Improving protections in the justice system for women and girls: consultation

About this consultation

Violence against women and girls, in any form, has no place in our vision for a safe, strong, successful Scotland. That is why the Scottish Government remains committed to ensuring the necessary steps are taken and, where needed, new tools are made available to address violence against women and girls.

Equally Safe, our country’s strategy for preventing and eradicating violence against women and girls, was refreshed in 2023. The aim of the strategy is to foster collaborative working between key partners to achieve this vision. The strategy recognises that a collaborative approach is vital; violence against women and girls is everyone’s concern, and all sectors of society have a role to play in tackling it.

As a result, the Equally Safe delivery plan reflects a commitment to act from partners across the public and third sectors at a local and national level. Through these deliverables all partners commit to maintaining our momentum in addressing violence against women and girls, and realising our ambitions under the strategy.

The Equally Safe strategy focuses on violence and abusive behaviour carried out predominately by men and directed at women and girls because of their gender. Equally Safe places emphasis on challenging gender inequality and norms and the underpinning attitudes that perpetuate and condone such violence. Under the auspices of Equally Safe, we have strengthened the law in relation to violence against women and girls and we have taken forward a great deal of work to ensure those working in the public sector are equipped with the resource and knowledge to confidently and sensitively work with those affected by violence against women and girls.

That is why it is important to also consider the legislative framework and how able that is to adapt and respond to the changing nature of violence against women and girls, most particularly from an online harm perspective.

This consultation focuses on the potential role that changes to the criminal law can play in preventing and addressing violence against women and girls. Delivering better outcomes for women and girls is key. Criminal law can have a fundamental role to play in helping deliver better outcomes where, for example, recognised gaps in protection exist that require new laws to be developed. However, the criminal law is a relatively blunt instrument. It is important that it can be applied transparently and fairly and can be operationalised so that it increases protection for women and girls and allows for perpetrators to be held to account.

Within this context, this consultation offers information about the operation of existing laws in helping to protect women and girls, with views sought on what steps could be taken to improve how protection is delivered. In some areas we invite views on specific proposals for criminal law reform that would create new necessary protections for women and girls. In other areas, we explain how current laws operate and what other action may be considered.

The responses to this consultation will help inform consideration of future criminal law and other steps to improve the outcome we all seek; namely improved protection for women and girls leading to reduced levels of violence against women and girls.

For the purposes of this consultation, it is helpful to be aware that Scotland has a mixture of statutory offences (set out in legislation) and common law offences that have developed over time through court decisions. Many serious crimes — including assault — exist at common law rather than in statute.

For common law offences such as assault, the courts have very wide sentencing powers. Unlike statutory offences, which have fixed maximum penalties written into legislation, common law offences do not have a maximum sentence set in law. Instead, the available sentence depends on the powers of the court hearing the case. In particular:

• High Court - can impose any lawful sentence up to life imprisonment and/or an unlimited fine for a common law offence
• Sheriff Court solemn procedure (i.e. with a jury) - can impose up to 5 years’ imprisonment and/or an unlimited fine; if a higher sentence is justified, the sheriff may send the case to the High Court for sentencing
• Sheriff Court summary procedure (i.e. no jury) - can generally impose up to 12 months’ imprisonment and/or a fine up to £10,000

Background

The consultation includes discussion in the following sections:

• non-fatal strangulation
• spiking
• statutory aggravation – offences committed against pregnant women
• prosecutorial powers to impose non-harassment orders
• online and technology related harm -
  • intimate images offences
  • general criminal law online and technology-facilitated harm
  • further steps that could be considered

For each section, the consultation paper sets out:

• the issue
• the harm caused to women and girls
• the context of the issue being raised
• the current law
• key considerations
• Scottish Government view
• questions