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Domestic abuse law becoming "fragmented", Society fears

9 May 2017

Concerns that the law regarding domestic abuse is becoming "increasingly fragmented" have been expressed by the Law Society of Scotland in its evidence to the Holyrood committee examining the Scottish Government's Domestic Abuse (Scotland) Bill.

The bill creates a new offence of domestic abuse of a partner or former partner, which can include psychological as well as physical abuse, such as coercive or controlling behaviour. Among the questions raised by the Society are why the partner limitation is written into the new provision.

While supporting further improvements in the way the criminal justice system responds to abusive behaviour, including domestic abuse, the Society states that as various forms of such behaviour can already be prosecuted under existing legislation, the new bill may create further fragmentation, rather than properly address the issue. 

It notes that "any such law must be practically enforceable and more work needs to be done to tackle the practical issues that such legislation would encounter, in particular in relation to acquiring sufficient evidence to bring a prosecution".

Last week the Faculty of Advocates in its submission questioned the definiion adopted in the legislation (click here for report). The Society is also concerned that the current proposal does not satisfactorily meet the requirement of legal certainty.

Ian Cruickshank, convener of the Criminal Law Committee, commented: “We would welcome changes to existing law which would better reflect the current understanding of what constitutes domestic abuse and which could provide greater protection for victims or potential victims of psychological abuse. We recognise there are difficulties in prosecuting certain forms of domestic abuse and this is something that needs to be addressed.

”We’re not convinced, however, that the case has been made for the creation of a distinct offence of domestic abuse which is confined to partners and ex-partners, not least because much of this behaviour can already be prosecuted under existing legislation. There is a statutory offence of threatening or abusive behaviour in the Criminal Justice and Licensing (Scotland) Act 2010, and the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 provides for a new specific ‘domestic abuse’ statutory aggravation where the abuse is of either a partner or an ex-partner."

He added: “Domestic abuse is not solely confined to intimate partners – adult siblings or other relatives, parents and adult children, particularly if they have learning difficulties or mental health problems, and even people living in shared houses may all experience similar abuse, including psychological harm.”

The Society also believes that as part of any measure to improve the way the criminal justice system responds to abusive behaviour, including domestic abuse, there should be support for victims and those who have physically or emotionally abused their partners.

Mr Cruickshank observed: “We think it’s important that people who have abused their partners should get support in order to recognise the impact of their abusive behaviour and learn how to change their behaviour to try to prevent them repeating this behaviour.”

Click here to view the full response.


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