New Crimes Against the Person

Traditional criminal law often addresses discrete acts of violence and disorder but frequently overlooks sustained harm experienced by victims over time. This limitation raises concerns about the adequacy of legal definitions in capturing nuanced issues such as intimate terrorism associated with domestic abuse and stalking. Moreover, the prevalence of gender disparities in the experiences of such abuse leads to important questions regarding how well the legal system reflects these realities and serves victims effectively.

Scenario Analysis: Domestic Abuse

Case Study: Murray and Angela’s Relationship

• Publicly, Murray presents himself as a loving partner, but privately he exerts control through abusive behaviors.

• Angela feels devalued and humiliated due to Murray’s manipulation.

• Financial Control: Murray manages Angela’s income, limiting her financial freedom by providing her with a restricted budget that undermines her independence.

• Covert Behaviors: Examples of Murray's manipulation include canceling Angela's college enrollment without her knowledge and continuously monitoring her communications and whereabouts through various means.

• Legal Consideration: While some actions may appear threatening or abusive, they often do not align with current criminal definitions, as seen in the ruling of Smart v HM Advocate, making legal recourse challenging for victims.

Understanding Domestic Abuse

Definition by Scottish Government (2000):

• Domestic abuse encompasses a variety of abusive behaviors, including physical, sexual, mental, and emotional abuse.

• Examples:

  • Controlling behaviors aimed at subduing the victim.

  • Verbal abuse that belittles the victim.

  • Isolation from friends and family to increase dependency on the abuser.

  • Financial manipulation to exert control.

Statistics on Domestic Abuse

• Recorded Incidents: There were 70,000 recorded incidents of domestic abuse in 2007-08. This number has fluctuated, decreasing to around 30,000 in subsequent years, as reported up to 2016-17.

• Victim Gender Ratio: The statistics reveal that a significant majority of the victims are female, with males primarily occupying the role of perpetrators, underscoring the gendered nature of domestic abuse.

Legislative Response: Domestic Abuse (Scotland) Act 2018

• The 2018 Act introduced new offenses specifically addressing abusive behavior towards both current and former partners.

• This legislative response effectively acknowledges and recognizes various forms of abuse, including emotional, financial, sexual, and psychological abuse.

• Key Provisions:

  • s.1 creates an offense for a course of abusive behavior, which must consist of more than one relevant action.

  • Definition of Partners includes spouses, cohabitants, and individuals involved in intimate relationships, broadening the scope of who is protected under the Act.

What Constitutes Abusive Behaviour?

• Defined under sections 2 of the Act,

  • Includes not just violent but also threatening and intimidating actions.

  • Non-violent actions can qualify as abusive if they are intended to control or subordinate the victim psychologically.

  • Mens Rea: Requires that the perpetrator has the intent to cause either physical or psychological harm to the victim.

Effects of Behaviour under the Act

• The behavior in question must be likely to cause harm to the complainant, as perceived by a reasonable person, which includes:

  • Psychological effects such as fear, anxiety, and distress.

  • Courts may account for individual characteristics of the victims in assessing harm, recognizing that impacts can vary greatly among individuals.

Stalking as a Criminal Offense

• Definition: Stalking involves continuous and unwanted behavior that instills fear or alarm in the victim, as delineated in s.39 of the Criminal Justice & Licensing (Scotland) Act 2010.

• To secure prosecution, engaging in a course of conduct that is identified as stalking is essential.

• Defenses Available: Possible defenses include lawful conduct or actions taken under the reasonable belief of preventing a crime.

Image-Based Sexual Abuse

• Often referred to as "revenge porn", this term may not encapsulate the full experiences and victimization encountered by individuals.

• The impact of such actions includes severe psychological ramifications and significant social isolation for victims, highlighting the need for comprehensive legal protections.

Legal Approach to Image-Based Abuse

• Relevant Legislation: Section 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 explicitly addresses the non-consensual sharing of intimate images without the subject's consent.

• It stipulates that disclosing intimate images with the intent to cause distress constitutes an offense, thereby protecting individuals from such invasions of privacy.

• Intimate Situation Definition: Includes engaging in private sexual acts or capturing images that reveal intimate body parts not typically seen in public.

• Defenses: Consent or a reasonable belief that consent was provided can mitigate liability under the law.

Summary of Core Concepts

The discourse surrounding domestic abuse and stalking involves recognizing both physical and psychological dimensions of harm. Recent legislative reforms illustrate a growing acknowledgment of the complexities of abuse beyond mere physical violence, underscoring the imperative for a nuanced legal approach that encompasses all forms of intimate terrorizing behavior. In assessing harm and abuse, it is crucial to consider both the subjective experiences of the victims and the objective standards of reasonableness in legal interpretations and applications of justice.