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Abusive Behaviour and Sexual Harm (Scotland) Act 2016

Section 1 – Aggravation of offence where abuse of partner or ex-partner

8.Section 1 provides for a statutory aggravation that an offence is aggravated by constituting abuse of a partner or ex-partner where the person convicted of the offence either intended to cause, or else was reckless as to whether their actions would cause, physical or psychological harm to their partner or ex-partner.

9.Subsection (2)(a) provides that, where it is libelled that the accused acted with the intent of causing their partner to suffer physical or psychological harm the offence itself does not have to have been committed against the person’s partner or ex-partner. As such, the aggravation could be libelled where, for example, a person commits an assault against their ex-partner’s child with the intent of causing psychological harm to their ex-partner.

10.Subsection (2)(b) provides that, where the offence is committed against the person’s partner or ex-partner, the offence is aggravated where the convicted person is reckless as to causing the partner or ex-partner to suffer physical or psychological harm. As such, the aggravation applies where, for example, someone assaults their partner or damages their partner’s property, irrespective of whether it was their intent to cause such harm to that person.

11.Subsection (5) requires that, where the aggravation is proved, the court must take that aggravation into account when determining sentence. It must also explain how the aggravation has affected the sentence (if at all) and record the conviction in a manner which shows that the offence was aggravated by constituting abuse of a partner or ex-partner.

12.Subsection (6) provides that, for the purpose of the aggravation, “partner” means a person’s spouse or civil partner (or cohabiting equivalent), or a person in an intimate personal relationship with the applicant. Former relationships of the specified types are covered in addition to current relationships. The phrase “intimate personal relationship” is intended to cover relationships between boyfriends and girlfriends (including same-sex relationships), although the relationship need not be sexual. Other family relationships and other types of relationship (e.g. between friends or business partners or work colleagues) are not covered by the aggravation.

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