The Domestic Abuse (Scotland) Act 2018 has now come into full effect as of 1 April 2019.
As of 1 April 2019, a person commits an offence if they engage in a course of behaviour which is abusive to their partner or ex-partner. The person commits an offence if a “reasonable person” would consider the course of behaviour likely to cause the person to suffer physical or psychological harm. Psychological harm under the legislation includes fear, alarm and distress. The “reasonable person” test allows the court to be objective in their view while also taking into account the individual circumstances of each case.
What constitutes abusive behaviour under the Act?
Under the new legislation, behaviour which will be considered as abusive includes behaviour that is violent, threatening or intimidating and would be considered to have or more of the following effects:
- Making the partner or ex-partner feel subordinate;
- Isolation from friends, relatives, or other sources of support;
- Controlling, regulating or monitoring their day-to-day activities;
- Depriving of or restricting freedom of action;
- Frightening, humiliating, degrading or punishing.
What is the scope of the new legislation?
Under the Act, behaviour is defined as behaviour of any kind, including saying or otherwise communicating something as well as doing something in relation to the points outlined above. This also includes deliberate failure to do something. The behaviour must happen on at least two occasions but need not be same behaviour in order to use the remedies in the Act. For example, this might be failure to allow the victim to have access to bank accounts or their personal phone which is common in abuse cases. It is the course of behaviour considered to cause harm that is important.
The meaning of partner or ex-partner is broad under the new legislation. Someone is a person’s partner if they are spouses or civil partners, living together as if spouses, or in an intimate personal relationship with each other.
What are the implications?
Under current legislation, victims of abuse can apply for specific court orders such as exclusion orders, common law interdict, power and arrest and non-harassment orders. The new legislation now provides further remedies including up to 12 months imprisonment or a fine (or both) for victims of domestic abuse dealing with the more psychological aspects outlined above such as frightening, humiliating and degrading behaviour. The Act is a huge step forward for domestic abuse victims as it allows for prosecution of both physical and emotional abuse.
If you are currently experiencing domestic abuse and require expert help on the available options to you, please contact our experienced team on 0131 622 8477.