Proposed domestic abuse offence is part of support measures consultation

Specific new criminal offences directed at domestic abuse, and "revenge porn" misuse of social media, are among the proposals in a new Scottish Government consultation on further support for victims of domestic abuse and sexual offences.

Launched at a Scottish Women's Aid conference in Edinburgh by First Minister Nicola Sturgeon, the consultation looks at five key areas, also including jury directions on certain matters, court disposals where an accused is unfit to stand trial, and extraterritorial jurisdiction of Scots law.

Regarding domestic abuse, the consultation questions whether the present offence of "threatening or abusive behaviour" covers the "more subtle forms of controlling or coercive behaviour", such as preventing the victim from having contact with friends or family, or exerting undue control over the victim's financial affairs, as well as the impact of ongoing controlling or coercive behaviour on specific incidents of violence or threatening behaviour.

"A single specific offence of 'domestic abuse' which used a definition of domestic abuse, based, for example, on the working definitions used by the police and [Crown Office & Procurator Fiscal Service], would enable a court to consider the whole context of an abusive relationship – both the incidents of threats and violence and acts of emotional abuse and psychological control, when prosecuting an alleged offender", it states.

It also suggests a specific statutory aggravation where a criminal offence is committed against a background of domestic abuse.

On revenge porn – the posting online, without the subject's consent, of intimate images as a way of getting back at someone with whom the poster was formerly in a relationship – the paper follows up a suggestion last year by the Lord Advocate that a specific offence would send a signal that those who do such things may face jail. The paper suggest it may also encourage victims to come forward. It asks what types of images should be covered, and in what circumstances the offence would be committed, as well as for views on appropriate penalties and possible defences.

For jury cases, the consultation seeks views on how to ensure that juries are given appropriate directions on the issues when there is a significant period of time between a sexual offence being committed and being reported to the police, and the absence of physical force used by the assailant and/or lack of resistance by a victim in sexual offence cases. It asks whether there should be a statutory requirement to point out to the jury that there may be good reasons why a victim would have behaved in such a way – as is already the law in New South Wales in cases of delay.

Where the alleged perpetrator is unfit to stand trial, the paper asks whether is should be possible to impose a non-harassment order, and whether any other approaches would protect victims of stalking or harassment.

Finally, it asks whether the provisions concerning extraterritorial effect of Scots law on sexual offences against children should be amended to enable Scottish courts to prosecute offences committed in other jurisdictions within the United Kingdom. Supplementary questions relate to equal opportunities and other impacts.

Ms Sturgeon commented: “Domestic abuse in law can be challenging, therefore we need to ensure that our legislation commands wide support, anticipates possible pitfalls, and allows us to prosecute the people who perpetrate these crimes.

“If there is a consensus on what we need to do, we will legislate in this Parliament. But if we need to do further work with stakeholders to ensure we get this absolutely right, we will do so.

“Either way, we will make clear that ongoing coercive and controlling behaviour is unacceptable; and that those who commit such crimes will face justice. We know that changing the law isn’t enough on its own – but it can play an important part in the wider social and cultural changes we want to bring about.”

Click here to view the consultation. The deadline for responses is 19 June 2015.