Ending conversion practices in Scotland - consultation analysis: SG response

Defence of reasonableness

75. The consultation proposed that, as a defence, the person accused of carrying out a conversion practice could show that their behaviour was reasonable in the particular circumstances. We also note that there was an error in this section of the consultation document which requires clarification.

76. While there was a small majority of all responses in favour of this defence (53%), the remaining respondents were fairly evenly split between those who did not support the defence and those who did not know.

77. Across the board, there was a consensus that objectively reasonable behaviour should not be criminalised. However, some respondents believed that the proposed defence was too narrow and asked for it to be strengthened in certain areas, for example parental rights. On the other hand, some respondents were concerned that the defence was too broad and would allow for loopholes. These respondents often asked for clearer boundaries or definitions, or stated that they did not think this defence should be included at all.

78. The Scottish Government recognises the concerns raised on both sides and we are considering the best way to provide more clarity, particularly with regard to the reasonable actions of parents.

79. We also recognise the difficulties in including a defence which invites the court to consider whether conduct which meets all the component parts of the conversion practice offence is reasonable. However, a reasonableness test is included in a number of other offences in Scots law which cover many different kinds of behaviour. The proposed defence would ensure that behaviour determined by the court to be objectively reasonable in the circumstances is not criminalised.

80. Given the potential breadth of conduct relevant to this legislation, we maintain that it important to include a defence of this nature and will continue to reflect on how such an element is defined.

Consultation correction

81. In addition, we note that on page 40 of the consultation, paragraph 119 included an error which caused confusion for some respondents around the phrase “reasonably objective”. Paragraph 119 reads: “This test is whether the accused’s behaviour was reasonably objective, meaning that it is not determinative that the accused person considers their behaviour was reasonable based on their own values”. This should have instead read as: “This test is whether the accused’s behaviour was objectively reasonable, meaning that it is not determinative that the accused person considers their behaviour was reasonable based on their own values”. We offer our apologies for any confusion this caused.