Abstract
In 2019, a distinct offence of ‘abusive behaviour towards partner or ex-partner’ (‘domestic abuse’) came into force in Scotland via s. 1 of the Domestic Abuse (Scotland) Act 2018. This new offence has been celebrated for its meaningful incorporation of the concept of coercive control (Evan Stark has described the 2018 Act as ‘gold standard’ legislation) and may serve as a model for other jurisdictions looking to criminalise coercive and controlling behaviours. The practical effectiveness of the offence in Scotland, however, will hinge on how Scotland’s corroboration rule, and the accompanying Moorov doctrine (‘ Moorov’), are applied in this context. Drawing both on recent doctrinal developments and on a conceptual understanding of the dynamics of coercive control, this article offers the first in-depth analysis of how Moorov is likely to apply in s. 1 cases. It identifies developments that are likely to assist the prosecution, as well as potential barriers to the doctrine’s successful application, and argues that in certain cases judges and jurors will have difficulty seeing the ‘course of conduct’ required by Moorov without proper understanding of the policy underpinning the Act and the gendered nature of domestic abuse. The article considers how this understanding may be brought about, both within the confines of the current law and in terms of possible reform.
Highlights
It is increasingly recognised that overcoming evidential challenges will be key to ensuring the effectiveness of the recent global wave of legislation criminalising coercive and controllingThe Scottish doctrine of mutual corroboration—the Moorov doctrine3—alleviates the inherent evidential challenges in this area to a certain extent, and its successful application will be pivotal to securing prosecutions and convictions under the 2018 Act
In addition to providing an up-to-date account of the precise factors and considerations that are relevant to establishing a course of conduct under Moorov, and an assessment of how these are likely to apply in the context of proving the distinct offence of domestic abuse, this article draws on case law to identify several potential stumbling blocks to the doctrine’s successful application in s. 1 cases
While proper judicial training and jury directions on domestic abuse/coercive control are necessary, and are likely to have value both in terms of ensuring that Moorov meets its full potential in this context and more generally, it is important to be realistic about the extent to which either can transform deeply engrained attitudes
Summary
It is increasingly recognised that overcoming evidential challenges will be key to ensuring the effectiveness of the recent global wave of legislation criminalising coercive and controllingThe Scottish doctrine of mutual corroboration—the Moorov doctrine3—alleviates the inherent evidential challenges in this area to a certain extent, and its successful application will be pivotal to securing prosecutions and convictions under the 2018 Act.
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