Clear definition, and consideration of the practical issues that will arise, are needed on proposals for a new law of domestic abuse if it is to help those affected by either physical or psychological abuse, according to the Law Society of Scotland.
The Society today published its response to a Scottish Government consultation seeking views on a draft provision to create a specific offence of "abusive behaviour in relation to a partner or ex-partner", which is intended to reach beyond physical violence to other forms of coercive control.
Grazia Robertson, a member of the Society's Criminal Law Committee said the Society accepted that psychological abuse or coercive control could amount to criminal behaviour in the same way as any physically abusive behaviour, but believed that "There needs to be more clarity on what any gap in existing law might be and [we] need to examine if existing law is working effectively. It will also be essential that any offence extending beyond physical abuse or behaviour currently forbidden by the law, is clearly defined."
Like the Faculty of Advocates last week (click here for report), the Society is concerned at the increasing fragmentation of the law in this area around different statutory provisions. Its response also emphasises the need for an appropriate mental element in any new offence. Differing somewhat from the Faculty's approach, it agrees with the proposed approach to the objective "reasonable person" test, but doubts whether it is possible that the proposed offence could be committed recklessly.
On the practical issues she added: "In particular we think there could be difficulties for the Crown in acquiring sufficient evidence to justify a prosecution, especially in cases where no physical harm has been caused.”
The Society further suggests that in addition to providing support for victims of abuse, there should also be support for those who have either emotionally or physically abused their partners so they can recognise the impact of their abusive behaviour, and learn how to change their behaviours to prevent a recurrence.
Ms Robertson commented: “As a society we want to prevent as well as punish any wrongdoing, and having clarity on what amounts to criminal behaviour is part of that. Support and education for those who have abused partners would have a role to play if we are to stop recurring patterns of behaviour.
“We also think that there should be further consideration given to the type of relationships covered by this offence. In England & Wales similar legislation also covers other relationships, such as between adult siblings or other relatives, including parents, adult children or those who may not be relatives but are living in shared properties.”