over their heads, will they have any kind of financial support, what's going to happen to them and the kids...how can you possibly force them to give evidence…because you are going to make matters worse for them."

(Solicitor 3): "Some [women] are just so intimidated and frightened of the consequences that they can't bring themselves to commence proceedings that's pretty common."

(Sheriff 1): "Offenders are pretty good at targeting women."

(Police 2): "I find that offenders have control of their victims and try to isolate them from their friends and families…it can be quite mentally abusive as well as physically abusive."

3.31 Perhaps not surprisingly, misunderstandings are reflected in the above quotations, for example, that the violence is mutual, that it is caused by drink, that women are in some way to blame for putting themselves in risky situations particularly by returning to a violent partner. However also reflected in the last 5 quotations are views which reflect both the difficulties and dilemmas faced by women, for example, the fear and intimidation they experience. Importantly many of these quotes, focus solely on the women, with minimum attention paid to the perpetrators and their tactics of control and coercion. Thus, what is reflected in the above data from professionals interviewed for this study, are a range of views informed by different levels of knowledge and understanding of the problems of domestic violence. The need for professionals to continue to up-date their knowledge and understanding of domestic violence and abuse, understand its seriousness and reflect on their typical responses in order to achieve greater consistency and a more helpful and effective approach continues to be critical.