Day Six | Towards a just conclusion – a prosecutor’s perspective on tackling domestic abuse in Scotland

Anne Marie Hicks


Image of the Crown Office used with the permission of the Crown Office & Procurator Fiscal Service, Scotland

Transforming the institutional response to domestic abuse has been a key focus since I was appointed six years ago to a newly-created role of National Prosecutor, one which is not mirrored in other jurisdictions internationally. With a remit involving overseeing all aspects of policy, practice and training, including case work, service improvements and policy and legislative development, it’s my job to ensure prosecutors have the right tools to do the job and that our response is as effective as it can be. 

My diary over this period reflects the breadth of the role – there’s no ‘typical’ day. To illustrate, I’m delivering training to prosecutors; reviewing the first six months of implementation of our new domestic abuse law; and working with our human resources department on the development of a gender-based violence policy for our staff. I’m also speaking at events and to media to publicise 16 Days, participating in a Ministerial Task Force to improve victims’ justice experience and a Task Force to improve forensic medical services for victims of sexual violence, and attending a multi-agency forum with criminal justice and victim support organisations to discuss the collective response to domestic abuse. Quite a variety!

The key benefits and difference the National Prosecutor role have made are around strategic leadership and specialism – having the authority to work across boundaries, to really drive change, upskill prosecutors and identify and implement service improvements at a national level. Externally, the role has increased understanding and public confidence in our approach, has strengthened multi-agency collaborations and has enabled us to play a more influential role in the national political response to tackling violence against women.

Robust prosecution critical in preventing abuse

Around 30,000 domestic abuse charges are reported annually to the Prosecution Service by the police in Scotland – covering the full ambit of offending including rape and murder. Domestic abuse is also a significant inequality issue – around 80% of cases involve abuse by male perpetrators towards women.

We take a robust approach to the prosecution of domestic abuse, recognising that effective enforcement and prosecution is critical to the success of any wider prevention strategy. Prosecution can disrupt the abuse and enable physical separation and a breathing space for victims through custody, or protective court orders. It can provide an opportunity for intervention with perpetrators and victims, and prevent further abuse towards them or other women who may be at risk in the future. Prosecution also plays a vital role in educating the public and changing cultural attitudes, by sending a strong message that this behaviour won’t be tolerated in society.

Prosecutions are often challenging evidentially given the hidden nature of this crime which still overwhelmingly takes place behind closed doors. Reluctance and disengagement by victims with the criminal justice process due to the dynamics and impact of abuse is also a significant issue and prosecutors have to work harder to get the right results, in close collaboration with other organisations to ensure victim support and safety is at the centre of our approach.

We operate strong presumptions in favour of prosecution where there is sufficient evidence – and against discontinuation of prosecutions once we’ve started, even in the face of reluctance by the victim. Victims’ views will always be important, but the public interest requires that all relevant factors are properly considered. This approach recognises the repeated nature of the crime and the state’s obligations – as confirmed by the European Court of Human Rights – to tackle violence against women and protect citizens from future harm. 

Criminal enforcement alone will not eliminate domestic abuse; but without robust, consistent and effective enforcement and prosecution, we will never eradicate this behaviour in society and make victims and children safer.

Scotland’s new domestic abuse law

From April this year, Scotland has had the benefit of a new domestic abuse law which criminalises a course of abusive behaviour between partners or ex-partners (unlike other UK jurisdictions, the Scottish legislation doesn’t extend to other familial relationships). 

Introduced to close a gap in the law in relation to many of the coercive and controlling behaviours which weren’t previously criminal, the new law is significant in a number of ways. For example, it moves away from an incident-based episodic approach and enables patterns of repeat victimisation to be prosecuted as a single course of conduct. It also defines abusive behaviour as including not only physical and sexual violence and threats, but also other coercive and controlling behaviours, including those designed to isolate, control, regulate, restrict freedom, punish, degrade and humiliate.

A further strength of the new law is that it focuses on the perpetrator’s behaviour and likelihood of this causing harm rather than requiring proof of actual impact and harm to the victim;and it recognises the harm caused to children by domestic abuse and introduces an aggravation to the charge where a child is involved. Finally, it enhances victim safety provisions, introducing mandatory consideration of protective non-harassment orders for victims and children on the conviction of the perpetrator.

It’s early days but already we’ve raised numerous prosecutions and are securing convictions. Crucially we’ve been able to prosecute coercive and controlling behaviours which were not previously criminal, making the true pattern of abuse visible and allowing courts to address the full extent of victims’ experiences. This is a significant step forward for Scotland in ongoing collective efforts to transform the justice response to tackling this insidious behaviour and keeping victims and children safe. 

Anne Marie Hicks is the National Procurator Fiscal for Domestic Abuse at the Crown Office & Procurator Fiscal Service, Scotland

Day Three | Unintended consequences of domestic violence law

Heather Nancarrow

Unintended consequences

Women are increasingly ensnared in the criminal justice system as a result of domestic violence laws that were designed to protect women from men’s violence. This is especially the case for Aboriginal and Torres Strait Islander women.

 The enormity of this problem is captured by the Queensland Domestic and Family Violence Death Review and Advisory Board, which reported that 44.5 percent of female adult victims, and nearly all Aboriginal family violence victims, had been identified by police as a respondent to a domestic violence protection order application on at least one occasion. That is, victims of domestic and family violence had been construed as perpetrators, prior to their domestic violence-related death.   

Understanding how and why law that was originally designed to protect women from men’s violence is being used against them – and what to do about it – is the subject of my book, Unintended consequences of domestic violence law: Gendered aspirations and racialised realities, which was published in October.  The limitations of the law as a site for justice and empowerment for women has long been the subject of feminist critique internationally (see, for example, the work of Carol Smart, Kathleen Ferraro, and Leigh Goodmark) and here in Australia (such as Rosemary Hunter’s book,  Jane Wangmann’s doctoral dissertation and my journal article). 

A key feminist concern is male power in law’s structure and processes, with debates centred on whether women should be treated the same as men, or differently. Others are equally concerned, or more so, about white power in the law (see, for example, The Aboriginal and Torres Strait Islander Women’s Task Force on Violence Report, as well as Hillary Potter’s Battle Cries and Beth E. Richie’s Arrested Justice), particularly where law’s structures and processes reflect neo-colonial power.

My research, using Queensland as a case study, addresses both concerns and pays attention to the intersections of gender, race and class in the cases of 185 people within four groups, roughly equal in number: Indigenous men, non-Indigenous men, Indigenous women and non-Indigenous women. (Note that ‘Indigenous’ is the term used in police and court records.) Each person in the research sample had been charged on at least one occasion with breaching a domestic violence order (DVO). Here is a sketch of what I found. 


Coercive control and resistance

Although not explicitly framed as such, Queensland’s domestic violence law was originally intended to address an ongoing pattern of coercive control perpetrated by men against their intimate female partners (see chapter 3 of Nancarrow 2019). The law recognised non-physical abuse as tactics of control and assumed a particular kind of victim: a subjugated, powerless woman. Therefore, it gave the state (in other words, the police and the courts) powers to make civil DVOs without requiring the consent of the victim, and made the breach of a DVO a criminal offence.

The law is being appropriately applied in regard to the majority of the men in the sample, though less so for the Indigenous men. That is, most of the men had been charged with breaching a DVO on one or more occasions due to coercive controlling abuse. Their abuse was aimed at general, ongoing control of their partner: an attack on their “autonomy, liberty and equality”.


Fights, dispute resolution and chaos

But the law is not being applied according to its original intent when women are charged with breaches of DVOs.  Nearly all of the women in the sample had been charged on one or more occasions with breaching a DVO due to fights: physical and verbal abuse in the absence of an ongoing pattern of coercive control. This was also true for some of the men, especially the Indigenous men. 

Further, some of the fights that the Indigenous women and men engaged in were characteristic of contemporary forms of traditional Aboriginal dispute resolution (see Marcia Langton’s chapter in Being Black: Aboriginal cultures in ‘settled’ Australia). This is a process traditionally regulated by cultural rules and boundaries, but which may now manifest as less structured and potentially more dangerous due to colonial interference and associated trauma. 

For about one-third (35%) of the Indigenous women, and 5% of the non-Indigenous women, fights (and related DVO breach charges) occurred in a context of “chaos” – a description frequently used by service providers and police prosecutors that I interviewed to help understand why Indigenous men and women were over-represented in DVO breach data. “Chaos context violence” (see Nancarrow 2019, chapter 7) typically involves a cluster of attributes including (but not limited to) extreme dysfunction arising from acquired brain injury, for example; trauma or poor mental health; and substance addiction. 


Implications for theory and practice

Policy analysis must take account of the patriarchal and racist structures in which domestic and family violence occurs, and it must distinguish between coercive control and fights. Giving the state power to make DVOs without the consent of the victim is sound logic for cases of coercive control, but it is not sound for cases involving fights. Nevertheless, fights can be distressing, harmful and lethal, and alternative strategies are needed to address them. Restorative justice practices and couples counselling may be appropriate in such cases.

The logic of state power over victim choice in cases of chaos context violence is not only unsound, it is unjust. To some extent, it reflects the deployment of exceptional state power to punish people for behaviour resulting from violence perpetrated on them by the state. Ending chaos context violence ultimately requires structural reform to address racial and socio-economic inequality; at an individual level, it may involve therapeutic intervention and support.


Risks inherent in a paradigm shift

A paradigm shift in current mainstream responses to intimate partner violence, which distinguishes between coercive control and fights is needed, but there are significant risks associated with such a shift. Further development of knowledge and skills to assess and distinguish between coercive control and fights is needed for any approach. We cannot risk a return to the days when coercive control was dismissed as an argument, or a fight. Nor should we facilitate the criminalisation of women (especially Indigenous women) and some men (especially Indigenous men), whose use of violence is not an expression of patriarchal coercive control, but an expression of powerlessness in a society where power and resources are distributed unevenly along gendered and racialised lines.  

My research represents challenges to orthodoxy within current domestic violence theory and practice. It calls for reconceptualising types of violence to take account of gendered and racialised contexts in which it occurs. I argue that the criminal justice system is not only ineffective in many cases, but it is unjust. Though there are undoubtedly challenges of achieving the recognition of women’s agency in fights; a victims’ choice in engaging agents of the criminal justice system; and unequivocal state sanctions against patriarchal coercive control of women, this nonetheless is what we must work towards.


Heather Nancarrow has a PhD in Criminology and Criminal Justice and has held many state and national leadership roles in regard to policy on the prevention of violence against women. She is currently the CEO of Australia’s National Research Organisation for Women’s Safety, an Adjunct Associate Professor at UNSW Sydney and an Adjunct Research Fellow, Griffith Criminology Institute, Griffith University. Her work has been recognised with several awards including the “Queenslander of the Year Community Spirit Award” in 2009; “Honours in recognition of outstanding leadership of the National Council to Reduce Violence against Women and their Children and advancing strategic implementation of the National Plan” awarded by Victim Support Australia in 2012, and in 2010 she was named a Rotary International Paul Harris Fellow.