Speech in the Scottish Parliament

02 December 2009

Violence against Women

I am grateful for the opportunity to speak in this important debate.

Domestic abuse has been taken seriously by this Parliament, but we still have much to do.

We are a long way behind other countries in our response, which is why this week I launched a consultation on a member's bill to improve the protection that we give to victims.

There are three parts to the proposal: first, automatic access to non-means-tested legal aid for anyone looking for an injunction with powers of arrest to protect them from abuse; secondly, a provision that a breach of such an injunction would become a criminal offence, punishable with a prison term; and thirdly, easier access to non-harassment orders by removing the requirement to show a course of conduct.

It is my opinion that the state has a duty to protect people from abuse.

In any other crime, the state takes on the roles of investigation and prosecution to protect the victim, but that is not always the case with domestic abuse

That means that people who suffer from abuse—let us be clear that the vast majority of them are women—need to access support for themselves, but whether they can protect themselves and their families depends on whether they can afford it.

The Government has raised the income level that is taken into account when calculating legal aid contributions, which will make civil legal aid more easily accessible for many, but it is still wrong that someone is required to pay for their own protection in a modern Scotland.

When a perpetrator breaches an interdict, they can be arrested and held for a couple of days.

If in breaching the interdict they commit a crime—for example, an assault—they will be charged with that offence and prosecuted. However, if they do not commit a crime while breaching an interdict—for example, if they just sit outside someone's house—all that can happen is that they are removed and remanded for a couple of days.

The victim can return to the court regarding the breach of interdict, but that involves more cost, time and probably harassment, while the perpetrator gets legal aid to defend himself.

There is something wrong with a system that protects the offender but not the victim.

The second part of the consultation involves making all breaches of interdicts a crime.

That would mean that the state rather than the victim would have to deal with any breach by the perpetrator of the abuse.

Currently, interdicts are difficult to get because it is difficult to find corroboration.

Due to the lack of real sanctions, they also offer limited protection.

Rhoda Grant: My proposal builds on what is in the 1981 act and the Protection from Abuse (Scotland) Act 2001.

It would give more teeth to those injunctions and ensure that their breach was a crime.

Christine Grahame: Will the member give way?

Rhoda Grant: I want to make progress before I take another intervention.

Thirdly, I am consulting on non-harassment orders, which are currently available and which provide more protection for the victim.

They can be requested by a procurator fiscal during a disposal, or the victim can apply for them themselves through the civil courts.

Breaching a non-harassment order carries a prison sentence of up to five years, and they are therefore a much better deterrent.

However, to get a non-harassment order it is necessary to show a course of conduct; the perpetrator needs to have been convicted of a crime of harassment twice before a non-harassment order can be applied for.

The very nature of domestic abuse means that, in reality, those orders are out of the reach of many victims. Corroboration is needed to secure a conviction but, because the crimes are committed behind closed doors, it is difficult to find such corroboration once, far less twice.

The nature of domestic abuse is such that the victim often tries to hide the crime, which makes detection and prosecution even more difficult.

When a victim finds the strength to come forward, the state needs to respond with high levels of protection.

It is not clear to me why non-harassment orders require a higher level of proof than a conviction for an offence.

A non-harassment order is not a conviction.

If someone does not breach it, there is no crime and no conviction. It is a vehicle to prevent future abuse, not to punish past abuse.

If a victim can assert that they reasonably suspect that someone might abuse them in the future, they should be granted a non-harassment order.

That is the case in Australia, where the courts work on the balance of probability rather than a conviction.

Because of the restrictions of members' bills, I cannot include such a provision in my bill, because it is difficult for a member to propose such legislation.

While we look at protecting victims, we need to look at protecting the children who are affected by such crimes. In this country, we underestimate the damage caused to children; in countries such as New Zealand, access to the children is not given to parents who are found to have committed domestic violence or are suspected of it.

My postbag is full of correspondence about cases in which the justice system has been used as a lever for further abuse when a couple have split up.

When an abusive partner gets access to the children, they use that lever to continue to abuse their victim.

I have acknowledged that the bill that I am proposing is limited, but that is due to the nature of members' bills—there is a difficulty in progressing complex issues in that way.

However, I believe that the bill is a step in the right direction, and I ask members to respond to my consultation and support the process in order that we have better protection for those who suffer abuse.