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Justice Committee 01 March 2016

01 Mar 2016 · S4 · Justice Committee

Item of business

Abusive Behaviour and Sexual Harm (Scotland) Bill: Stage 2

Matheson, Michael SNP Falkirk West Watch on SPTV

Amendments 70 and 72 to 82 would expand the scope of the intimate images offence at section 2 to cover intimate sound recordings and written communications. As I set out in the Scottish Government’s response to the committee’s stage 1 report, we took a decision to restrict the offence to the sharing of intimate images because almost all the cases that we are aware of have involved the sharing of images. Unfortunately, we are all too aware that there are far too many websites set up specifically to enable people to post intimate photographs or films of their partners or ex-partners. I am not aware of similar websites on which people post voice messages or emails written by or to their partner or ex-partner. The sharing of images that may enable a complete stranger to identify the victim is, in our view, a betrayal of trust and a breach of privacy, which is especially likely to cause distress. That is, of course, part of the justification for the new offence. It is worth remembering that it will remain possible for prosecutors to use existing laws in relation to the sharing of written or recorded material—in appropriate cases—by using, for example, the Communications Act 2003 offence, or the offence of threatening or abusive behaviour. The committee’s stage 1 report noted that a majority of the committee support restricting the scope of the offence to photographs and films, and that the committee is mindful of the risk of unintended consequences if the bill takes too wide an approach in this area. On the question of unintended consequences, I note that these amendments apply not only to intimate recordings—written or spoken by the victim—but also those directed to or left for the victim. A perverse effect of that is that a person could face criminal liability for publishing or disclosing a communication that they themselves had written, or a voicemail message that they had left. More generally, although it is hard to envisage circumstances in which someone would have legitimate reason to share intimate photographs or films of their partner or ex-partner with a third party without their consent, it is easier to imagine circumstances in which they might wish to share a written message or voice message with a friend. They may, for example, be confused or even fearful because of what they might consider to be disturbing sexual content in a message sent to them. They may wish to seek advice about what to do about that and, if these amendments are agreed to, they could be criminally liable in those circumstances. It may be helpful if I give the committee an example of how that could apply in our understanding of Margaret McDougall’s amendments—how they could criminalise behaviour in the following circumstances. 11:30 Two 13-year-olds exchange messages about a celebrity. During the exchange, one of the teenagers indicates that they fancy the celebrity and would like to have sexual relations with them. The other teenager decides to share that text with other people in their class at school. In that situation, a communication has taken place that a reasonable person would consider to be sexual in nature and a reasonable person would expect to be kept private. The person who shared the text has committed a criminal offence if it can be shown that they were reckless about whether sharing the message would cause the other person fear, alarm or distress. However, although it would probably be embarrassing and distressing for the person whose message has been shared, our view is that the person who has shared the message should not be committing an offence. It is our understanding that Margaret McDougall’s amendments would criminalise such behaviour. As we said in our response to the committee’s stage 1 report, we are happy to monitor the issue as the offence is implemented to assess whether we need to reconsider the scope of the offence in the future. However, we consider that the scope of the offence that is contained in the bill takes the right approach and therefore ask members not to support amendments 70 and 72 to 85.

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Justice Committee 01 March 2016

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