Sexual Offences (Scotland) Act 2009

The Sexual Offences (Scotland) Act 2009 (asp 9) is an Act of the Scottish Parliament. It creates a code of sexual offences that is said to be intended to reform that area of the law. The corresponding legislation in England and Wales is the Sexual Offences Act 2003.

Background

In 2004, the Scottish Law Commission began working on a reference from the Scottish Executive to "examine the law relating to rape and other sexual offences, and the evidential requirements for proving such offences, and to make recommendations for reform" and completed its report in December 2007.^[1] The Scottish Government gave a commitment to bring forward legislation in the light of the Commission's review.^[2] Before the enactment of this Act, Scotland had very few statutory sexual offenses, with most of its sexual legislation being defined at common law, which was increasingly seen as a problem.^[3]

On 17 June 2008, the Scottish Government introduced the Sexual Offences (Scotland) Bill to the Scottish Parliament.^[4] The Bill was passed by the Parliament on 10 June 2009.^[5] The Act came into force on 1 December 2010 (except for sections 52 and 53(2)).^[6]

The Act provides for a definition of consent; it states that "“consent” means free agreement (and related expressions are to be construed accordingly)".^[7] Under the Act, a number of circumstances where the victim is unable to give consent (such as incapacitation due to alcohol consumption) are illegal.^[8] A spokesperson for the Scottish Executive has said that the Act provides “a clear legal framework that reflects the values of modern society.”^[9]

The Offence of Rape

This section creates the offence of rape. This is the first statutory definition of rape in Scots law; prior to this Act, the offense was defined at common law. Male rape is also included in the offense of rape; before this new definition, rape was defined as non-consensual vaginal intercourse imposed by a male against a female.

Rape is defined as follows:^[10]

Rape

(1) If a person (“A”), with A's penis—

(a) without another person (“B”) consenting, and

(b) without any reasonable belief that B consents,

penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B then A commits an offence, to be known as the offence of rape.

Other Offences under the Act

The Act creates several other offences in the law of Scotland.

Sexual Assault - This offence may include any non-consensual: penetration that would not meet the definition of rape, sexual touching, any form of sexual activity (whether or not through clothing), ejaculation of semen or emission of urine/saliva onto a person for sexual purposes.
Sexual Coercion
Coercing a person to be present during a sexual activity
Coercing a person into looking at a sexual image
Communicating indecently - For instance, sending a sexually explicit text message against the receiver's wishes.
Sexual exposure - This offence involves the exposure of his or her genitals purely for sexual purposes. It differs from indecent exposure, which can only be committed in a public place.
Voyeurism - Where a person operates equipment to record or observe someone's genitals, buttocks or underwear; or while they undertake a private action such as changing clothes, using a toilet, washing, or engaging in a sex act themselves.
Administering a substance for sexual purposes

Meaning of 'Consent'

Consent is defined in the Act as 'free agreement'. In determining whether an accused had 'reasonable belief' that consent existed, "regard is to be had to whether the person took any steps to ascertain whether there was consent or, as the case may be, knowledge; and if so, to what those steps were". The following examples are given in s.13-15 of the Act of where consent would not be established. The person carrying out the offence would be 'Person A' and the victim, 'Person B'.

Where Person B was under the influence of alcohol or drugs.
Where Person B was asleep or unconscious.
Where Person B only consented due to being threatened with violence by Person A.
Where B consents whilst unlawfully detained by A.
Where B only consents because they are mistaken as to the nature of the conduct, due to A's misrepresentation.
Where B only consents as a result of A impersonating a personality known to B.
Where someone other than B consents on their behalf.
Where B initially consents, but then withdraws their consent during the sexual act.
Where B is mentally disordered and so incapable of understanding the nature of the activity.

Offences relating to Children

Sections 18-47 of the Act are on the subject of sexual offences relating to children, and to people under a duty of care such as mentally disordered persons. A person under the age of 16 cannot consent to a sexual activity in Scots law, and two key offences exist: 'Rape of a Young Child' (if the child is aged 0-13), and 'Rape of an Older Child' (aged between 13-15). It is a defence in the latter to argue a reasonable belief that the child had attained age 16, but there is no similar defence regarding the former offence.

References

↑ Scottish Law Commission
↑ Scottish Government "Principles & Priorities" - Safer and Stronger Scotland
↑ see the Report on Rape and Other Sexual Offences, by the Scottish Law Commission, page 2
↑ Sexual Offences (Scotland) Bill
↑ Scottish Government news release
↑ "The Sexual Offences (Scotland) Act 2009 (Commencement No. 1) and the Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No. 4) Order 2010" (PDF). legislation.gov.uk. Retrieved 27 November 2016. line feed character in |title= at position 54 (help)
↑ Sexual Offences (Scotland) Act 2009, s.12
↑ "MSPs pass major sex crime reforms". BBC News. BBC. 10 June 2009.
↑ "Fears that flagship rape laws fail women". The Herald. Glasgow: Herald & Times Group. 14 April 2010.
↑ Sexual Offences (Scotland) Act 2009, s.1

External links

The Sexual Offences (Scotland) Act 2009, as amended, from the National Archives
The Sexual Offences (Scotland) Act 2009, as originally enacted, from the National Archives

United Kingdom legislation

Pre-Parliamentary legislation	List of English statutes Charter of Liberties Magna Carta

Acts of Parliament by states preceding the Kingdom of Great Britain	Acts of the Parliament of England to 1483 1485–1601 1603–1641 Interregnum (1642–1660) 1660–1699 1700–1706 Acts of the Parliament of Scotland

Acts of Parliament of the Kingdom of Great Britain	1707–1719 1720–1739 1740–1759 1760–1779 1780–1800

Acts of the Parliament of Ireland	to 1700 1701–1800

Acts of Parliament of the United Kingdom of Great Britain and Ireland and the United Kingdom of Great Britain and Northern Ireland	1801–1819 1820–1839 1840–1859 1860–1879 1880–1899 1900–1919 1920–1939 1940–1959 1960–1979 1980–1999 2000 to date Halsbury's Statutes Legislation.gov.uk Short titles

Church of England measures	List Church of England Assembly (Powers) Act 1919

Legislation of devolved institutions	Acts of the Scottish Parliament List Acts and Measures of the National Assembly for Wales List Acts of the Northern Ireland Assembly List Acts of the Parliament of Northern Ireland List Orders in Council for Northern Ireland List

Orders-in-Council	Order in Council

Secondary legislation	United Kingdom Statutory Instruments Scottish Statutory Instruments Acts of Sederunt Acts of Adjournal

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