1. Domestic Abuse (Scotland) Bill

2. Introduced by Rhoda Grant 27 th May 2010 OBJECTIVES: OBJECTIVES: To increase access to justice for victims of domestic abuse; and To increase access to justice for victims of domestic abuse; and To enable police and prosecutors to provide a more robust response to breached civil protection orders To enable police and prosecutors to provide a more robust response to breached civil protection orders

3. To achieve these objectives… Removal of ‘course of conduct’ requirement for non-harassment orders for domestic abuse cases Removal of ‘course of conduct’ requirement for non-harassment orders for domestic abuse cases Removal of means testing for legal aid applications in respect of certain domestic abuse related proceedings Removal of means testing for legal aid applications in respect of certain domestic abuse related proceedings Creates new criminal offence of breaching a domestic abuse related interdict Creates new criminal offence of breaching a domestic abuse related interdict Provides a statutory definition of domestic abuse Provides a statutory definition of domestic abuse

4. Criminal or Civil Remedy? Scottish Government definition of domestic abuse focuses on much more than what can be covered by a ‘crime’ or ‘offence’ Scottish Government definition of domestic abuse focuses on much more than what can be covered by a ‘crime’ or ‘offence’ No such crime as domestic abuse No such crime as domestic abuse ‘Breach of the Peace’… and recent changes to it ‘Breach of the Peace’… and recent changes to it A woman may not want to criminalise her partner…etc A woman may not want to criminalise her partner…etc

5. Civil Remedies Interdict with no power of arrest Interdict with no power of arrest Prohibits commencement or continuation of specified behaviour Prohibits commencement or continuation of specified behaviour If breached, a civil action is raised which can be cumbersome, ineffective and expensive If breached, a civil action is raised which can be cumbersome, ineffective and expensive

6. Interdict with a power of arrest Prohibits commencement or continuation of specified behaviour Prohibits commencement or continuation of specified behaviour Can be arrested if reasonable cause to suspect that the interdict has been breached and, if that person were not arrested, they would be a risk of abuse or further abuse, can be detained by a Sheriff for further 2 days Can be arrested if reasonable cause to suspect that the interdict has been breached and, if that person were not arrested, they would be a risk of abuse or further abuse, can be detained by a Sheriff for further 2 days Was not a criminal act if breached Was not a criminal act if breached

7. Non-harassment order (Section 8, Protection from Harassment Act 1997) Every individual has the right to be free from harassment Every individual has the right to be free from harassment Course of conduct (Two different occasions) Course of conduct (Two different occasions) Breach is criminal punishable by 5 years imprisonment Breach is criminal punishable by 5 years imprisonment

8. Legal Aid Unless they qualify for legal aid, victims of domestic abuse are generally required to meet the cost of civil protection / proceedings Unless they qualify for legal aid, victims of domestic abuse are generally required to meet the cost of civil protection / proceedings Civil cases – 2 types of legal aid Civil cases – 2 types of legal aid ‘Advice and assistance’ ‘Advice and assistance’ ‘Civil legal aid’ ‘Civil legal aid’ Together they are called ‘Civil legal assistance’ Together they are called ‘Civil legal assistance’

9. Section 4 of the Bill Provided the following statutory definition of domestic abuse Provided the following statutory definition of domestic abuse “any abuse perpetrated against a person who- “any abuse perpetrated against a person who- a) Is (or was formerly)- i) married to or the civil partner of, or ii) a partner in an established relationship of any length with, the person who carried out the abuse (“the perpetrator”), or b) Is the perpetrator’s parent, child, grandparent or grandchild (whether by blood or by adoption)”

10. Domestic Abuse (Scotland) Act 2011 The Bill was passed by Parliament on 16 th March and received Royal Assent on 20 th April 2011 Passed at stage 3

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

12. ‘Removal of means testing for legal aid applications in respect of certain domestic abuse related proceedings’ This provision was removed at stage 2

13. Protection from Harassment Act 1997 Section 8a – Harassment amounting to domestic abuse The words …‘course of’…have been removed and other amendments made in the wording of the legislation, to remove the requirement to prove a ‘course of conduct’

14. Breach of domestic abuse Interdict with power of arrest Guilty of an offence Guilty of an offence A person guilty of an offence is liable A person guilty of an offence is liable Imprisonment of maximum 5 years Imprisonment of maximum 5 years Includes interim interdicts Includes interim interdicts Determination as to whether an interdict is a domestic abuse interdict Determination as to whether an interdict is a domestic abuse interdict

15. Determination as to whether an interdict is a domestic abuse interdict Protection of the applicant against a person who is (or was)- a) The applicant’s spouse, b) The applicant’s civil partner, c) Living with the applicant as if they were husband and wife or civil partners, or d) In an intimate personal relationship with the applicant

16. Sexual Offences in Scotland Concern that law is out-dated Concern that law is out-dated 2004, Scottish Ministers asked the Scottish Law Commission (SLC) to ‘examine the law relating to such offences and the evidential requirements for proving such offences and to make recommendations for reform’ 2004, Scottish Ministers asked the Scottish Law Commission (SLC) to ‘examine the law relating to such offences and the evidential requirements for proving such offences and to make recommendations for reform’ SLC published report in December 2007 SLC published report in December 2007

17. Report concluded that… Existing law was fragmented Existing law was fragmented Mixture of common law and statute law Mixture of common law and statute law Far from clear to ordinary members of the public Far from clear to ordinary members of the public Codification (enshrining in law) would be a significant improvement Codification (enshrining in law) would be a significant improvement

18. Sexual Offences (Scotland) Act 2009 Creates a whole new set of statutory offences Creates a whole new set of statutory offences Rectifies inconsistencies in current law Rectifies inconsistencies in current law Sets down a definition of ‘consent’ Sets down a definition of ‘consent’ Common law Rape; Sodomy; Lewd and Libidinous Practices or Behaviours have been abolished Common law Rape; Sodomy; Lewd and Libidinous Practices or Behaviours have been abolished Number of statutory offences abolished Number of statutory offences abolished Common law ‘Indecent assault’ remains Common law ‘Indecent assault’ remains

19. Sexual Offences (Scotland) Act 2009 Certain conduct is classified as a “Type of wrong” Certain conduct is classified as a “Type of wrong” The Act thereafter in general applies these wrongs to victims who are The Act thereafter in general applies these wrongs to victims who are Adults of full capacity Adults of full capacity Young children Young children Older children Older children Persons suffering from mental disorder and Persons suffering from mental disorder and Those in respect of whom the accused holds a position of trust Those in respect of whom the accused holds a position of trust

20. Sexual Offences (Scotland) Act 2009 Part 1: Non-Consensual Offences (s1-10) Part 1: Non-Consensual Offences (s1-10) Part 2: Consent and Reasonable Belief Part 2: Consent and Reasonable Belief Part 3: Capacity to Consent of Persons with Mental Disorder Part 3: Capacity to Consent of Persons with Mental Disorder Part 4: Child Sex Offences Part 4: Child Sex Offences Part 5: Position of Trust Part 5: Position of Trust Part 6: Penalties Part 6: Penalties Part 7: Miscellaneous and General Part 7: Miscellaneous and General

21. Rape (s.1) Major changes Major changes Can now be male or female victim Can now be male or female victim Penetration to include vagina, anus or mouth Penetration to include vagina, anus or mouth Accused’s mistaken belief must now be “reasonable” rather than “honest” Accused’s mistaken belief must now be “reasonable” rather than “honest” (Still only penile penetration) (Still only penile penetration)

22. Sexual Assault by Penetration (s.2) Intentionally or recklessly penetrates the vagina or anus of another person Intentionally or recklessly penetrates the vagina or anus of another person Penetrated by any part of the body or any other object Penetrated by any part of the body or any other object Designed to tackle situations where the victim knows that they have been penetrated however they cannot say what penetrated them, ie because they were blindfolded (previously libelled as indecent assault) Designed to tackle situations where the victim knows that they have been penetrated however they cannot say what penetrated them, ie because they were blindfolded (previously libelled as indecent assault)

23. Sexual Assault (s.3) Intentionally or recklessly Intentionally or recklessly Sexually penetrate the vagina, anus or mouth of another person Sexually penetrate the vagina, anus or mouth of another person Sexually touch Sexually touch Engage in any other form of sexual activity resulting in physical contact, whether directly or through clothing, and whether with a body part or with an implement Engage in any other form of sexual activity resulting in physical contact, whether directly or through clothing, and whether with a body part or with an implement Ejaculate semen or to emit urine or saliva on to victim Ejaculate semen or to emit urine or saliva on to victim

24. Sexual Offences (Scotland) Act 2009 Part 1 Part 1 S.4 Sexual coercion S.4 Sexual coercion S.5 Coercing a person into being present during a sexual activity S.5 Coercing a person into being present during a sexual activity S.6 Coercing a person into looking at a sexual image S.6 Coercing a person into looking at a sexual image S.7 Communicating indecently etc S.7 Communicating indecently etc S.8 Sexual exposure S.8 Sexual exposure S.9 Voyeurism S.9 Voyeurism S.10 Interpretation of section 9 S.10 Interpretation of section 9 S.11 Administering a substance for a sexual purpose S.11 Administering a substance for a sexual purpose

25. Meaning of Consent (s.12) S.12 provides a definition of “consent” as “free agreement” S.12 provides a definition of “consent” as “free agreement” S.13 Statutory list of situations where there is no free agreement S.13 Statutory list of situations where there is no free agreement S.16 “reasonable belief” not defined within the Act - it will be for the court or jury to decide S.16 “reasonable belief” not defined within the Act - it will be for the court or jury to decide

26. Part 3 - Capacity to Consent (s.17) A person is incapable of consenting to conduct where, by reason of a mental disorder, he or she is unable to do one or more of the following: A person is incapable of consenting to conduct where, by reason of a mental disorder, he or she is unable to do one or more of the following: Understand what the conduct is; Understand what the conduct is; Form a decision as to whether to engage in the conduct, or as to whether the conduct should take place; or Form a decision as to whether to engage in the conduct, or as to whether the conduct should take place; or Communicate any such decision Communicate any such decision

27. Part 4 - Child Sex Offences Covers Sexual Activity with children who are under 16 years Covers Sexual Activity with children who are under 16 years Distinguishes between… Distinguishes between… “young children” aged under 13 years deemed to have no capacity to consent and “young children” aged under 13 years deemed to have no capacity to consent and “older children” aged 13-15 years considered to have a limited capacity to consent “older children” aged 13-15 years considered to have a limited capacity to consent

28. Part 5 – Abuse of Position of Trust Sexual abuse of trust Sexual abuse of trust 18 years or over and 18 years or over and Intentionally engages in a sexual activity with, or Intentionally engages in a sexual activity with, or Directed at Directed at A person who is under 18 years A person who is under 18 years And in respect of whom the perpetrator is in a position of trust And in respect of whom the perpetrator is in a position of trust Position of trust if any of the 5 conditions set out in the Act are fulfilled Position of trust if any of the 5 conditions set out in the Act are fulfilled