The Moorov doctrine and coercive control: Proving a ‘course of behaviour’ under s. 1 of the Domestic Abuse (Scotland) Act 2018

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.

Reflecting on Legal Responses to Intimate Partner Femicide in Scotland

“…A leading expert on coercive control, Evan Stark, has described this approach to criminalizing coercive control as the “gold standard” (Scott, 2020). However, concerns about the problems of evidencing coercive and controlling conduct in practice have been raised given the continued existence of the formal requirement of corroboration in Scotland and the fact that this is a “course of conduct offense” (Cairns, 2020). Although the formal requirement for corroboration serves to render the Scottish landscape unique within the UK, evidencing domestic abuse has been recognized as a problem more widely (Bishop & Bettinson, 2018).…”

‘Gold Standard' Legislation for Adults Only: Reconceptualising Children as ‘Adjoined Victims' Under the Domestic Abuse (Scotland) Act 2018

“…Under the current framework, notwithstanding the statutory terms, it is possible that an absence of proof of actual harm to the child currently deters prosecutors from using the aggravation, which we have also shown to be unprincipled as a model. Furthermore, evidential concerns currently exist for adult victims due to Scotland’s corroboration requirement and the fact that actual harm does not require to be established under section 1 (see Cairns, 2020). For the parallel offence, however, unique challenges arising from the corroboration requirement would be avoided, because the conditions of the parallel offence would not require the mens rea and actus reus of section 1 to be established separately in relation to the child.…”