Faculty queries domestic abuse definition

A key element of the bill to outlaw psychological domestic abuse in Scotland has been called into question by the Faculty of Advocates.

In its response to the Scottish Parliament’s Justice Committee's call for evidence on the Domestic Abuse (Scotland) Bill, Faculty says it fears the measure “does not capture or reflect” an important distinction between coercive control and limited incidents of abusive behaviour which are not used to control a partner.

While reiterating its support for a specific offence of abusive behaviour, Faculty comments that creating an offence to cover physical and non-physical abuse is “challenging”.

It observes that the official definition of domestic abuse in Scotland, developed by the National Strategy to Address Domestic Abuse, contains behaviours which are not currently criminalised but common in abusive relationships, such as depriving or controlling freedom of action.

“The Faculty recognises that where such behaviours occur against a background of coercive control, such behaviours can be very damaging and should, ideally, be prohibited by law,” the response states.

Faculty said it was necessary for the bill to distinguish non-physical incidents which could come under the category of “common couple violence” – occurrence of one or two incidents which are not used as part of a pattern of behaviour to control the partner – and coercive control.

“The Faculty appreciates that to incorporate such a distinction into legislation is complex and has been attempted in this bill by the reference to ‘a course of behaviour which is abusive’, which is defined as being on at least two occasions.

“Whilst this definition avoids criminalisation of single isolated incidents, the Faculty is of the view that it does not capture or reflect the distinction between coercive control and common couple violence.”

It adds that it takes the view that a defence of reasonableness should be available in respect of the offence of abusive behaviour, albeit the bill offers a limited definition of reasonableness.

Click here to view the full response.