Many guides to abuse in relationships describe the law in England and Wales. Scotland has its own statute. The Domestic Abuse (Scotland) Act 2018, an Act of the Scottish Parliament, created a specific offence of abusive behaviour towards a partner or ex-partner. It came into force on 1 April 2019. This guide summarises the sections of the Act as published on legislation.gov.uk, and it applies to Scotland only. It explains the wording; it is general information, not legal advice. Anyone in immediate danger should call 999.
The offence in section 1
Section 1 says a person commits an offence if they engage in a course of behaviour which is abusive of their partner or ex-partner and two further conditions are met:
- a reasonable person would consider the behaviour likely to cause the partner or ex-partner to suffer physical or psychological harm; and
- either the person intends the behaviour to cause that harm, or is reckless as to whether it does.
The section states that psychological harm includes fear, alarm and distress. Section 10 adds that a “course of behaviour” involves behaviour on at least two occasions.
Who counts as a partner
Section 11 says people are partners if they are spouses or civil partners of each other, if they are living together as if spouses, or if they are in “an intimate personal relationship with each other”. Whether someone is an ex-partner is decided in the same way. The wording does not require people to live together, so it is not limited to couples who share a home. Whether a particular relationship, including one that began on a dating app, meets the definition is a matter for a court on the facts.
What counts as abusive behaviour
Section 2 says abusive behaviour includes behaviour directed at the partner that is violent, threatening or intimidating, and behaviour directed at the partner, at a child of the partner or at another person that has (or is among the purposes of having), or would be considered by a reasonable person likely to have, one of these effects:
- making the partner dependent on, or subordinate to, the person;
- isolating the partner from friends, relatives or other sources of support;
- controlling, regulating or monitoring the partner’s day-to-day activities;
- depriving the partner of, or restricting, their freedom of action; or
- frightening, humiliating, degrading or punishing the partner.
The section says violent behaviour includes sexual violence as well as physical violence. The list of effects overlaps with what other guides on this site describe as coercive control, and monitoring is central to the guide on tech abuse.
Words, messages and omissions count
Section 10 says behaviour is behaviour of any kind. It includes saying or otherwise communicating something as well as doing something, and intentionally failing to do or say something. It also says behaviour directed at a person includes behaviour carried out by way of conduct towards property, through making use of a third party, or in a personal or direct manner. The Act does not name dating apps or messaging services.
Harm does not have to be proved
Section 4 says the offence does not depend on the behaviour actually causing the partner to suffer harm, and the effects listed in section 2 do not have to be shown to have actually happened. The section adds that evidence can still be led about harm or effects that did occur. The test in section 1 is therefore about what a reasonable person would consider likely and what the person intended or was reckless about.
Children
Section 5 provides for an aggravation where a child is involved. The offence is aggravated if the person directs behaviour at a child, uses a child in directing behaviour at the partner, or a child sees, hears or is present during an incident, or if a reasonable person would consider the behaviour likely to adversely affect a child usually living with either of them. A child means someone under 18 who is neither of the two people. The section says there does not need to be evidence that the child was aware of, understood or was adversely affected by the behaviour, and that evidence from a single source is sufficient to prove the aggravation. The guide to dating someone who has contact with your children covers the disclosure scheme in Scotland.
Defence, penalties and jurisdiction
Section 6 gives the accused a defence that the course of behaviour was reasonable in the particular circumstances, and says it is treated as shown if the evidence raises the issue and the prosecution does not prove beyond reasonable doubt that the behaviour was not reasonable. Section 8 allows a conviction for an alternative offence, threatening or abusive behaviour or stalking under the Criminal Justice and Licensing (Scotland) Act 2010, if the facts amount to that instead. The guide to stalking law and support covers the stalking offence.
Section 9 sets the penalty. On summary conviction it is imprisonment for up to 12 months or a fine not exceeding the statutory maximum, or both. On conviction on indictment it is imprisonment for up to 14 years or a fine, or both.
Section 3 gives the offence extra-territorial reach. A course of behaviour can be the offence even if it occurs wholly or partly outside the United Kingdom, and where it occurs wholly outside the UK the person can be prosecuted in a sheriff court district if they were habitually resident in Scotland or were a UK national at the time. That matters for relationships conducted across borders; the guide to long-distance relationships covers the practical side.
The bottom line
The Domestic Abuse (Scotland) Act 2018 makes a course of abusive behaviour towards a partner or ex-partner an offence in Scotland, with partner defined to include people in an intimate personal relationship, so living together is not required. Abuse includes controlling, isolating and monitoring behaviour as well as violence, communication counts as behaviour, and proof of actual harm is not needed. The maximum penalty is 14 years’ imprisonment on indictment. Anyone in immediate danger should call 999, and the helplines guide lists the Scottish helpline.
Sources
- Domestic Abuse (Scotland) Act 2018, section 1, “Abusive behaviour towards partner or ex-partner”
- Domestic Abuse (Scotland) Act 2018, section 2, “What constitutes abusive behaviour”
- Domestic Abuse (Scotland) Act 2018, section 3, “Extra-territorial jurisdiction”
- Domestic Abuse (Scotland) Act 2018, section 4, “Evidence of impact on victim”
- Domestic Abuse (Scotland) Act 2018, section 5, “Aggravation in relation to a child”
- Domestic Abuse (Scotland) Act 2018, section 6, “Defence on grounds of reasonableness”
- Domestic Abuse (Scotland) Act 2018, section 8, “Alternative available for conviction”
- Domestic Abuse (Scotland) Act 2018, section 9, “Penalty for offence under section 1(1)”
- Domestic Abuse (Scotland) Act 2018, section 10, “Meaning of references to behaviour”
- Domestic Abuse (Scotland) Act 2018, section 11, “Meaning of partner and ex-partner”