Court process can “cause as much damage” for victims as domestic abuse, say women’s rights advocates

Caitlin Logan

Despite progress, experts say systemic change is needed to ensure domestic abuse survivors do not feel “let down” by the courts

SCOTLAND’S COURTS system must be reformed to better support domestic abuse and rape survivors who can find the process “as traumatic as the abuse”, according to campaign and advocacy organisations.

Speaking to CommonSpace, Scottish Women’s Aid, ASSIST, Zero Tolerance, the Scottish Women’s Rights Centre, Rape Crisis Scotland, and the Scottish Human Rights Commission said that despite progress in recent years, many victims of domestic abuse and rape continue to feel ill-served by the system.

“Problems within the criminal justice system can lead to complainers feeling powerless throughout the process and ultimately let down by the justice system. Many women tell us that the criminal justice process can cause just as much damage as the crime itself,” Sarah Crawford, solicitor for the Scottish Women’s Rights Centre said.  

This coincides with the publication of a series of case studies by CommonSpace based on interviews with four women who have been through the process as complainers in domestic abuse and rape cases.

READ MORE: Making justice ‘worth it’: Domestic abuse survivors say change is needed if victims are to have confidence in the legal system

A number of specific actions to improve the system for victims were identified by the organisations and the women themselves, including:

  • Training for everyone who hears or deals with domestic abuse and rape/sexual assault cases to ensure consistency, in line with the new Domestic Abuse Act: including sheriffs, police, court reporters and other court staff, criminal justice social work and those writing reports informing child contact decisions.
  • Victims of domestic abuse and rape/sexual assault should have the opportunity to have their evidence pre-recorded – it should be confirmed that current considerations around child evidence and evidence in rape cases will be extended to domestic abuse in a specified timescale.
  • Court advocacy services should be extended across Scotland for domestic abuse cases.
  • Complainers should be given standing in criminal proceedings by enabling them to be legally represented, which would assist the Crown Office and Prosecution Service (COPFS), support requests for non-harassment orders, and provide the complainer a point of contact. To achieve this, and adequate representation for women in civil proceedings, adequate legal aid must be available.
  • Stronger communication between prosecutors and complainers so that victims don’t feel that they are peripheral to the case.
  • Review the requirement for corroboration (two different and independent sources of evidence) in certain categories of cases, as this is often impossible to achieve in rape and domestic abuse cases.

Additional points raised were the need for civil and criminal courts to be better connected, greater resourcing to COPFS, the need to allocate resources to raise awareness amongst victims and survivors to encourage reporting and understanding of protections offered, and the need to address gender inequality at every level of the criminal justice system.

READ MORE: Editorial: Why CommonSpace is backing these 5 reforms to how the courts handle domestic abuse

Crawford, who provides legal advice to women who have faced violence or abuse, noted that the Scottish Government had taken positive steps in recent years.

For example, the Domestic Abuse (Scotland) Act was passed in March this year, there are proposals to allow children in serious cases and rape victims to pre-record evidence through the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, and an additional £1.1m extra funds to reduce court delays in rape cases and improve communication with complainers was announced earlier this month.

That being said, she stressed that these reforms must be built upon if the criminal justice system is to be “fit for purpose”, with a number of ongoing issues including poor communication with complainers, “lengthy and repeated delays”, “re-traumatisation”, and “the inability of the complainer to participate in the proceedings and have access to their own legal representation”.

Crawford suggested that there was a need to review the need for corroboration in certain categories of case, and echoed the view of Scottish Women’s Aid and ASSIST who told CommonSpace earlier this year that specialist training for sheriffs was needed to ensure consistency in sentencing and the granting of non-harassment orders.

Mhairi McGowan, head of service at ASSIST, the domestic abuse advocacy service in the West of Scotland, said the experiences of the women CommonSpace spoke to illustrate that “there is still much to do before the Justice system can truly say that it deals appropriately with domestic abuse”.

McGowan said: “Most importantly, it highlights the need for all those involved in hearing or dealing with domestic abuse cases to be trained to understand the dynamics and implications of delays, deferrals and sentencing on the victims.

“Decisions made can have a lasting effect on the lives and safety of all those concerned that should not be underestimated.”

READ MORE: Exclusive: SNP councillor who faced domestic abuse speaks out on being “put through hell” in court

Marsha Scott, CEO of Scottish Women’s Aid agreed that training was the overriding issue, and that “there are enormous variations in understanding the dynamics of domestic abuse” amongst professionals in the system. “It’s going to be difficult to achieve change on a chunk or margin of the problem without people understanding domestic abuse,” she added.

To achieve this, Scott said it was also essential to build on gender equality “in all levels of the criminal justice system” by addressing occupational segregation in a sector where, for example, only 20 per cent of Scotland’s 142 sheriffs are women.

The need for victims’ own role in the process to be strengthened was also a common theme raised by the organisations. Scott said that, at present, the process was “based around the needs of the systems’ actors” – the professionals –  “rather than victims”.

“People in the criminal justice system tell me that the system isn’t designed for victims, it’s to deliver justice for the public – the two should be very much the same in my opinion,” she said.

An important step towards a victim-centred system, she said, was to ensure that women and children involved in such cases have “access to competent and free legal support”, including in the civil court system, for example in dealing with child contact issues, in which Scott said access to legal aid is inadequate.

In the absence of such support, Rape Crisis Scotland chief executive Sandy Brindley said that poor communication between the prosecution and complainers left many victims feeling that they are “completely peripheral to the case”.

“In rape cases [victims] are likely to have only met the person prosecuting their case once, and they are not allowed to discuss any of the evidence at this meeting. In contrast, the accused has his own lawyer who will have discussed the evidence with him many times,” Brindley said. “In our opinion, cases would be stronger if communication with complainers was better.”

READ MORE: Sheriffs need training to make domestic abuse courts work, say victims’ charities

Rachel Adamson, co-director Zero Tolerance said the examples highlighted in CommonSpace’s investigation “should raise concerns about the limitations of our current system” – limitations which have led women’s organisations to push for specific changes for some time.

Adamson explained: “Expert women’s organisations have made a variety of recommendations to improve our justice system. These include better communication and support for survivors, direction for juries on managing evidence in sexual assault cases and specialist training for sheriffs, prosecutors and judges.

“The Scottish Government must listen and act on these changes if we are ever to fully eradicate violence against women.”

Judith Robertson, chair of the Scottish Human Rights Commission also backed the calls of women’s organisations, following a report on women’s rights published by SHRC last month which highlighted the need for training of all professionals in the Domestic Abuse Act.

Robertson told CommonSpace that while progress has been made, for example in the form of the Act, women still face barriers in the criminal justice system which not only prevents them from accessing their right to justice but compounds the trauma of the original abuse”.

In light of this, she said: “The Commission calls on the Scottish government to ensure that all relevant agencies including prosecutors and the police are appropriately trained to enforce and implement the Domestic Abuse Bill and that women and children receive the support and services required.

“The legislation is a good starting point, but needs to be accompanied by an allocation of resources to raise awareness for victims and survivors of domestic abuse to encourage greater reporting, and generate a better understanding of the broader scope of the protections it offers.”

READ MORE: Low rape conviction rates prove corroboration should be scrapped, says Rape Crisis Scotland

Due to the separation of duties in the justice system, responsibility for the issues highlighted lies with a number of different bodies: the Crown Office and Procurator Fiscal Service (COPFS), the Judicial Office for Scotland, the Scottish Courts and Tribunal Service, and the Scottish Government.

Responding to the concerns raised, justice secretary Humza Yousef said the government was “taking action on a number of fronts to address the issue”, including through its £20m Violence Against Women and Girls Justice Fund.

He said: “[This] has helped improve support for victims and has boosted resources for our courts and prosecutors by £2.4m each year, helping to reduce court waiting times for criminal domestic abuse cases. 

“We are also funding the implementation of the Domestic Abuse (Scotland) Act to support the training of over 14,000 Police officers and front line staff and to help Scottish Women’s Aid to develop training materials for staff.”

Yousef said funding will also be provided for “an awareness raising campaign” around the new legislation, and that the government is currently consulting on “modernising family law” to improve the system.

He added: “In my new role as Cabinet Secretary for Justice I am currently engaging with a range of key stakeholders who support victims of domestic abuse to hear directly from them about what improvements can be made to the justice system, and I look forward to working with them going forward.”

A COPFS spokesperson noted that all prosecutors are provided with specialist domestic abuse training and guidance on the issue and that it appointed the first National Procurator Fiscal for Domestic Abuse in 2013.

READ MORE: How are Scotland’s domestic abuse courts working?

The spokesperson added :“COPFS are also strongly committed to supporting vulnerable witnesses through the court process and are working with partner agencies and stakeholders to address systemic issues and improve the experience of victims and witnesses within the criminal justice system.”

The Judicial Office for Scotland said that newly appointed sheriffs and summary sheriffs receive training on domestic abuse as part of their “mandatory induction course”, delivered by the directors of the Judicial Institute and Scottish Women’s Aid.

A spokesperson said: “For several years, specific training on domestic abuse issues has been incorporated, as appropriate, into other training courses focussing on family cases, vulnerable witnesses, courtroom technology and sentencing.

“Further training is also planned in anticipation of the new domestic abuse legislation coming into force next year.”

Meanwhile, the Scottish Courts and Tribunals Service said it had worked with Victim Support Scotland to design and run victim awareness training for frontline court staff and had led on the Evidence and Procedure Review, producing “ground-breaking proposals that will make giving evidence less traumatic for children and vulnerable adult witnesses”.

This work laid the groundwork for the proposed Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill, now before the Scottish Parliament. A spokesperson added that the service was “already seeing increases” in giving evidence in this manner and was looking to develop specialist facilities at a number of locations for this purpose.

If you have been affected by any of the issues discussed in this article, contact the Domestic Abuse and Forced Marriage Helpline on 0800 027 1234, the Rape Crisis Helpline on 08088 01 03 02, the Scottish Women’s Rights Centre on 08088 010 789, or find details here of your local Women’s Aid or Rape Crisis Centre

Picture courtesy of Laura Dodsworth 

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