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Domestic Abuse (Scotland) Act 2018

Section 1 – Abusive behaviour towards partner or ex-partner

8.Section 1 makes it an offence for a person to engage in a course of behaviour which is abusive of the person’s partner or ex-partner.

9.Section 1(1) provides that a person commits an offence if the person engages in a course of behaviour which is abusive of the partner or ex-partner of that person and the two further conditions in section 1(2) are met.

10.A description of what constitutes abusive behaviour is contained in section 2. A definition of “partner”, and “ex-partner” is provided in section 11. Section 10(4) provides that a course of behaviour involves behaviour on at least two occasions, and the rest of section 10 gives a broad meaning to behaviour and how it may be effected.

11.The two further conditions in section 1(2) are as follows.

12.Section 1(2)(a) provides that, for the offence to be committed, a reasonable person must consider that the course of behaviour would be likely to cause the complainer to suffer physical or psychological harm.

13.The test that the court is being required to apply is whether the behaviour would be likely to cause the complainer to suffer harm. The test would be met where the course of behaviour was such that a reasonable person would consider the behaviour likely to cause harm to that particular individual, taking account of their particular characteristics, irrespective of whether the behaviour would in question would be likely to cause harm to a “reasonable person”. As such, the court is entitled to take account of any particular vulnerability of the complainer in considering whether the accused’s behaviour would be likely to cause them to suffer physical or psychological harm. But it is not a requirement for the offence to be committed that the prosecution show that the course of behaviour actually caused physical or psychological harm (see section 4).

14.Section 1(2)(b) sets out the mens rea for the offence. It provides that the accused must either intend that their course of behaviour causes the complainer to suffer physical or psychological harm, or else be reckless as to whether their course of behaviour would cause such physical or psychological harm. An example of how recklessness as to course of behaviour may occur is a person who is persistently verbally abusive and demeaning towards their partner and who may claim that they did not intend that their behaviour cause psychological harm to their partner. If the court is satisfied that their behaviour was such that the accused person was, at the very least, reckless as to whether their behaviour would cause such harm, then this condition would be met.

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