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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

McDougall, Margaret Lab West Scotland Watch on SPTV

The aim of these amendments is to expand the disclosure section in the bill. The bill only covers the disclosure of photographs and film. The amendments, which are supported by Scottish Women’s Aid, seek to broaden that to include a photograph or film of an intimate situation, sound recordings containing intimate content or an intimate written communication, which is the purpose of amendment 73. If we cover disclosure only of photograph or film, there will be a loophole in the bill. When it comes to sharing, for example, screenshots of intimate text-based conversations or the sharing of intimate content in the form of texts or sound on the internet or social media, as Scottish Women’s Aid stated, by specifying photographs and films the bill excludes the sharing of private and intimate written and audio communications. The exposure of the threat of sharing those has the same outcome—it is designed to humiliate and control the victim. Sometimes, text and images are sent at the same time. Will we criminalise the image but not the abusive and threatening text? For example, the sharing of an intimate image on Facebook without consent would be a prosecutable offence under the bill. However, if someone were to share an intimate conversation or a screenshot of an intimate conversation, that would not be covered. I would argue that the sharing of that type of content could have the same effect as sharing intimate images without consent; it could cause just as much fear, alarm or distress to the victim and arguably would be designed to do so. Amendment 70 is a technical amendment that updates the bill to reflect the expansion of the definition. In effect, amendment 70 removes the text “A discloses or threatens to disclose, a photograph or film which shows, or appears to show, another person (‘B’) in an intimate situation” and replaces it with a reference to “an item”, which is defined in the subsection that amendment 73 introduces, “that involves another person ... in a way mentioned in that subsection”. Amendment 72 and amendments 74 to 79 are all technical amendments that replace references to “photograph or film” throughout the bill to “item”. What we mean by “item” is defined in amendment 73. Amendment 80 is a further technical amendment that adds a reference to the new section 2(1A)(a) that was created by amendment 73. Amendment 81 is again a technical amendment adding further reference to the new subsection that is created by amendment 73. Finally, amendment 82 clarifies what we mean by “intimate” conversations, messages or communications. They need to include references to an act that is considered sexual or content that, taken as a whole, is considered to be of a sexual nature. Further to that, the content must not have been expected to be distributed or there was an understanding that it would be kept private. These amendments are supported by Scottish Women’s Aid and Victim Support Scotland. Police Scotland also gave evidence to the committee in support of including written and audio communication of this type in the bill. It said that the offence should take “cognisance of all forms of communication and distribution.” Although I understand that the sending of abusive messages is a criminal offence, the same does not always apply to the sharing of intimate material. These amendments ensure that the sharing of any intimate material without permission is covered under one bill. That cuts down on repetition and leads to a more streamlined and easier system. It also means that all offences are dealt with in the same manner. The current offence under section 127 of the Communications Act 2003 is not an appropriate offence for dealing with this behaviour as, first, it sets a very high threshold of the content of the message or other matter being “grossly offensive or of an indecent, obscene or menacing character”. Unlike the proposed offence in the Abusive Behaviour and Sexual Harm (Scotland) Bill, the offence under section 127 of the 2003 act can be tried only under summary procedure, not solemn procedure. That limits the overall custodial and financial penalties. The proposals allow for offences under this section to be tried under either summary or solemn procedure. Further, the maximum term of imprisonment under the summary procedure in section 127 is limited to six months, as opposed to the 12 months in the bill, meaning that women or men who are abused by having private written and audio communications shared without their consent would have a lesser protection, and perpetrators may well tailor their behaviour to accommodate that gap in the law. With advances in technology making it easier to distribute information with or without consent, it is vital that the law keeps up to ensure that those who wish to cause harm are dealt with appropriately and consistently by the justice system. I ask the committee and the cabinet secretary to support my amendments. I move amendment 70.

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Justice Committee 01 March 2016

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