THE Scottish Parliament will tomorrow debate a petition calling for the creation of a new criminal offence to cover cases where domestic abuse causes the loss of a pregnancy.

The petition has been under consideration since 2021 by the Citizen Participation and Public Petitions Committee (CPPPC).

At present, someone who attacks a pregnant woman in Scotland and causes the loss of her pregnancy can be charged with assault or attempted murder, depending on the severity of the attack, but there is no distinct charge that can be brought in recognition of the pregnancy loss.

This is in contrast to the rest of the UK, where a crime of “child destruction” exists and can be used in such cases.

An abuser such as Stephen Ramsay, who violently attacked his pregnant partner in Glenrothes, Fife, in 2019, not only causing her extensive and lasting injury, but also causing the stillbirth of their 32-week twins, would undoubtedly have been convicted of child destruction as well as offences against his partner had the attack taken place anywhere else in the UK. But because it took place in Scotland, although Ramsay was convicted of attempted murder, there was no crime that specifically recognised the additional harm he did to his victim by causing the loss of her twins.

The loss of a wanted pregnancy is always heartbreaking and when such loss is caused by violence or abuse it represents a unique and severe kind of harm to a woman, one not adequately acknowledged by charges of assault or attempted murder.

The CPPPC described the petitioner’s evidence of her own experiences as “profoundly moving” and, in light of the evidence from a range of stakeholders, recommended that a new crime should be created.

Having considered various ways of doing this, the committee was satisfied that the best way forward would be to amend the Domestic Abuse (Scotland) Act 2018 and insert the new crime within that framework. This proposal is likely to be the focus of tomorrow’s debate.

The National: Angela Constance

Disappointingly, the Justice Secretary, Angela Constance (above), has been reluctant to support the committee’s recommendation. Despite recognising that the issue the petition addresses is “tragic” and one that “no woman should have to endure”, Constance raises three reasons why she is “not persuaded at this time that we should introduce a new offence”. All of these can be answered easily.

First, Constance claims “it is likely to prove difficult to demonstrate” what caused the loss of a pregnancy. This can be answered by pointing to convictions for child destruction in the rest of the UK, where the evidentiary issues are similar.

In fact, the crime of child destruction is even more difficult to prove than the proposed new Scottish offence would be, since in the rest of the UK it has to be shown that the accused intended to cause stillbirth and this can make it difficult to convict.

The Scottish proposal has been drafted to cover reckless behaviour too, avoiding this issue. So the Justice Secretary’s first concern can be allayed. It will be easier to convict in Scotland than in the rest of the UK, where men are regularly sent to prison for the equivalent offence of child destruction.

In any case, we don’t take this approach where other crimes are concerned. The difficulty of proving rape is well known, for example (so much so that evidentiary rules were recently changed), but we don’t conclude that the crime of rape should not exist.

We need a crime to exist so that perpetrators can be punished where it can be proven. The same applies to this proposed crime. In some cases, it will be possible to prove that a pregnancy loss was caused by abuse and we should have a crime in Scotland for use in those cases.

Constance also suggests that the behaviour the new crime would punish may already be covered by the existing provisions of the 2018 Act or by the common law of assault.

It is not.

Only a “course of behaviour” can currently be punished under the 2018 Act, and even where pregnancy loss occurs within a wider context of abuse, the loss happens as a result of one of the attacks within the pattern. The 2018 Act would need to be amended in the way the CPPPC recommends in order for a one-off attack to come within its scope.

As for the common law, again the point is that charges of assault and/or attempted murder do not acknowledge the separate harm of pregnancy loss.

It is not simply a question of whether we can already hand out long sentences to men who cause this kind of harm. What victims such as the petitioner are seeking is for Scots law to name and acknowledge the entirety of what has been done to them, as the law can do elsewhere in the UK.

Finally, the Justice Secretary worries about what she calls “unintended consequences” for women if a new crime were to be created.

The concern here is that a new crime could be dangerous for women, since the crime of child destruction in the rest of the UK has – exceedingly rarely – been used to charge women who terminate their pregnancies at a very late stage.

There is simply no risk whatsoever that the proposed new Scottish crime could be used in this way.

Drafted in the way the committee has recommended, and contained within the 2018 Act, the crime would apply exclusively to partners and former partners who cause pregnancy loss through violence or abuse – it could never be used to prosecute pregnant women themselves, or their doctors.

The purpose of the new crime would be very clear: to acknowledge and punish a very serious kind of harm to women.

Framing it within the 2018 Act would ensure that it could only ever be used to protect, and never to punish women.

It is right, of course, that any proposed new crime be thoroughly considered, but this proposal has been examined carefully, and any concerns can be comprehensively answered.

A change to the 2018 Act is long overdue, and the Scottish Parliament should seize the opportunity to progress it tomorrow.

Dr Mary Neal is a Reader in law at the University of Strathclyde and Ryan McAdam is an LLB Law graduate from Robert Gordon University, who wrote his undergraduate dissertation on the topic “Should Scotland Introduce a Offence of Child Destruction?”