In a previous article we discussed the ground-breaking domestic abuse legislation that came into force in Scotland in 2019. The law introduced last year recognises domestic abuse crime. If it can be proven that a person has engaged in abusive behaviour towards a current or former partner, they can be prosecuted and charged with the offence.

Domestic violence is a priority for Police Scotland and for the Crown Office Procurator Fiscal Service (COPFS), so it is essential that if you are concerned about domestic abuse charges, you seek legal advice right away.

In this article, we look at the new laws and some of the most common questions about the new regime covering how police, COPFS and the courts investigate and prosecute domestic abuse in Scotland.

What is the law on domestic abuse in Scotland?

A crucial element of the law is that it covers a broad range of behaviours that constitute domestic abuse. Previously, the law covered predominantly physical violence against a partner. However, the law now extends to include psychological and emotional abuse, including coercive control.

What type of conduct could amount to domestic abuse?

Domestic abuse exists in all sections of our communities. Domestic abuse can exist in all types of relationships between partners and ex-partners. Abusers and victims can be male or female, any race or religion and from all different kinds of background. The new law, instead of focussing on the actions actually carried out, takes into account the effect the actions may have had on the victim of the abuse. 

Police Scotland and COPFS agreed definition of domestic abuse is:

"Any form of physical, verbal, sexual, psychological or financial abuse which might amount to criminal conduct and which takes place within the context of a relationship.

"The relationship will be between partners (married, cohabiting, civil partnership or otherwise) or ex-partners. The abuse can be committed in the home or elsewhere, including online."

Domestic abuse can take place in all types of relationships between partners and ex-partners, and victims may be of any gender, race or religion.

Physical abuse covers all types of physical attack or assault such as hitting, hitting with objects, kicking, punching and burning.

Sexual abuse is forcing a partner or ex-partner to take part in sexual acts they do not wish to, including forcing them to have sexual intercourse.

Emotional or mental abuse is more difficult to define. However, it may include making threats including threats of violence, persistent criticism or name-calling, threatening children or pets, damaging a partners possessions, controlling where a partner goes or whether they can contact people, isolating a partner from their friends and family, accusing a partner of being unfaithful as a means of controlling them, threatening to 'out' a partner's HIV/Aids status, sexual orientation or other information they wish to be kept private, denying a partner access to their bank card or money,

What is needed to prove domestic abuse?

To prove there was domestic abuse, the law will require to demonstrate that:

• The abusive behaviour was directed towards a current partner or ex-partner
• The behaviour formed a pattern, meaning that there must be two or more incidences of abusive behaviour. The incidents cited must be of such a nature that the reasonable person would believe that the victim would have suffered psychological or physical harm. This harm could be fear, alarm or distress.

As discussed above, the abuse does not need to be physical or sexual.

The alleged perpetrator of the abuse must have intended to cause psychological or physical harm, or they may have been reckless as to whether their behaviour would cause such harm. Crucially, this means that even where a person does not intend to cause damage to their partner or ex-partner, the behaviour may still be considered to be domestic abuse.

There is no need to prove that the abusive behaviour actually caused harm.

Who does the law of domestic abuse apply to?

The law applies to any partner or ex-partner, regardless of whether they are living together. This can be a wife, husband, civil partner, boyfriend, girlfriend or another partner in an intimate relationship.

Incidents of domestic abuse overseas

The law can cover incidents that happened while overseas. In this situation, if a victim reports an incident of domestic abuse that took place abroad, it can be investigated and prosecuted in Scotland. The only condition for such a prosecution to take place is that the victim must be a British citizen, or that Scotland must be their usual place of residence.

Does it make a difference if there are children involved?

The law recognises the impact domestic abuse can have on children. A child is defined as anyone under the age of 18.

When a child is affected by abusive behaviour, the offence is automatically considered to be more serious. This is the case even where the abuse was not directed towards the child. If it is proven that a child has been impacted by domestic abuse, this could result in a longer sentence, and so it is essential to seek advice as soon as possible.

Contact our Domestic Abuse Solicitors Kirkcaldy, Alloa, Dunfermline & Edinburgh

If you have been accused of domestic abuse, you must take action right away. Our highly experienced domestic abuse lawyers can help you and will discuss your options with you in strictest confidence. We offer a fully comprehensive legal service from meeting with you in custody, through to representing you in the sheriff court and the high court, and at the appeal stage.

We also have an exceptional team of solicitor advocates who can represent you in the high court. Our lawyers defend clients in Alloa, Dunfermline, Edinburgh, Glenrothes, Kirkcaldy, Methil, Perth, Stirling and throughout Scotland. MJS Defence is recognised as one of Scotland's leading criminal defence teams, and we will always work hard to secure the best possible outcome for your circumstances. Call our criminal defence solicitors for a free, initial consultation in Dunfermline on 01383 730 466, in Kirkcaldy on 01592 640 680, in Alloa on 01259 725 922 or make an online enquiry.