‘Gold Standard' Legislation for Adults Only: Reconceptualising Children as ‘Adjoined Victims' Under the Domestic Abuse (Scotland) Act 2018
| Author | Ilona Cairns,Isla Callander |
| DOI | http://doi.org/10.1177/09646639221089252 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Articles |
‘Gold Standard’Legislation
for Adults Only:
Reconceptualising Children
as ‘Adjoined Victims’Under
the Domestic Abuse
(Scotland) Act 2018
Ilona Cairns and Isla Callander
University of Aberdeen School of Law
Abstract
regarded as ‘gold standard’in the way in which it seeks to recognise the harms caused
to children who experience intimate par tner coercive control in their living environ-
ment. We argue that children should be reconceptualised children as ‘adjoined victims’
a parallel section 1 offence of ‘abusive behaviour towards partner or ex-partner and
adjoined child’. By offering the first academic analysis of why and how the criminal
law should seek to capture children’s experiences of coercive control, this article
contributes to broader discussions about criminalising coercive control and the scope
of such offences. It highlights key lessons that can be learnt from the Scottish stor y
so far and sounds a note of caution against simply ‘rolling out’the Scottish approach
elsewhere.
Keywords
Children, coercive control, criminal law, domestic abuse, Domestic Abuse (Scotland)
Act 2018
Corresponding author:
Isla Callander, University of Aberdeen School of Law.
Email: isla.callander@abdn.ac.uk
Article
Social & Legal Studies
2022, Vol. 31(6) 914–940
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639221089252
journals.sagepub.com/home/sls
Introduction
Although discussions about criminalising domestic abuse are decades old (Tadros, 2004–
2005; Tuerkheimer, 2004), over the last five years these have become less academic and
abstract. Numerous legislatures, ranging from those in Northern Ireland to New York to
New South Wales, have engaged with the question of whether to create a distinct offence
of domestic abuse/coercive control, and accompanying questions about the scope of new
legislation.
1
Scotland features heavily in these ongoing debates, having recently intro-
duced what has been termed the ‘gold standard’offence (Scott, 2020: 177) of ‘abusive
(Scotland) Act 2018. While we are firmly convinced by the arguments for a distinct
offence of domestic abuse, in Scotland and elsewhere, the overarching aim of this
article is to demonstrate that the Scottish legislation should not be regarded as ‘gold
standard’in one significant respect: the way in which it seeks to recognise the harms
caused to children by coercive control in their living environment. Through our analysis
of the Scottish legislation, we will show that reconceptualising children as ‘adjoined
victims’
2
of intimate partner domestic abuse under the substantive criminal law is sym-
bolically important and recognises far more accurately children’s experiences of coercive
2018Act should be amended to include a new and parallel section 1 offence of ‘abusive
behaviour towards partner or ex-partner and adjoined child’.
there is no doubt that Evan Stark’s work (Stark, 2007) on coercive control inspired
the drafting of the section 1 offence,
3
which seeks to capture ongoing abuse charac-
terised by micro-regulation, manipulation and control tactics. The introduction of a dis-
tinct offence of domestic abuse was necessary because existing Scots law offences did
not adequately capture this wide range of goal-orientated behaviour and the cumulative
and ongoing harms that result from it. The section 1 offence, in contrast to other more
episodic Scots law offences, is designed to allow the whole context or ‘story’of an
abusive relationship between intimate partners to be libelled together under a singular
offence, and it is this unique feature that closes a gap in the law and has been said to
make the offence ‘gold-standard’. Overall, then, the offence represents a direct chal-
lenge to the issue of ‘fragmentation’that tends to the occur in the criminal law and
has been acutely problematic in the context of domestic abuse (Tolmie, 2018: 51–53;
Hanna, 2009). Our analysis will show not only that a gap persists when it comes to
how Scots law recognises the harms that coercive control causes children, but that
the depth and consequences of this gap have been obscured by late amendments to
lation. Recognising children as adjoined victims via the introduction of a parallel
offence, as we propose, matters not only because it validates children’s experiences
via the expressive and symbolic power of criminal law, but because it would allow a
court to consider the full range and reach of harms caused by coercive control together,
and sentence accordingly. The section 1 offence can only tell the whole story, and be
truly deserving of its gold standard reputation, if children’s experiences are recognised
in this way.
Cairns and Callander 915
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