Aligning policy and law? The creation of a domestic abuse offence incorporating coercive control
| Author | Michele Burman,Oona Brooks-Hay |
| DOI | 10.1177/1748895817752223 |
| Published date | 01 February 2018 |
| Date | 01 February 2018 |
| Subject Matter | Articles |
https://doi.org/10.1177/1748895817752223
Criminology & Criminal Justice
2018, Vol. 18(1) 67 –83
© The Author(s) 2018
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DOI: 10.1177/1748895817752223
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Aligning policy and law? The
creation of a domestic abuse
offence incorporating coercive
control
Michele Burman
University of Glasgow, UK
Oona Brooks-Hay
University of Glasgow, UK
Abstract
Since 2000, the Scottish Government has adopted a gendered definition of domestic abuse
which explicitly positions it as both a cause and a consequence of gender inequality. Following
the launch of a new strategy to prevent and eradicate violence against women and girls, the
Scottish Government announced proposals to create, for the first time, a bespoke offence of
domestic abuse, designed to encompass the spectrum of abusive acts that constitute domestic
abuse, including emotional and psychological abuse. The new offence is intended to better reflect
the experience of victims subject to coercive control, improve the criminal justice response
and facilitate access to justice. It represents one of the most radical attempts yet to align the
criminal justice response with contemporary policy and feminist conceptual understanding of
domestic abuse as a form of coercive control. Drawing on feminist scholarship which has
interrogated the value of law reform, we critically assess the scope of the legislation, the likely
challenges associated with its use in the Scottish context, and the potential for unintended
consequences.
Keywords
Coercive control, criminal justice, domestic abuse, gender, Scotland
Corresponding author:
Michele Burman, University of Glasgow, Ivy Lodge, 63 Gibson Street, Glasgow, G128LR, UK.
Email: Michele.Burman@glasgow.ac.uk
752223CRJ0010.1177/1748895817752223Criminology & Criminal JusticeBurman and Brooks-Hay
research-article2018
Article
68 Criminology & Criminal Justice 18(1)
Introduction
The criminal justice system and its agencies have long been criticized for a failure to
provide adequate protection, responses or preventative measures in cases of domestic
abuse (Buzawa and Buzawa, 2003; Dobash and Dobash, 2000; Edwards, 1989; Pahl,
1985). Early research into the experiences of women seeking legal protection suggested
that the criminal justice system was failing both to meet the needs of victims and to hold
perpetrators to account (Burton, 2008; Edwards, 1989; Grace, 1995; Hanna, 2009; Hester
et al., 2003; Hoyle, 1998; Parmar and Sampson, 2007). More recently, and in many juris-
dictions, there have been important developments in the recognition of the patterns of
harms of domestic abuse (Douglas, 2015), alongside policy innovation (Brooks et al.,
2014; Hester and Westmarland, 2005); legislative change (Cavanagh et al., 2003; Hester
et al., 2008b); the establishment of dedicated courts (Cook et al., 2004; Eley, 2005;
Hester et al., 2008a); specialized training of police, prosecutors and sentencers (McMillan,
2015); and the introduction of advocacy services (Howarth and Robinson, 2016;
Robinson, 2009). Nonetheless, the ways in which the law conceptualizes and responds to
domestic abuse remains subject to critical scrutiny and continues to animate academic,
legislative and policy debate internationally (Fitz-Gibbon and Walklate, 2017; Hester,
2011, 2013; Robinson, 2014).
Scotland has seen significant developments, both in terms of the conceptualization of
domestic abuse, specifically the early adoption of a policy definition that focuses on
‘abuse’ rather than violence, a gendered understanding and the implementation of policy
and practice responses which position the Scottish approach1 at the international fore-
front in this area (Coy et al., 2007; McKie and Hearn, 2004). Yet domestic abuse contin-
ues to be enduring and pervasive in Scotland, and pressing questions remain about the
ability of the criminal justice system to respond to a crime characterized by its complex
and multi-faceted nature. Following Government investment in measures to identify and
address domestic abuse stemming back to the early 2000s, the Scottish Government
recently proposed the introduction of new legislation to create a specific statutory offence
of domestic abuse which draws centrally upon the concept of ‘coercive control’ (Stark,
2007), cited as a means of better reflecting the experience of victims in its recognition of
the impact and consequences of all types of abusive behaviour, and improving the justice
system approach by ensuring more effective investigation and prosecution (Scottish
Government, 2015a, 2015b).
Stark’s work (2007, 2009) emphasizes the importance of power and control in rela-
tionships characterized by domestic abuse, and his formulation of coercive control has
been critical to recent understandings of the complex dynamics of domestic abuse. For
Stark, coercive control is a cumulative form of subjugation that uses a range of tactics –
physical abuse alongside a pattern of non-physical abusive behaviours such as threats,
intimidation, stalking, destruction of personal property, psychological abuse, economic
oppression and restrictions on liberty – that both isolate women and ‘entrap’ them in
relationships with men by making them constantly fearful (Stark, 2007). This represents
one of the most notable attempts to link domestic abuse to gender inequality. Following
feminist critiques of the 1980s/1990s highlighting that legal conceptualizations hinged
on single acts of physical violence, which obscured the nuances and complexity of
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