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SEXUAL OFFENCES
A major change to the law on sexual offences occurred with the bringing into force (on 1 st December 2010) of the Sexual Offences (Scotland) Act 2009. Prior to that, the Scots law on sexual offences was a chaotic amalgam of common law offences and an unsystematic mix of statutory offences. The 2009 Act implemented most of the recommendations of the Scottish Law Commission (see Report on the Law of Rape and Other Sexual Offences (Scot Law Com No 209 (2007)), although it also departs from them in certain significant respects. Most (but not all) of the law on sexual offences is contained in the 2009 Act but the pre-Act law will remain relevant for many years yet. Sexual offending can often go unreported for some considerable time, and so charges are frequently brought in respect of historic sexual offences, often (but by no means always) involving children. (See eg HM Adv v L 2009 SLT 127.) Most textbooks deal only with the previous law, but chapter 9 of the Gane, Stoddard & Chalmers, Casebook is based on the 2009 Act. For a good overall commentary on the 2009 Act, see J Chalmers, The New Law of Sexual Offences in Scotland (2010 ). A. Rape and sexual assaults At common law rape was narrowly defined. All other types of sexual assault were classified as assaults 'aggravated by circumstances of indecency'. At common law, the actus reus of rape was constituted by a man having 'sexual intercourse' (ie penile-vaginal penetration) with a woman without her consent. The use of force (or the threat of force) was not required. See * Lord Advocate's Reference (No 1 of 2001) 2002 SLT 466, overruling Charles Sweenie (1858) 3 Irv 109. At one time, it was thought that a husband could not at common law be guilty of raping his wife (Hume, i, 306), but the Scottish courts rejected that rule in S v HM Adv 1989 SLT 469 (often referred to as Stallard v HM Adv, under which name it is reported at 1989 SCCR 248). Under the 2009 Act there are three categories of sexual assault offences: Rape (s 1) Sexual assault by penetration (s 2) Sexual assault (s 3) Rape (section 1). Actus reus: penetration by A with penis of the vagina, anus or mouth of B without B's consent (note separate offence of rape of a child under the age 13: s 18)
Sexual assault by penetration (section 2). Actus reus: (non-penile) penetration [or any penetration?] by A of the vagina or anus of B without B's consent. Sexual assault (section 3): any of the following acts done by A without B's consent: (a) sexual penetration of B's vagina, mouth or anus [what types of penetration apply here?] (b) sexual touching (c) other sexual contacts (d) sexually ejaculating semen (e) sexually emitting urine or saliva Other types of sexual assault: left to the common law? Q: What is the meaning of 'sexual'? - what a reasonable person would consider as sexual (s 60(2)). For a recent case considering the appropriate sentence in a rape case where the complainer and accused are known to each other see: HMA v Cooperwhite [2013] HCJAC 88 B. Offences involving coercing/compelling sexual activity (sections 4-7) Offences in sections 4-7 all require that B did not consent and that A had no reasonable belief as to B's consent No definition of 'causing' Can offences be committed recklessly? Sexual coercion(section 4): A causing B to participate in sexual conduct overlap with sexual assault provisions interaction with defence of coercion Sections 5- For these offences, unlike section 4 , the victim is 'inactive' or passive. Also a limiting requirement of A's purpose of sexual gratification, or of humiliation, distress or alarm to B. (What if this purpose is not in fact achieved?) Causing person to be present during sexual activity (section 5) scope: 'live' sexual activity requirement of presence, no need to prove B watched Causing person to look at sexual image (section 6) scope: sexual images
(4) A installs equipment or constructs or adapts a structure or part of a structure with the intention of enabling A or another person to do any of the above acts What is a private act? For the purposes of s 9, a person is doing a private act if the person is in a place which in the circumstances would reasonably be expected to provide privacy, and The person's genitals, buttocks or breasts are exposed or covered only with underwear The person is using a lavatory, or The person is doing a sexual act of a kind not ordinarily done in public Voyeurism Part 2: 'Upskirting' and 'downblousing'' An amendment was made to section 9 to combat the menace of 'upskirting' and 'downblousing'. For nature of the problem see R v Hamilton [2008] QB 244. It is an offence where: A operates equipment beneath B's clothing with intention of allowing A (or C) to observe B's genitals or buttocks (or underwear covering B's genitals or buttocks) where these would not otherwise be visible A records an image beneath B's clothing with intention that A (or C) will look at the image of B's genitals or buttocks (or underwear covering B's genitals or buttocks) where these would not otherwise be visible Are the provisions in sections 9 & 10 a good model of criminal law reform? (E) Consent and sexual offences (ss 12-15) The common law: Marr v HM Adv 1996 SCCR 696: consent means consent. 2009 Act aims to set out a so-called 'positive' or 'co-operative' model of consent. It uses a two-tiered definition: (1) a general definition (s 12) and various particular definitions (s 13). General definition (s 12): 'Consent' means free agreement. is this too vague? (Contrast English law: a person consents if he agrees by choice, and had the freedom and capacity to make that choice (Sexual Offences Act 2003, s 74)) should the law still refer to consent at all? Particular definitions. Note that this list is non-exhaustive. It does not deal with issues of (general) capacity. It does refer to particular incapacities, in which case it requires proof of causal link Particular definitions (s 13(2)):
(a) where the conduct occurs at a time when B is incapable, because of the effect of alcohol or any other substance, of consenting to it What does this mean? Levels of intoxication – * R v Bree [2008] QB 131 (English case) Q: what if the complainer has given ‘prior consent’ to sex when later incapable due to alcohol or other substance? Contrast original version of this provision: where the only indication or expression of consent by B to the conduct occurs at a time when B is incapable, because of the effect of alcohol or any other substance, of consenting to it. (b) where B agrees or submits to the conduct because of violence used against B or any other person, or because of threats of violence made against B or any other person violence, not force prior to, not during, sexual attack application to historic abuse? other threats (including threats of violence not against people) (c) where B agrees or submits to the conduct because B is unlawfully detained by A detention must be by A detention must be 'unlawful' the Stockholm syndrome? (d) where B agrees or submits to the conduct because B is mistaken, as a result of deception by A, as to the nature or purpose of the conduct deception as to sexual nature of conduct cp R v Williams [1923] 1 KB 340; Baillie v HM Adv 2007 SCCR 26 procedures done for legitimate purposes but where A obtains sexual gratification? deception carried out by third party deception not relating to nature and purpose of act (eg A is free from HIV, cp R v B [2007] 1 WLR 1567 (e) where B agrees or submits to the conduct because A induces B to agree or submit to the conduct by impersonating a person known personally to B what is meant by 'known personally'? not re 'attributes' but identity deception carried out by third party (f) where the only expression or indication of agreement to the conduct is from a person other than B consider facts in DPP v Morgan [1976] AC 182 expressing consent through third party. The sleeping complainer and the problem of 'prior consent'
2009 Act, s 16: Requirement is that A acted without any reasonable belief that B consented. In determining whether a belief was reasonable regard to be had to steps taken by A to ascertain whether B did consent; and what those steps were. is Scottish test purely objective or partly subjective? contrast English law: "whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents." (Sexual Offences Act 2003, s 1(2)). (G) Protective offences: offences against children: (1) Young children Specific forms of the sexual offences mentioned above which apply where the victim is a young child (ie a child not yet 13). The offences are: rape of a young child (s 18) assault by penetration and sexual assault of a young child (ss 19-20) coercing or compelling young child to participate in or be present during sexual activity (ss 21-22) coercing or compelling young child to look at sexual image (s 23) communicating indecently with a young child (s 24) sexual exposure to a young child (s 25) voyeurism towards a young child (s 26) NB No defences of consent, or mistake as to age of child (s 27): cf R v G [2009] 1 AC 92. (2) Older children (ie child older than 13 but younger than 16) For these offences (i) the accused must be 16 or older and; (ii) the older child consents to the conduct The offences are: intercourse with an older child (s 28) penetrative sexual activity and sexual activity with an older child (ss 29 and 30 causing older child to participate in or be present during sexual activity (ss 31-32) causing older child to look at sexual image (s 33) communicating indecently with an older child (s 34) sexual exposure to an older child (s 35) voyeurism towards an older child (s 36) There is a further offence involving older children: Older child having sex with another older child (s 37). The actus reus is A with penis penetrates B's vagina, anus or mouth A with mouth sexually touches B's vagina, anus or penis
How satisfactory is this provision? The Scottish Law Commission recommended that no consenting sexual conduct between older children should be criminalised. Defences in relation to older children offences (s 39): Reasonable belief that the child was 16 or older (but not if (i) A has been previously charged by the police with a 'relevant' sexual offence or (ii) there is a risk of sexual harm order against him) (Except for offences involving sexual penetration) proximity of age of 2 years (H) Interaction of 2009 Act and older law 2009 Act, s 52 (Common law offences) "For all purposes not relating to offences committed before the coming into force of this section— (a) the common law offences of— (i) rape, (ii) clandestine injury to women, (iii) lewd, indecent or libidinous practice or behaviour, and (iv) sodomy, are abolished, and (b) without prejudice to paragraph (a), in so far as the provisions of this Act regulate any conduct they replace any rule of law regulating that conduct." The 2009 Act also repealed various statutory offences including some in the Criminal Law (Consolidation)( Scotland) Act 1995, including s 5 (intercourse with girl under 16),s 6 (indecent behaviour towards girl between 12 and 16), and s 13(1)-(8A), (10)-(11) homosexual offences). (I) Incest Jones & Christie (5th^ edn), paras 12-31 to 12- Until 1986, the relevant statute was the Incest Act 1567 (see the Scottish Law Commission's report on The Law of Incest in Scotland (1981)). See now the Criminal Law (Consolidation) (Scotland) Act 1995, ss 1-2. Cf. HM Adv v K 1994 SCCR 499. The offence is limited to 'sexual intercourse' between a man and a woman (but not people of the same gender) who are related to each other in certain defined relationships. Formerly, it was thought that incestuous sexual activity short of penile-vaginal penetration could amount to the crime of shameless indecency: see R v HM Adv 1988 SLT 623.
