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

Statutory aggravation – offences committed against pregnant women

The issue

This section seeks views on whether the law should provide stronger recognition of the risks posed by domestic abuse during pregnancy. It explains why the Scottish Government is considering a statutory aggravation in this area; outlines how such an aggravation could operate; and invites feedback on the proposed approach.

The harm caused to women and girls

Pregnancy can be a time of increased vulnerability, and there is evidence that domestic abuse can become more frequent or severe during this period. Ensuring the law effectively acknowledges this increased risk of harm is important. Our aim is to ensure that the law properly recognises this heightened risk and the impact such behaviour can have on both the woman and her unborn child.

This proposal would not create a new criminal offence. Instead, it would require the courts to treat pregnancy as a formal aggravating factor when sentencing certain domestic abuse offences. This helps ensure that the additional harm and risk during pregnancy is acknowledged in every case.

The context of the issue being raised

In 2021, a petition was submitted to the Scottish Parliament calling for a new offence where domestic abuse causes miscarriage. This reflected the petitioner’s own experience and led to a full debate in Parliament in May 2024 where MSPs debated the issue.

In debating this petition, members of the Scottish Parliament from across parties highlighted the devastating impact of losing a pregnancy as a result of domestic abuse. MSPs noted evidence that pregnancy can be a time of heightened risk, with domestic abuse sometimes beginning or intensifying during pregnancy, and expressed concern that current practice may not always reflect the seriousness of abuse that results in pregnancy loss. The Scottish Government highlighted existing offences including the Domestic Abuse (Scotland) Act 2018 and common law assault, which can attract significant sentences.

However, Ministers and MSPs acknowledged that further work is needed and indicated openness to exploring options, such as a specific statutory aggravation, clearer sentencing guidance and wider improvements in how the justice system responds to victims in these cases, including through the Scottish Sentencing Council and domestic abuse justice partners.

The current law

Criminal conduct that leads to harm for pregnant women can be recognised under existing law.

However, the concept of a statutory aggravation is a mechanism that allows the law to recognise that an offence is more serious when it is committed in particular circumstances. An aggravation does not change the underlying offence, but it requires the court to treat the offence as more serious when sentencing.

In common law offences, the seriousness of the conduct is reflected in the charge and in the sentence, even if the precise circumstances are unusual or particularly harmful. This flexibility means that very serious behaviour — including conduct that causes severe injury, danger to life, or, in some cases, pregnancy loss — can already be prosecuted using existing common law offences of assault, with sentences that reflect the full gravity of what happened. This includes sentencing up to life imprisonment.

However, because common law offences do not specify particular circumstances (such as harm to a pregnant woman) in the legal definition, these features must be set out by the prosecution and recognised by the court during sentencing. This is one reason why some people have argued that a statutory aggravation could help ensure such harms are consistently recorded and given appropriate weight.

Key considerations

Aggravations must be proved by the prosecution, and when an aggravation is established the court must take it into account during sentencing. Aggravations also ensure that information is formally recorded, improving understanding of how and why certain types of offending occur and help to shape policy and prevention work.

An aggravation does not define new criminal conduct. Instead, it highlights a specific feature of the offending — for example, that the behaviour targeted a particular person or group, or occurred in circumstances that justify considering treating the offence as more serious.

We believe a statutory aggravation is the most effective approach in responding to the harm caused by offending behaviour against pregnant women. This is because it:

• recognises the seriousness of domestic abuse during pregnancy, whether or not a miscarriage occurs
• focuses on the heightened risk and harm during pregnancy, rather than a specific medical outcome that may not always be possible to determine, creating barriers to justice
• avoids placing additional demands on victims to provide highly personal medical detail
• requires courts to explain openly how pregnancy was considered when sentencing, increasing transparency for victims
• allows better data collection to understand the scale of domestic abuse during pregnancy and support future policymaking

We propose that the aggravation would apply where the victim was pregnant at the time of the offence. Where the offence involves a longer pattern of abusive behaviour, the aggravation would still apply where the victim was pregnant for only a part of the time over which the offence was committed.

We also propose it would be a requirement that the offence in question was one that amounted to domestic abuse. This would either be:

• an offence of abusive behaviour towards a partner or ex-partner under section 1(1) of the Domestic Abuse (Scotland) Act 2018

or

• any other criminal offence where the court is satisfied that the perpetrator - in committing the offence - either intended to cause their partner or ex-partner to suffer physical or psychological harm, or, in the case of an offence committed against their partner or ex-partner, were reckless as to whether it would cause their partner to suffer physical or psychological harm (this is the test that is currently used to determine whether any offence is aggravated by amounting to abuse of an offender’s partner or ex-partner)

The consequence of the aggravation being proven is that the court would then be required to:

• state that the offence is aggravated by pregnancy
• record this on the conviction
• take it into account when deciding the sentence
• explain whether (and how) the sentence is different because of the
• aggravation

This approach reflects how other aggravations in Scots law operate, such as those relating to domestic abuse or offences against children.

Scope of the aggravation – pregnancy, not miscarriage

We propose that the aggravation should apply whenever the victim is pregnant, whether or not she experiences a miscarriage. This wider scope is important because:

• domestic abuse during pregnancy creates heightened risk and harm in all cases, not only those with a particular medical outcome
• limiting the law only to cases where miscarriage occurs could lead to inconsistent treatment of victims based on factors that may be impossible to determine with certainty
• the causes of miscarriage are often complex, and focusing legislation on this outcome could unintentionally create barriers for those seeking justice
• research shows that domestic abuse can harm unborn children in many ways, including increased risk of premature birth or low birth weight

Courts would still be able to reflect specific harm – including miscarriage – when deciding sentence. The aggravation simply ensures that pregnancy itself is recognised as a factor of particular concern.

Operation of the aggravation – knowledge of pregnancy

We propose that the aggravation would operate on a strict liability basis. This means it would apply based on the fact that the victim was pregnant, regardless of whether the perpetrator knew this. This avoids situations where the aggravation could not be used simply because pregnancy was not visible or the parties were no longer in close contact.

If, in a particular case, a perpetrator had no reason to know the victim was pregnant – for example, where the offence involved an ex-partner – the court would be able to take this into account when deciding how much the aggravation should influence the final sentence.

Why the aggravation focuses specifically on domestic abuse

The aggravation is limited to domestic abuse offences committed by a partner or ex-partner. This reflects evidence that:

• pregnancy can increase the likelihood of domestic abuse
• domestic abuse can escalate in severity during pregnancy
• psychological abuse is often a significant part of domestic abuse

Courts can already take pregnancy into account when sentencing for any criminal offence committed by strangers or acquaintances. The aim of the new aggravation is to recognise the distinct dynamics and risks present in domestic abuse cases during pregnancy.

Scottish Government view

Pregnancy is a time when many women may be more vulnerable to harm. Domestic abuse during pregnancy can have serious and lasting consequences for both the woman and her unborn child. By creating a statutory aggravation:

• the justice system will better recognise and label this type of serious harm
• victims will have clearer understanding of how pregnancy was considered in their case
• there will be increased transparency about sentencing decisions
• Scotland will have better data to support prevention, protection and early intervention

We propose introducing a new statutory aggravation that applies when a domestic abuse offence is committed against a pregnant woman by a partner or ex-partner.

When this aggravation is proven, the court must formally recognise and record that the offence was committed during pregnancy and take this into account when determining sentence.

This aims to deliver more effective justice, improve transparency, strengthen victims’ confidence in the justice process, and support better data on domestic abuse during pregnancy.

Question 8: Do you agree for a new aggravation in relation to offences committed against pregnant women by a partner or ex-partner?