Proposed legislation in Scotland has hit the headlines this week, with a new Act set to come into force which criminalises “psychological abuse and controlling behaviour” within family relationships.
The proposed change in the law has sparked debate, with many backing it as a huge leap forward in enabling the criminal prosecution of perpetrators of emotional abuse. Others question whether the new law will have the desired result and have raised concerns that there might be difficulties in gathering sufficient evidence for a successful prosecution.
There is no doubt that the proposed changes to the law are well-intentioned and have a very commendable objective. From a practical point of view, however, one can foresee potential difficulties in deciding what constitutes criminal behaviour for the purposes of the new legislation. The Act will label behaviour as abusive if it would be identified as such by a “reasonable” person. It includes in its definition behaviour that makes one partner subordinate to the other, behaviour that isolates them from others, deprives them of freedom, humiliates or restricts their freedom.
There are of course a huge diversity of relationships in society which have different kinds of interdependency from an emotional, psychological and financial point of view. There is an inevitable degree of subjectivity in assessing such relationships, and behaviour that one person might consider to come within the definition of abuse would not necessarily be considered so by another. Clearly such comments do not apply to the cases at the extreme end of the spectrum which any reasonable person would consider to come within the definition of abuse. However, the possibility of spurious allegations will require to be carefully considered.
Only time will tell whether the new legislation is really the “gold standard” for the law on domestic abuse or instead whether it is a minefield of uncertainty for both the public and the courts.