Dr Marsha Scott: Phasing out short prison sentences is a good thing - but not for domestic abusers

Responding to a recent article on CommonSpace by Maggie Mellon arguing in favour of alternatives to prison in some cases of domestic abuse, Scottish Women's Aid chief executive Dr Marsha Scott explains why the organisation disagrees

RECENT commentary by Maggie Mellon on short term prison sentences and domestic abuse raised questions about Scottish Women’s Aid’s conviction that changing the presumption against custodial sentences from three to 12 months would remove an important tool for keeping women and children safe.

A recent consultation by the Scottish Government asked stakeholders whether the "presumption against short term prison sentences" should be extended from three to 12 months. 

In short, this would mean encouraging courts not to give custodial sentences of less than 12 months, favouring instead community-based and alternative sentences. Our response – though in the minority – asked the Scottish Government to keep sentences of less than a year in domestic abuse cases as an essential tool for helping to safeguard women experiencing domestic abuse. 

Read more – Maggie Mellon: Why Scottish Women's Aid should change course on its prisons position

We support changing the presumption in other circumstances but cannot support action that takes a blanket approach to what are very different offences.

Our discussions with the Scottish Government are constructive and ongoing; we are all looking for a solution that does not further endanger women and children, while reducing imprisonment of women and other offenders. 

We would be delighted to support the policy change should measures be proposed that make women and children’s safety the priority we think it should be.

Domestic abuse and the criminal justice system (CJS) in Scotland

Bear with us here, we know the following isn’t the most exciting, but it’s really important.

There is a longstanding and deeply rooted societal misunderstanding of domestic abuse. Fundamentally, domestic abuse is not about a perpetrator losing control, it is about exerting control. 

Both a cause and consequence of women’s inequality, domestic abuse is a sustained abuse of power in a society that has for centuries seen women and children as possessions and as entitlements.

In spite of its deeply gendered origins and symptoms, the tools and models our police, prosecution and court services have to deal with domestic abuse are generalised, blunt, and not appropriate to the dynamics and underlying causes of domestic abuse. 

Though there have been recent improvements, our criminal justice system does not yet come close to offering safety to victims of domestic abuse.

There is a longstanding and deeply rooted societal misunderstanding of domestic abuse. Fundamentally, domestic abuse is not about a perpetrator losing control, it is about exerting control. 

Contrary to statements made in Maggie Mellon’s commentary, people cannot yet be prosecuted for "coercion and control", yet this is by far the most common characteristic of an abusive relationship. 

With the introduction of a Domestic Abuse Bill in the Scottish Parliament we are hopeful that this will soon change to reflect women and children’s real experiences of abuse.

Domestic abuse – a profoundly gendered form of violence – requires gendered solutions that the Scottish CJS does not yet have to keep women and children safe. Generic and non-gendered criminal justice responses such as anger management, cognitive behavioural therapy, relationship counselling, and restorative justice offered to perpetrators are wholly inappropriate and indeed dangerous in the context of domestic abuse. 

We have little systematically collected evidence that community sentences (aka 'community payback orders') are being used safely in domestic abuse cases, and we have a considerable amount of anecdotal evidence from our local groups that community disposals are rarely implemented with appropriate safeguards and that breaches have little or no consequence for perpetrators.

Bearing this in mind, custodial sentences can be the only appropriate option to help women and children get safety and keep it.

So custody is the answer?

Are short term custodial sentences imperfect and short-term responses? Absolutely. Do they offer windows of safety for women and their children to develop a plan and the safe space to implement one? Indubitably.

A perpetrator’s imprisonment gives an opportunity for victims – often supported by local Women’s Aid groups – to put in place measures that help secure their safety and wellbeing; to gain protective orders, to access new accommodation, even to gather their belongings.

Do short-term sentences rehabilitate perpetrators, decrease reoffending, or improve desistance efforts? No; nor have we ever claimed that they do. At Scottish Women’s Aid our priority is first and foremost, women, children and young people experiencing domestic abuse, and we make no apologies for that.

At Scottish Women’s Aid our priority is first and foremost, women, children and young people experiencing domestic abuse, and we make no apologies for that.

To put our argument into context, 9,688 men were convicted for domestic abuse offences in 2013-14. In the same year, only 1,406 (or 17 per cent) of those men were given custodial sentences. Of those 1,406 men sent to jail, only 107 (or eight per cent) received sentences over one year — this is one per cent of the total men convicted.

If we thought for a second that a presumption against short term sentences would mean that sheriffs would impose longer sentences of over a year, we would be minded to support this move without special provision for domestic abuse. 

But in our current environment – given that 78 per cent of the 1,406 convicted in 2013/14 were sentenced to six months or less – the more likely outcome would be an increased reliance on different, non-gendered and inappropriate disposals such as community sentences, fines, and admonishments. 

For victims of domestic abuse, these do not work.

What about women offenders?

Let us be clear: the women offenders being sent to Scotland’s prisons are our constituency as much as anyone’s. Women who are at risk of being jailed in Scotland have some of the highest rates of domestic abuse of any cohort of women you could find in Scotland, and they are a subset of the women reflected in the more than 60,000 domestic abuse police calls reported last year. 

This is not a debate about the needs of one group of women versus another.

Currently, there are about 300 women in prison in Scotland. In contrast, last year more than 60,000 calls – nearly a quarter of all police business – related to domestic abuse. 

Women at risk of being jailed have some of the highest rates of domestic abuse of any cohort of women you could find, and they are a subset of the women reflected in the more than 60,000 domestic abuse police calls reported last year. 

Yes, the vast majority of women held in custody should never have seen the inside of a prison; Scottish Women’s Aid remain passionately in favour of gendered measures to improve criminal justice responses to women offenders generally and to reducing women serving custodial sentences.

There is an argument that extending the presumption against the use of short-term sentences as currently proposed may benefit the small number of women imprisoned annually – an intended consequence. But what about the unintended consequences?

The prospect, no, the likelihood is that a new presumption would have serious and significantly disproportionate negative consequences for the many thousands of women, children and young people experiencing domestic abuse. 

This unintended but predictable consequence persuades us that we cannot support the new presumption as proposed.

Our final thoughts

Our response to the Scottish Government’s consultation was informed by the staff and women and children served by the 37 organisation in our network, from Shetland to the Borders and from Dunoon to Aberdeen. 

It was informed by women working on the ground every day to protect and support women, children and young people experiencing domestic abuse. Our response was also informed by our own expert analysis and familiarity with a rather vast literature on effective responses to domestic abuse perpetration. 

Our response was clear; in the absence of more effective responses to domestic abuse, short-term prison sentences are a necessary tool for keeping women and children safe.

Creating false dichotomies and pitting the needs of one group of women against another is frankly unhelpful. 

The task at hand is to give us more and better tools for keeping women and children safe; let’s get on with it.

Picture courtesy of Janine

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