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

CommonSpace speaks to four women who have been through the courts in domestic abuse cases to learn how the system works for them

“HIS ABUSIVE pattern was without a doubt back in full force and I was beginning to realise it had never really gone. People were being hurt by him once again. I needed to speak the truth.”

In 2012, Kate’s partner raped her while she was having a seizure – a crime he reported himself but couldn’t be charged with, due to her refusal to give a statement or be examined – and continued to physically and psychologically abuse her for four years before she left.

It was only in May last year, when she learned that he was repeating the same patterns of behaviour with his current partner while caring for Kate’s young child, that she chose to come forward about all that had happened to her.  

The decision to report a crime and to stick with it through a sometimes lengthy court process can be an incredibly difficult one for people who have faced domestic abuse or sexual violence. Standing up and speaking out is hard enough, particularly when it relates to a personal relationship, and this is only compounded by re-living a traumatic experience over an extended period of time whilst waiting for an outcome which may or may not be the one desired.

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

This is why advocates of survivors are intent on ensuring that the criminal justice system works as well as it can for those who choose to go through it – a goal they say has yet to be fulfilled, despite considerable steps forward in recent years.

Earlier this year, the Domestic Abuse (Scotland) Act was passed, creating a criminal offence of domestic abuse, and specialist domestic abuse courts have been set up in a number of locations. Meanwhile, domestic abuse experts say much progress is needed to ensure that these – and all courts hearing domestic abuse cases – provide specially trained sheriffs, a quick turnaround time, and a dedicated advocacy service.

This month, the Scottish Government announced £1.1m of extra funds to reduce court delays in rape cases; following a review on child evidence, the government will introduce a bill which would allow children and vulnerable adults in serious cases to pre-record evidence; and an ongoing consultation on a review of the Children (Scotland) Act and family justice modernisation could address issues around child contact and links between civil and criminal courts. 

Four women agreed to speak to CommonSpace about their experience of the court process as ‘complainers’ in domestic abuse and rape cases. Each of these women were provided with an advocacy service in the form of either ASSIST, which serves the West of Scotland, or the Edinburgh Domestic Abuse Court Support and Advocacy Service (EDDACS); something which many women around Scotland do not have access to when going through similar experiences. 

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

Kate (38)

After multiple sessions providing statements and evidence to police, Kate learned in January that her former partner had been charged with two counts of threatening and abusive behaviour and two counts of assault which had taken place when she was pregnant and had been captured on video.

With his ‘not guilty’ plea in place, Kate and her teenage son prepared themselves to give evidence in court. Kate recalls feeling that her time had finally come for her experience to be heard. “This has been on my chest for six years, hidden for five, revealed and delved into over and over again the past year, having to wait. I was ready to tell my story, for it to be heard.”

Two months later, she walks out of the prosecutor’s office, shaking, tears filling her eyes. She has just been told that the evidence for the assault was thrown out because the video was logged within an estimated timeframe, now shown by the timestamp to be one month too late. The accused changed his plea to ‘guilty’ to the lesser charges, and neither she nor her son will be called to testify in court.

The news comes after five hours of waiting at the court, with no idea if or when the case would be heard that day. Now, Kate is furious. “Who logged the incorrect dates of the video evidence I had provided? Someone should be held accountable, as it seems like no one tried to find the definitive dates of the recordings – the main, concrete evidence of his physical abuse,” she says.

Ultimately, Kate is concerned that the sentence and decision over imposing a non-harassment to protect her (which would prohibit her ex-partner from approaching or contacting her in specified circumstances) won’t be sufficiently informed of the extent of the danger she faces. “If the sheriff had seen that video, he would have seen him strangling and pressing down on a pregnant woman,” she says.

READ MORE: Parties unite to pressure Crown Office over risk of 're-traumatising' rape survivors with new prosecution policy

The sentencing for Kate’s ex-partner’s conviction is scheduled for one month later, before being deferred for one month for the preparation of social work reports, and then being deferred for a further six months to allow Criminal Justice Social Work to assess his behaviour, in light of his lawyer’s argument that he has given up alcohol and is taking steps to reform himself.

This unexpected development leaves Kate reeling. “The only inkling I was given about a deferral at all was when I went to victim support to be shown the court before I was meant to give evidence. They said occasionally it’s deferred, but only for about four weeks.

“I at no point had any sense there was a possibility of a six month deferral to basically give him a chance, so that has come completely out of the blue.”

Through all of this, Kate says, the over-riding feeling has been a sense of disempowerment; of not being able to speak for herself. “Even though there’s an advocacy service, it still feels like there’s no way for me to advocate for myself. The prosecution isn’t here to represent me, they’re here to represent the public, to make sure they’re protected - I understand that,” she says.

“But if it was my own lawyer that I had employed, I’m sure it would be different. My problem is that victims in the criminal justice system are not made aware of what is going on.”

Having been diagnosed with dissociation and panic attacks as a result of the abuse, Kate’s mental health has deteriorated during the course of the court process – and now, the waiting game continues.

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

However, she’s keen to stress that it’s not “all doom and gloom”. “The grain of sand of hope that I keep holding on to is that he’s registered in Clare’s Law [the Domestic Violence Disclosure Scheme] – meaning any future partner will be able to see has a conviction, even if he’s not been punished.

“Cognitively, I feel that’s worth it. It’s the separation between heart and head,” she explains.

Lucy (18)

At Lucy’s 16th birthday, her boyfriend assaulted her and gave her a black eye. The next year, she ended up in hospital after he attacked her when she confronted him about photos and videos he had taken of her without her consent and shared with other people.

Lucy says she decided to report the incidents to the police because she didn’t want her supportive family to take matters into their own hands, and she found that the police were “lovely”, “really supportive”, and took steps to ensure her safety when her ex’s family members threatened her.

However, she found that once the cases entered the court stage, her confidence in the process fell apart. “After you’ve given your statement, no one speaks to you again till you’re sitting there and even at that you’re sitting in that waiting room from 9 till 5 and not a single person comes out and speaks to you about when you might be seen or ‘oh, we don’t really know if you’re going to be seen today’,” she says.

“You don’t know who your PF is going to be, they don’t contact you in any way, shape or form. You physically do not even know who you’re dealing with till you’re sitting in that court - you don’t know who’s his lawyer and who’s my lawyer, it’s a genuine joke. That needs to change.”

As a result, Lucy feels that she was not given her best chance to be prepared in court, as she had no sense of what might be “thrown at her” during cross-examination. “I go in there and have no idea what they’re going to ask me, no idea what they’re going to accuse me of, but he’s aware of what they’re saying about him. That’s not fair. It makes me really angry,” she says.

In the case regarding the assault on her birthday, she feels it was a lack of communication which allowed the case to fall through and her ex-partner to be acquitted, as he had a witness in support of his version of events who Lucy says she could have proven wasn’t there had she been given the chance.

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

In the other case, he was found guilty of the assault and sentenced to three months of counselling to deal with his anger – an outcome which also left Lucy feeling let down. “He didn’t even have to pay a fine, he didn’t have to do community service, all he got after being convicted of this assault was ‘just don’t do that again and go and sit in counselling for three months every two weeks’. It’s like ‘it’s only counselling, I’ll do that again then’,” she says.

While Lucy believes that he was likely afforded this lesser sentence due to his age at 18 years old, she feels that she was taken less seriously because of hers. “It doesn’t seem like a big thing, especially being younger. The amount of times people didn’t believe me because I was only 17, but people need to realise it happens to people of all ages,” she explains.

Despite applying twice for a non-harassment order, none has been granted, leaving Lucy feeling exposed. “At the time my ex-boyfriend followed me about for ages, he showed up at my work and the gym I went to, he harassed my wee sister in the street, he walked past my house shouting abuse at my mum and dad. I didn’t feel safe,” she says.

ASSIST has argued that specialist training in domestic abuse for sheriffs is likely to impact on sentencing, including decisions on whether to provide non-harassment orders or special bail conditions which can be particularly appropriate in these kinds of cases.

Lucy says her own experience has left her convinced that she will “never report another domestic abuse case”, unless she sees significant changes in the system. That being said, she still believes reporting is “the right thing to do” and could drive the change which is so badly needed.

“Maybe we can all come together and make it change. If more people did report it there would be more people to start telling the system how it’s not working,” she says. “It’s about being brave enough to do it, as much as it’s hard and as much as it’s something you really don’t want to be doing.”

Heather (40)

Heather has just found out that her ex-partner will be awarded supervised contact with their children for the first time since 2014, when she reported that he had raped her three weeks earlier. Their two children, aged four and six, and her 11 year old child from a previous relationship, all witnessed the attack.   

Heather told the police what had happened when reporting a later incident, and let them know that he was threatening to rape her again.  

Ultimately, Heather says the effects on her children pushed her to speak out. “My eldest daughter was crying going out to school, leaving me, and then she didn’t want to go home. She was having separation anxiety,” she remembers. “Her perception of what happened – the impact on her – that wasn’t going to go away.”

For child protection reasons, Heather had to move out of her home with her children immediately, with “only the clothes on their back”, and bail conditions prevented her partner from approaching her or her children.

The case went to trial at the end of 2016, when he was found not guilty by a jury, and six months later he applied for child contact. Now, Heather isn’t sure if the process which she and her children have gone through has been worth it. “It definitely hasn’t worked in our favour. I put my faith in the justice system and waited two years for a trial and it fell through,” she says.

The prosecutor in the case told Heather that the sheriff “had a fundamental misunderstanding of corroboration” which had impacted on the outcome. The case was moved from the High Court to the Sheriff Court, which Heather was told “lost the momentum of the case”.

The trial itself was intensely stressful for Heather and her eldest child in particular, both of whom had to give evidence in court, while another of her children provided a statement by video. Heather recalls that her daughter – only 13 at the time – was accused of lying by the defence lawyer. “It left my daughter feeling like she let me down and it has definitely impacted on her mental health,” she says.

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

Heather says she believes that, at the very least, the cross-examination of children should be “done more tactically” and that there should “guidelines on what they can say to a minor”. Ideally, she thinks children wouldn’t be cross-examined at all.

“I think the evidence children give at the time is the best evidence they could give. Two years is a long time for a child to remember a traumatic event,” she says.

For Heather, the experience left her feeling like she was “the one on trial”. For example, Heather remembers: “The defence pulled my statement out and said go to page 6, and asked ‘how many times did he penetrate you?’. I said ‘twice’, she said ‘go to page six’, and I had only said he penetrated me. She said, ‘where did it say it was twice?’ She made a big thing out of that.”

Almost two years later, she case is still hanging over Heather’s life, as her child contact dispute has only just concluded – with an outcome she believes is “horrendous”.

“Now I’m being told by social services that the legal system failed me - it’s very difficult to hear that from other services, that it’s failed me and my children,” she says.

It seems that social services are sympathetic to Heather’s situation – with one worker even advising her that her friend in a similar position took her children and moved away without telling anyone – but the sheriff in the contact case said that, without a guilty verdict in the other case, preventing contact would violate the father’s rights.

For Heather, what’s missing is an appreciation of the children’s right to have their voices heard. “My children have articulated to social services and my almost 11 year old daughter wrote a letter to the sheriff explaining why she doesn't wish contact with her father, but it seems their opinions and feelings are outweighed by his parental rights,” she says.

“My 15 year old daughter has been hospitalised twice since [the decision] with extreme anxiety. It’s just a total living nightmare.”

Julie McKenzie

I didn’t know what to do anymore to stop the situation. I was put in a state of fear and my child was in a state of fear – that’s when I called the police,” McKenzie recalls. “When I was asked if I was experiencing abuse, I said no. But when the police went through a check list about coercive control, the penny dropped.”

For Oban SNP councillor Julie McKenzie, engaging with the criminal justice system helped her to name and define her own experience. “It’s moved me into a mindset where I’m able to deal with this situation and say I won’t tolerate unacceptable behaviour and draw a line under it. When you take a step back you see what an impact this has been having on your life for a long time,” she says.

However, the court process itself left her feeling that the system was “unfairly stacked” against victims.

McKenzie’s former partner has now been convicted of threatening and abusive behaviour in two separate cases; the latest of which saw him given a £750 fine and a five year non-harassment order, barring him from approaching her home.

“In the first case I was disappointed in the sheriff – I didn’t see there was a great understanding of domestic abuse. My partner was told to go and smooth things over and sort things out with me, with no recognition of the fact I didn’t want that,” McKenzie says.

In the second case, she says the sheriff was very understanding, but with a second conviction resulting in a small fine comparative to his means and a non-harassment order which doesn’t offer the extent of protection she expected, she is left wondering if this was worth seeing herself and her son “dragged through the whole process”.

A social background report was provided to the court in order to inform the sentencing, but such reports only feature statements from people speaking for the accused – a system which McKenzie feels fails to “recognise that the victim’s voice is really important”.

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

McKenzie reflects the view of the other women that communication throughout the process was inadequate. “I’m a tenacious woman who will seek information, but no one deserves to have to do that,” she says.

“You don’t know, as a victim, the thinking behind how the sheriff came to this decision. I think if you had an explanation for the rationale behind it, it would make it a bit easier,” she says. “I prepared myself for no non-harassment order or for a non-harassment order which I envisaged would also be protecting me when I’m not in my home, so this is a situation I hadn’t been really prepared for.”

One of McKenzie’s concerns, particularly living in a small town, is the lack of anonymity afforded to victims and witnesses in an open court. In her second case, the court was closed to the public on her request, as she believed that, even with a screen protecting her from view, her identity would be revealed.

“That this can be done in a public forum doesn’t sit right with me - in small towns across Scotland women are very identifiable and so are their children. So to say we are protecting witnesses, I don’t think that’s the case at all,” she says.

One of the major issues with this, McKenzie says, is that the defence are able to put forward claims without rebuttal from victims or witnesses. McKenzie experienced this firsthand in her first case, when information about her, which she says was “totally untrue”, was reported in the paper – albeit without her name – because it had been said in court. “People in Oban knew that was me and people in the streets made derogatory remarks to me,” she says.

Now, like each of the women sharing their experiences, McKenzie wants to have her own story heard and ensure that the system improves for other women in future.

For each of these women, speaking out and seeking justice for what they have experienced has been a vital and difficult step. And for each of them for them, a shift in how the system operates is vital if others are to feel well-served by coming forward.

Progress on some of these points is already underway; but for those experiencing domestic abuse today, change remains a matter of urgency.

All names used in this article, aside from that of Julie McKenzie, are pseudonyms.

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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