Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22)

(1) This subsection applies where it is— (a) libelled in an indictment or specified in a complaint that an offence is aggravated by involving abuse of the partner or ex-partner of the person committing it, and (b) proved that the offence is so aggravated. (2) An offence is aggravated as described in subsection (1)(a) if in committing the offence— (a) the person intends to cause the partner or ex-partner to suffer physical or psychological harm, or (b) in the case only of an offence committed against the partner or ex-partner, the person is reckless as to causing the partner or ex-partner to suffer physical or psychological harm. (3) It is immaterial for the purposes of subsection (2) that the offence does not in fact cause the partner or ex-partner physical or psychological harm. (4) Evidence from a single source is sufficient to prove that an offence is aggravated as described in subsection (1)(a). (5) Where subsection (1) applies, the court must— (a) state on conviction that the offence is aggravated as described in subsection (1)(a), (b) record the conviction in a way that shows that the offence is so aggravated, (c) take the aggravation into account in determining the appropriate sentence, and (d) state— (i) where the sentence imposed in respect of the offence is different from that which the court would have imposed if the offence were not so aggravated, the extent of and the reasons for that difference, or (ii) otherwise, the reasons for there being no such difference. (6) For the purposes of this section, a person is a partner of another person if they are— (a) spouses or civil partners of each other, (b) living together as if spouses F1 ... of each other, or (c) in an intimate personal relationship with each other, and the references to a person's ex-partner are to be construed accordingly. (7) In this section— “ cause ” includes contribute to causing (and “ causing ” is to be construed accordingly), “ psychological harm ” includes fear, alarm or distress. Textual Amendments F1 Words in s. 1(6)(b) repealed (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5) , s. 15(2) , sch. para. 11(2) ; S.S.I. 2018/387 , reg. 2 (with reg. 7 ) Commencement Information I1 S. 1 in force at 24.4.2017 by S.S.I. 2017/93 , reg. 2 (with reg. 3 ) (1) In proceedings for an offence that is aggravated as described in section 1(1)(a), the matter of a person being another person's partner or ex-partner is to be taken as established— (a) according to the stating of the matter in the charge of the offence in the complaint or indictment, and (b) unless the matter is challenged as provided for in subsection (2). (2) The matter is challenged— (a) in summary proceedings, by— (i) preliminary objection before the plea is recorded, or (ii) later objection as the court allows in special circumstances, (b) in proceedings on indictment, by giving notice of a preliminary objection in accordance with section 71(2) or 72(6)(b)(i) of the 1995 Act. ] Textual Amendments F2 S. 1A inserted (1.4.2019) by Domestic Abuse (Scotland) Act 2018 (asp 5) , s. 15(2) , sch. para. 11(3) ; S.S.I. 2018/387 , reg. 2 (with reg. 7 )

(1) A person (“A”) commits an offence if— (a) A discloses, or threatens to disclose, a photograph or film which shows, or appears to show, another person (“B”) in an intimate situation, (b) by doing so, A intends to cause B fear, alarm or distress or A is reckless as to whether B will be caused fear, alarm or distress, and (c) the photograph or film has not previously been disclosed to the public at large, or any section of the public, by B or with B's consent. (2) For the purposes of this section, a photograph or film is disclosed if it, or any data or other thing which is capable of being converted into it, is given, shown or made available to a person other than B. (3) In proceedings for an offence under subsection (1), A has a defence if any of the following facts is established— (a) B consented to the photograph or film being disclosed, (b) A reasonably believed that B consented to the photograph or film being disclosed, (c) A reasonably believed that disclosure of the photograph or film was necessary for the purposes of the prevention, detection, investigation or prosecution of crime, or (d) A reasonably believed that disclosure of the photograph or film was in the public interest. (4) For the purposes of subsection (3), consent to the photograph or film being disclosed may be— (a) consent which is specific to the particular disclosure or (as the case may be) the particular threatened disclosure, or (b) consent to disclosure generally where that consent covers the particular disclosure or (as the case may be) the particular threatened disclosure. (5) In proceedings for an offence under subsection (1), A has a defence if the following matter is established— (a) B was in the intimate situation shown in the photograph or film, (b) B was not in the intimate situation as a result of a deliberate act of another person to which B did not agree, and (c) when B was in the intimate situation— (i) B was in a place to which members of the public had access (whether or not on payment of a fee), and (ii) members of the public were present. (6) For the purposes of subsection (3), a fact is established, and for the purposes of subsection (5), the matter is established, if— (a) sufficient evidence is adduced to raise an issue as to whether that is the case, and (b) the prosecution does not prove beyond reasonable doubt that it is not the case. (7) A person who commits an offence under subsection (1) is liable— (a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), (b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both). Commencement Information I2 S. 2 in force at 3.7.2017 by S.S.I. 2017/183 , reg. 2(a)