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Domestic Abuse (Scotland) Act 2018

Section 2 – What constitutes abusive behaviour

15.Section 2 provides a description of what constitutes abusive behaviour. The description is non-exhaustive and it therefore remains open to the court to decide in any individual case that the accused’s behaviour was abusive in some other way.

16.Section 2(2) provides that behaviour which is abusive of a person’s partner or ex-partner (B) includes behaviour directed at B which is violent, threatening or intimidating (for example, assault or threats). It also covers behaviour directed at B or at any other person (in particular, a child of B) which has as its purpose, or among its purposes, or would be considered by a reasonable person likely to have, one or more of the effects on B that are listed in section 2(3).

17.Section 2(3) provides a list of effects on the victim that are relevant in order to indicate behaviour is abusive in connection with the offence. This is intended to ensure that, for example, psychological abuse or coercive and controlling behaviour that could not currently be prosecuted under existing offences falls within the definition of abusive behaviour. There is inevitably some overlap because some abusive behaviour may have several of the listed effects on the victim or may be capable of prosecution under existing offences (for example, threatening or abusive behaviour, assault).

18.Section 2(3)(a) provides that behaviour which makes the victim dependent on or subordinate to the perpetrator can be considered to have a relevant effect. This could include, for example, preventing the victim from having access to money, forcing the victim to leave their job, taking charge of household decision-making to the exclusion of the victim or treating the victim as a domestic slave.

19.Section 2(3)(b) provides that behaviour which has the effect of isolating the victim from friends, relatives or other sources of support can be considered to have a relevant effect. This could include, for example, controlling the victim’s movements or access to their phone or other forms of communication, not allowing visits from or to the victim’s friends or family, or deliberately failing to pass on messages from friends or family.

20.Section 2(3)(c) provides that behaviour which has the effect of controlling, regulating or monitoring the victim’s day-to-day activities can be considered to have a relevant effect. This could include, for example, checking the victim’s phone, e-mail or social media use, controlling what clothes the victim can or cannot wear, or placing unreasonable requirements on the victim to, for example, prepare meals in a particular way at a particular time every day.

21.Section 2(3)(d) provides that behaviour which has the effect of depriving the victim of, or restricting the victim’s freedom of action is behaviour which can be considered to have a relevant effect. This addresses behaviour which robs victims of their autonomy, for example, preventing the victim from attending work or college, preventing the victim from leaving the house alone, insisting on accompanying the victim to medical appointments, or taking decisions for the victim in relation to private, individual matters that a person would normally decide for themselves.

22.Section 2(3)(e) provides that behaviour which has the effect of frightening, humiliating, degrading or punishing the victim is behaviour which has a relevant effect. This could include, for example, abusive name-calling, threats of self-harm, playing mind games with the victim that cause them to doubt their sanity, controlling the victim’s access to the toilet or forcing the victim to eat food off the floor.

23.Section 2(4) provides that references to violent behaviour include sexual violence as well as other physical violence. It should be noted that non-violent sexually abusive behaviour may be considered abusive under section 2(2)(b) and (3) where it is behaviour that is intended, or likely to have, one of the effects on the victim; for example, behaviour which has the effect of frightening, humiliating, degrading or punishing the victim. Non-violent sexually abusive behaviour may also be considered threatening or intimidating in terms of section 2(2)(a).

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Text created by the Scottish Executive department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills

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