Meeting of the Parliament 28 January 2016
I welcome the bill. I will take each of its six main proposals in turn.
I support the introduction of a domestic abuse aggravator, which will allow the relevant offence to be placed in the context of domestic abuse and will ensure that that is taken into account in sentencing. Of course, that should not be a substitute for a new specific offence of domestic abuse. Neither the aggravator nor the new offence should be broadened out to include wider family members because the whole bill must be seen within the wider context of the Government’s work on violence against women, as the cabinet secretary reminded us.
We were expecting a specific offence of domestic abuse in the bill to capture coercive and controlling behaviour. However, I accept the reasons that were given for further consultation on that. We look forward to legislation on that in the next session.
There could be an addition to section 1(2)(a) to make it clear that the offence occurs regardless of whether it is committed directly against the partner or ex-partner—it is the physical or psychological harm that matters. Perhaps that aspect needs to be made absolutely explicit through amendment at stage 2.
Moving on to the second new element in the bill, I support the new offence of non-consensual sharing of intimate images. As various witnesses pointed out, we may need a clearer definition of consent, perhaps one that is based on the concept of free agreement as outlined in the Sexual Offences (Scotland) Act 2009. I believe that the offence should be extended, because, as Police Scotland reminded us,
“the impact of the written word and sound files of an intimate nature cannot be understated”.
An extension should certainly be seriously considered.
It is right that the offence should cover children and young people, and I support Scottish Women’s Aid’s proposal that the Government should run a campaign of education and information for children and young people on the criminal legal effect of the new offence and its impact on victims.
Moving on to non-harassment orders, I disagree with the committee on that aspect. A loophole in the law was highlighted a year ago by a prominent figure, and I picked that up in questions and debates in Parliament last year. It is not reasonable to expect the victim to instigate a civil non-harassment order in the circumstances that the legislation deals with. Those who say that an order will not have a practical effect should consider the very real practical effect that it will have in making it easier for the police to intervene quickly to protect a victim of harassment. That is precisely the issue that arose last year in a well-publicised situation that was highlighted in The Herald.
Moving on to jury directions, the provisions will ensure that jurors’ decision making is not marred by erroneous preconceptions. It is clear that there are problems with jurors’ views on delays in reporting and the lack of physical resistance in cases of sexual violence, and those two issues are dealt with explicitly in sections of the bill. Other issues are dealt with too, but it is good that those specific points are spelled out in the bill.
Research by Professor Louise Ellison of the University of Leeds and Professor Vanessa Munro of the University of Leicester found that the introduction of judicial directions of the nature of those that are outlined in the bill would be likely to increase the prospects for justice. Given how difficult it has proved to be to secure convictions for rape, in particular, and other sexual crimes, we must do everything that we can to make that more possible.