Domestic Abuse Domestic Abuse (Scotland) Bill(Scotland) Bill

Introduced by Rhoda GrantIntroduced by Rhoda Grant2727thth May 2010 May 2010

OBJECTIVES:OBJECTIVES: To increase access to justice for victims of To increase access to justice for victims of

domestic abuse; anddomestic abuse; and To enable police and prosecutors to provide a To enable police and prosecutors to provide a

more robust response to breached civil more robust response to breached civil protection ordersprotection orders

To achieve these objectives…To achieve these objectives…

Removal of ‘course of conduct’ requirement for Removal of ‘course of conduct’ requirement for non-harassment orders for domestic abuse non-harassment orders for domestic abuse casescases

Removal of means testing for legal aid Removal of means testing for legal aid applications in respect of certain domestic abuse applications in respect of certain domestic abuse related proceedingsrelated proceedings

Creates new criminal offence of breaching a Creates new criminal offence of breaching a domestic abuse related interdictdomestic abuse related interdict

Provides a statutory definition of domestic abuseProvides a statutory definition of domestic abuse

Criminal or Civil Remedy?Criminal or Civil Remedy?

Scottish Government definition of Scottish Government definition of domestic abuse focuses on much more domestic abuse focuses on much more than what can be covered by a ‘crime’ or than what can be covered by a ‘crime’ or ‘offence’‘offence’

No such crime as domestic abuseNo such crime as domestic abuse ‘‘Breach of the Peace’… and recent Breach of the Peace’… and recent

changes to itchanges to it A woman may not want to criminalise her A woman may not want to criminalise her

partner…etcpartner…etc

Civil RemediesCivil Remedies

Interdict with no power of arrestInterdict with no power of arrest Prohibits commencement or continuation of Prohibits commencement or continuation of

specified behaviourspecified behaviour If breached, a civil action is raised which can If breached, a civil action is raised which can

be cumbersome, ineffective and expensivebe cumbersome, ineffective and expensive

Interdict with a power of arrestInterdict with a power of arrest

Prohibits commencement or continuation of Prohibits commencement or continuation of specified behaviourspecified behaviour

Can be arrested if reasonable cause to Can be arrested if reasonable cause to suspect that the interdict has been breached suspect that the interdict has been breached andand, if that person were not arrested, they , if that person were not arrested, they would be a risk of abuse or further abuse, can would be a risk of abuse or further abuse, can be detained by a Sheriff for further 2 daysbe detained by a Sheriff for further 2 days

Was not a criminal act if breachedWas not a criminal act if breached

Non-harassment order (Section 8, Non-harassment order (Section 8, Protection from Harassment Act 1997)Protection from Harassment Act 1997)

Every individual has the right to be free from Every individual has the right to be free from harassmentharassment

Course of conduct (Two different occasions)Course of conduct (Two different occasions) Breach is criminal punishable by 5 years Breach is criminal punishable by 5 years

imprisonmentimprisonment

Legal AidLegal Aid

Unless they qualify for legal aid, victims of Unless they qualify for legal aid, victims of domestic abuse are generally required to domestic abuse are generally required to meet the cost of civil protection / meet the cost of civil protection / proceedingsproceedings

Civil cases – 2 types of legal aidCivil cases – 2 types of legal aid ‘‘Advice and assistance’ Advice and assistance’ ‘‘Civil legal aid’Civil legal aid’ Together they are called ‘Civil legal Together they are called ‘Civil legal

assistance’assistance’

Section 4 of the BillSection 4 of the Bill Provided the following statutory definition of Provided the following statutory definition of

domestic abusedomestic abuse ““any abuse perpetrated against a person who-any abuse perpetrated against a person who-a) Is (or was formerly)-a) Is (or was formerly)-

i) married to or the civil partner of, ori) married to or the civil partner of, orii) a partner in an established relationship of any ii) a partner in an established relationship of any length with, length with,

the person who carried out the abuse (“the the person who carried out the abuse (“the perpetrator”), orperpetrator”), or

b) Is the perpetrator’s parent, child, grandparent or b) Is the perpetrator’s parent, child, grandparent or grandchild (whether by blood or by adoption)”grandchild (whether by blood or by adoption)”

Domestic Abuse Domestic Abuse (Scotland) Act 2011(Scotland) Act 2011

The Bill was passed by Parliament on The Bill was passed by Parliament on 1616thth March and received Royal Assent March and received Royal Assent

on 20on 20thth April 2011 April 2011Passed at stage 3Passed at stage 3

Statutory DefinitionStatutory Definition

Stage 1 recommendation to include a Stage 1 recommendation to include a statutory definition of "domestic abuse" in statutory definition of "domestic abuse" in the legislation. It said the definition should the legislation. It said the definition should be restricted to generally accepted be restricted to generally accepted categories of partners and not extended to categories of partners and not extended to cover other family relationships.cover other family relationships.

‘‘Removal of means testing for Removal of means testing for legal aid applications in respect of legal aid applications in respect of

certain domestic abuse related certain domestic abuse related proceedings’proceedings’

This provision was removed at This provision was removed at stage 2stage 2

Protection from Harassment Act Protection from Harassment Act 19971997

Section 8a – Harassment amounting to Section 8a – Harassment amounting to domestic abusedomestic abuse

The words …‘course of’…have been The words …‘course of’…have been removed and other amendments made in removed and other amendments made in the wording of the legislation, to remove the wording of the legislation, to remove the requirement to prove a ‘course of the requirement to prove a ‘course of conduct’conduct’

Breach of domestic abuse Interdict with Breach of domestic abuse Interdict with power of arrestpower of arrest

Guilty of an offenceGuilty of an offence A person guilty of an offence is liable A person guilty of an offence is liable

Imprisonment of maximum 5 yearsImprisonment of maximum 5 years Includes interim interdictsIncludes interim interdicts Determination as to whether an interdict is a Determination as to whether an interdict is a

domestic abusedomestic abuse interdict interdict

Determination as to whether an interdict Determination as to whether an interdict is a domestic abuse interdictis a domestic abuse interdict

Protection of the applicant against a person Protection of the applicant against a person who is (or was)-who is (or was)-

a)a) The applicant’s spouse,The applicant’s spouse,

b)b) The applicant’s civil partner,The applicant’s civil partner,

c)c) Living with the applicant as if they were Living with the applicant as if they were husband and wife or civil partners, or husband and wife or civil partners, or

d)d) In an intimate personal relationship with In an intimate personal relationship with the applicantthe applicant

Sexual Offences in ScotlandSexual Offences in Scotland

Concern that law is out-datedConcern that law is out-dated 2004, Scottish Ministers asked the 2004, Scottish Ministers asked the

Scottish Law Commission (SLC) to Scottish Law Commission (SLC) to ‘examine the law relating to such offences ‘examine the law relating to such offences and the evidential requirements for proving and the evidential requirements for proving such offences and to make such offences and to make recommendations for reform’recommendations for reform’

SLC published report in December 2007SLC published report in December 2007

Report concluded that…Report concluded that…

Existing law was fragmentedExisting law was fragmented Mixture of common law and statute lawMixture of common law and statute law Far from clear to ordinary members of the Far from clear to ordinary members of the

publicpublic Codification (enshrining in law) would be a Codification (enshrining in law) would be a

significant improvementsignificant improvement

Sexual Offences (Scotland) Act Sexual Offences (Scotland) Act 20092009

Creates a whole new set of statutory Creates a whole new set of statutory offencesoffences

Rectifies inconsistencies in current lawRectifies inconsistencies in current law Sets down a definition of ‘consent’Sets down a definition of ‘consent’ Common law Rape; Sodomy; Lewd and Common law Rape; Sodomy; Lewd and

Libidinous Practices or Behaviours have Libidinous Practices or Behaviours have been abolishedbeen abolished

Number of statutory offences abolishedNumber of statutory offences abolished Common law ‘Indecent assault’ remainsCommon law ‘Indecent assault’ remains

Sexual Offences (Scotland) Act Sexual Offences (Scotland) Act 20092009

Certain conduct is classified as a “Type of Certain conduct is classified as a “Type of wrong”wrong”

The Act thereafter in general applies these The Act thereafter in general applies these wrongs to victims who arewrongs to victims who are Adults of full capacityAdults of full capacity Young childrenYoung children Older childrenOlder children Persons suffering from mental disorder andPersons suffering from mental disorder and Those in respect of whom the accused holds a Those in respect of whom the accused holds a

position of trustposition of trust

Sexual Offences (Scotland) Act Sexual Offences (Scotland) Act 20092009

Part 1: Non-Consensual Offences (s1-10)Part 1: Non-Consensual Offences (s1-10) Part 2: Consent and Reasonable BeliefPart 2: Consent and Reasonable Belief Part 3: Capacity to Consent of Persons Part 3: Capacity to Consent of Persons

with Mental Disorderwith Mental Disorder Part 4: Child Sex OffencesPart 4: Child Sex Offences Part 5: Position of TrustPart 5: Position of Trust Part 6: PenaltiesPart 6: Penalties Part 7: Miscellaneous and GeneralPart 7: Miscellaneous and General

Rape (s.1)Rape (s.1)

Major changesMajor changes Can now be male or female victimCan now be male or female victim Penetration to include vagina, anus or mouthPenetration to include vagina, anus or mouth Accused’s mistaken belief must now be Accused’s mistaken belief must now be

“reasonable” rather than “honest”“reasonable” rather than “honest” (Still only penile penetration) (Still only penile penetration)

Sexual Assault by Penetration Sexual Assault by Penetration (s.2)(s.2)

Intentionally or recklessly penetrates the vagina Intentionally or recklessly penetrates the vagina or anus of another personor anus of another person

Penetrated by any part of the body or any other Penetrated by any part of the body or any other objectobject

Designed to tackle situations where the victim Designed to tackle situations where the victim knows that they have been penetrated however knows that they have been penetrated however they cannot say what penetrated them, ie they cannot say what penetrated them, ie because they were blindfolded (previously because they were blindfolded (previously libelled as indecent assault)libelled as indecent assault)

Sexual Assault (s.3)Sexual Assault (s.3)

Intentionally or recklesslyIntentionally or recklessly Sexually penetrate the vagina, anus or mouth Sexually penetrate the vagina, anus or mouth

of another personof another person Sexually touchSexually touch Engage in any other form of sexual activity Engage in any other form of sexual activity

resulting in physical contact, whether directly resulting in physical contact, whether directly or through clothing, and whether with a body or through clothing, and whether with a body part or with an implementpart or with an implement

Ejaculate semen or to emit urine or saliva on Ejaculate semen or to emit urine or saliva on to victimto victim

Sexual Offences (Scotland) Act Sexual Offences (Scotland) Act 20092009

Part 1Part 1 S.4 Sexual coercionS.4 Sexual coercion S.5 Coercing a person into being present during a S.5 Coercing a person into being present during a

sexual activitysexual activity S.6 Coercing a person into looking at a sexual imageS.6 Coercing a person into looking at a sexual image S.7 Communicating indecently etcS.7 Communicating indecently etc S.8 Sexual exposureS.8 Sexual exposure S.9 VoyeurismS.9 Voyeurism S.10 Interpretation of section 9S.10 Interpretation of section 9 S.11 Administering a substance for a sexual purposeS.11 Administering a substance for a sexual purpose

Meaning of Consent (s.12)Meaning of Consent (s.12)

S.12 provides a definition of “consent” as S.12 provides a definition of “consent” as “free agreement”“free agreement”

S.13 Statutory list of situations where S.13 Statutory list of situations where there is no free agreementthere is no free agreement

S.16 “reasonable belief” not defined within S.16 “reasonable belief” not defined within the Act - it will be for the court or jury to the Act - it will be for the court or jury to decidedecide

Part 3 - Capacity to Consent Part 3 - Capacity to Consent (s.17)(s.17)

A person is incapable of consenting to A person is incapable of consenting to conduct where, by reason of a mental conduct where, by reason of a mental disorder, he or she is unable to do one or disorder, he or she is unable to do one or more of the following:more of the following: Understand what the conduct is;Understand what the conduct is; Form a decision as to whether to engage in Form a decision as to whether to engage in

the conduct, or as to whether the conduct the conduct, or as to whether the conduct should take place; orshould take place; or

Communicate any such decisionCommunicate any such decision

Part 4 - Child Sex Offences Part 4 - Child Sex Offences

Covers Sexual Activity with children who Covers Sexual Activity with children who are under 16 yearsare under 16 years

Distinguishes between… Distinguishes between… ““young children” aged under 13 years young children” aged under 13 years

deemed to have no capacity to consent anddeemed to have no capacity to consent and ““older children” aged 13-15 years considered older children” aged 13-15 years considered

to have a limited capacity to consentto have a limited capacity to consent

Part 5 – Abuse of Position of Part 5 – Abuse of Position of TrustTrust

Sexual abuse of trustSexual abuse of trust 18 years or over and18 years or over and Intentionally engages in a sexual activity with, orIntentionally engages in a sexual activity with, or Directed atDirected at A person who is under 18 yearsA person who is under 18 years And in respect of whom the perpetrator is in a position And in respect of whom the perpetrator is in a position

of trustof trust Position of trust if any of the 5 conditions set out Position of trust if any of the 5 conditions set out

in the Act are fulfilledin the Act are fulfilled