Scottish Law Commission (Reports)

Part 3 Sexual assaults

Introduction

3.1      In this Part we consider the category of sexual offences which can be referred to, in a general and non-technical way, as sexual assault. In particular we are focussing on crimes in which the lack of consent by the victim is a central element in the definition of the offence.^[1] Strictly speaking, in current Scots law there is no recognised category of crime called sexual assault. The two main relevant offences are rape and indecent assault. Historically rape has always been regarded as a separate offence from assault, probably as a consequence of the older view that the wrongfulness of rape was the attack on the victim's honour and value rather as an infringement of her physical and sexual autonomy. Furthermore as a matter of strict law there is no offence know as indecent assault. Rather the crime consists of "assault aggravated by indecency in the manner of its commission."^[2]
3.2      It is also important to be clear about the ways in which these offences are defined. In Scots law the definition of the physical requirement of rape is very narrow. Rape consists of the penetration of a woman's vagina by the penis of the accused without the woman's consent. All other forms of sexual assault, including penile penetration of other parts of the victim's body, or other types of vaginal penetration, are not rape but indecent assaults. By contrast with rape, the scope of indecent assault is very wide and covers all forms of contact by one person on another in circumstances of indecency.^[3] The gender of the parties is immaterial. However, little guidance has been given on the criteria to be used in determining that an assault is indecent in nature.^[4]
3.3      In the Discussion Paper we expressed our dissatisfaction with the current law. We had three main concerns: the first was that the law did not give direct recognition of the special and specific wrongfulness of sexual assaults. Secondly, the division of offences into rape and indecent assault failed to reflect the different types of infringement of a victim's sexual autonomy. Thirdly, there are problems in the way the current offences are defined. In Part 2 we have already considered one of these definitional problems, which is that, although the lack of consent by the victim is a central element in both rape and indecent assault, the law does not define consent and indeed does not allow for consent to be defined or explained to juries. We now consider each of these issues.

Should there be a separate category of sexual assaults?

3.4      There are various arguments for not introducing a separate category of sexual assault. Rape and indecent assaults are essentially acts of violence and should be seen as part of the law on assault. Classifying these offences as separate from other types of assault might fail to reflect the violence involved in sexual attacks. Secondly, drawing a distinction between sexual and other forms of assault involves the difficult question of defining what is meant by sexual in this context. Furthermore, the current law of assault does allow for attention to be given to the sexual nature of certain types of assault. The law of assault does not draw rigid distinctions between different categories but instead allows for various circumstances which are recognised as aggravating an assault.^[5] On this approach, sexual assaults would not be a separate type of sexual offence but the sexual character of some assaults could be used to indicate an aggravating circumstance.
3.5      We are not convinced of the merits of this approach. Whilst it is true that many types of rape and indecent assault are violent in nature, others are not. Rape and indecent assault can involve situations which, while coercive in nature, are not violent. Indeed, many instances of rape occur between people who are acquainted with each other and involve a minimal degree of violence. We think it right that the law should refuse to reflect the view that non-violent rape is not 'real' rape. Moreover, one of our guiding principles for reform of the law on sexual offences is that the law should promote and protect sexual autonomy.^[6] But this key principle is undermined if sexual assaults are treated as only examples of the more general offence of assault. Furthermore, the specific wrong of sexual assault is the infringement of sexual autonomy; the use of violence is an additional, not a central, part of the wrongdoing.^[7]
3.6      There is also the matter of appropriate labelling. It does not seem right for the law to say, for example where a man attacks a woman by penetrating her anus with his penis that she has not been the victim of a sexual assault. Common sense suggests that is exactly what has happened. Yet under the current law there is no such offence of sexual assault.
3.7      In the Discussion Paper we argued that violation of sexual autonomy is a specific form of wrong suffered by the victim, and accordingly we proposed that there should be a general category of sexual offence which has assault at its core. There was unanimous support for this proposal among our consultees. Indeed, one of the consultees made the point that, whatever the theory of the present law, indecent assault was de facto treated for some purposes at least as a separate category of offence from assault in general.^[8]
3.8      Accordingly we recommend that:

9. Sexual assaults should not be subsumed within the general law of assault but should form a separate category of offence.

(Draft Bill, sections 1-2)

Undifferentiated sexual assaults

3.9      A second option is to have a general offence of sexual assault but no specific types or subcategories within that general offence. Some legal systems which have adopted this approach have marked out differentiation of sexual assaults by the general categories of the law of assault (for example, sexual assault involving grievous bodily harm). However, as noted earlier, the Scots law of assault tends not to use rigid divisions of types of assault. No doubt such categories could be devised for sexual assaults but adopting such an approach is in effect to concede that distinctions should be made between different types of sexual assault. A significant consequence of treating all sexual assaults within one broad category is that there would be no room for terms such as rape to describe particular types of sexual assault. We examine this point below but for present purposes our main objection to having a general category of sexual assault is that it fails to mark out the range of types of wrong which different types of sexual assault can involve. It seems to us that there are major differences between, for example, a sexual assault involving penetration of the victim's body with a penis or with an object and an assault involving the touching of the victim's breasts or buttocks. In the Discussion Paper we set out our view that the law on sexual assaults should reflect these differences in the wrong done to the victim. Almost all of our consultees agreed with this view.^[9] We recommend that:

10. Sexual assaults should not be classified as one general type of offence but should be divided into specific types of offence.

(Draft Bill, sections 1-2)

Distinguishing types of sexual assault

3.10      In the Discussion Paper we identified a third option, which was to distinguish different types of sexual assault in terms of more specific wrongs done to the victim. We developed a detailed model showing how this approach would work. The key characteristics of this model, which are inter-related, are set out in the following paragraphs.
3.11      (1) Its first element involves a distinction between penetrative and non-penetrative sexual assaults. The rationale of this distinction is that in the context of sexual assault, penetration is a particularly serious attack on a person's physical (and emotional) integrity and a major infringement of his or her sexual autonomy. The point is not that non-penetrative sexual assaults are necessarily of lesser seriousness; some may be, but not all are, and much depends on the circumstances and nature of the assault. Rather, sexual penetration of another person's body without that person's consent is a distinctive type of attack on that person and the law should mark out the different forms of wrong which are involved in each type of sexual attack.
3.12      (2) We also argued that a further distinction should be made between assaults involving penetration with a penis and assaults by penetration with something else (either another part of the body or an object). Our basis for making this proposal was the view that as the penis is a sexual organ, penetration with a penis represents a quite different form of wrong from other forms of penetration. There is an added dimension to the sexual nature of an attack when it involves penetration with the sexual organ of another person, which for practical purposes means the penis.
3.13      (3) A further point concerns the issue whether the law should continue to use the term rape to refer to a certain type of sexual assault. In the Discussion Paper we noted that in some legal systems, the word rape has been removed from the law on sexual crimes.^[10] However, we also pointed out that the experience of those systems suggested that little was gained by taking this approach. There was a danger that by not using the term rape, the seriousness of the offence became downgraded. We therefore took the view that Scots law should continue to have a crime known as rape. The stigmatic effects of this word have important functions in labelling a particular form of wrongdoing.^[11]
3.14      (4) The next issue was how each of the separate offences should be defined. We proposed a three-fold set of offences within a general category of sexual assault: rape; sexual penetration; and a residual category of sexual assault. Rape would be defined as penile penetration of another person's vagina, anus or mouth. The offence of sexual penetration would cover the penetration of another person's genitalia or anus (but not the mouth) by anything other than a penis. The last category, the appropriate name of which was not clear to us, would cover all other forms of sexual touching or contact with another person. It is, of course, a fundamental feature of these proposed offences that the victim did not consent to the sexual activity.^[12]
3.15      (5) In the Discussion Paper we did not discuss the maximum penalties for any of the proposed offences but we did state that the offences of rape and sexual penetration should attract the same maximum penalty.
3.16      This set of proposals attracted a very wide range of support. Almost all of our consultees agreed that the law should distinguish between penetrative and non-penetrative sexual assault. All consultees accepted that the law should retain the term rape but there was some disagreement with our proposed general definition of that offence as involving penile penetration (but not other forms of penetration).^[13] A similar difference in views arose in respect of the more particular definition of rape as the penile penetration of another person's vagina, anus or mouth, but some consultees made a further point that rape should not cover penetration of the mouth.
3.17      There was general consensus that there should be a separate offence of sexual assault by penetration,^[14] and several consultees maintained that it should attract the same range of penalties as rape. There was also broad agreement that the offence should be defined as non-penile penetration of another person's genitalia or anus.^[15]
3.18      As regards the residual offence most consultees agreed that there should be such an offence. A substantial majority suggested that it should be known as sexual assault. However, two consultees were of the view that the conduct in question should be left to the common law, and another suggested that the common law should remain in addition to a new statutory offence.
3.19      Taking full account of the views expressed during the consultation process, we maintain the position that the recommendations on rape and other sexual assaults set out in the Discussion Paper constitute the correct approach for reform of the law. There was overwhelming support for all of the recommendations in question. However, the proposals which we now make differ in some respects from those in the Discussion Paper, partly as a result of points made by consultees and partly to reflect our own developed views. We set out the detail of our proposals in the paragraphs to follow but it might be useful to present a general summary.
3.20      We consider that the law should retain the term rape and that the offence should be limited to certain types of penile penetration. We also believe that there should be a more general offence of sexual assault but we are of the view that that offence requires more detailed definition than was recommended in the Discussion Paper. However, we have changed our approach to the distinction between penetrative and non-penetrative offences.
3.21      We continue to hold the view that in a general sense there should be a distinction between penetrative and non-penetrative sexual assaults and also that offences involving penetrative assaults should be divided into those of penile penetration and non-penile penetration. However, we now recommend that while non-penile penetration should be marked out as a specific kind of sexual attack, it should constitute one way of committing the offence of sexual assault rather than being a separate offence. In other words, we are now proposing that there should be a two-fold division between rape and sexual assaults (which would include non-penile penetration). The maximum penalty for sexual assault should be the same as that for rape, namely life imprisonment.
3.22      We now consider in more detail how the offences of rape and sexual assault should be defined.

Rape

3.23      Under the existing law, rape involves the penetration of the vagina of one person by the penis of another person but does not include any other form of penile penetration. This has the effect that, in popular though inaccurate terms, only a man can commit rape and only a woman can be raped. We see no reason why rape should continue to be defined so narrowly. Penile violation of a person's anus or mouth is as severe an infringement of sexual autonomy as violation of a vagina. Furthermore the present definition means that while penile penetration of a man is criminal (either as sodomy or indecent assault), it is not regarded as rape. Again, we can identify no reason why men and women victims of penile assault should be treated in different ways. These factors have been recognised in other legal systems where the definition of rape is much wider than that of Scots law. In 1994 the scope of rape in English law was widened to include penile penetration of a person's anus,^[16] and the definition was expanded by the Sexual Offences Act 2003.^[17]
3.24      On the other hand, we do not think that rape should be defined too widely to include, for example, all forms of sexual penetration; we consider that it should be confined to penile penetration. We take this view for the reason that since the penis is a sexual organ, penile penetration constitutes a special type of wrong which is not present in other types of penetration.
3.25      Accordingly there are two strands to our approach: first, that rape should be expanded to include penile penetration of the victim's mouth or anus; but, secondly, rape should not cover all forms of sexual penetration. In the Discussion Paper we noted that a similar approach had been adopted in other reviews of the scope of rape. For example, the Home Office Review Group argued that the offence should not be extended to include all forms of sexual penetration. It felt that:^[18]

"the offence of penile penetration was of a particularly personal kind, it carried risks of pregnancy and disease transmission and should properly be treated separately from other penetrative assaults."

3.26      A similar view was expressed in the commentary on the Draft Criminal Code:^[19]

"Penetration by things other than the penis is not defined as rape in this section. It is felt that while modern understanding of the idea of rape extends beyond ordinary sexual intercourse, there is merit, not least in terms of labelling the offence, to confine it to a relatively limited range of sexually aggressive behaviour."

3.27      In the Discussion Paper we proposed that the offence of rape should not include all types of sexual penetration but that it should be widened from its current definition to include penile penetration of the victim's vagina, anus, or mouth. This proposal found widespread support among our consultees, and we are not persuaded by the view of those who opposed it. Keeping the definition narrow, as in the present law, fails to bring together the separate ways of committing what is the same wrong. But at the same time putting all types of sexual penetration or indeed all sexual assaults under the heading of rape fails to bring out what is the specific wrong involved in penile penetration.
3.28      Accordingly we recommend that:

11. The actings which constitute the offence of rape should be defined in terms of the penetration by a person with his penis of the vagina, anus or mouth of another person without that person's consent.

(Draft Bill, section 1)

3.29      There are several aspects of the definition of rape contained in the attached Draft Bill which call for comment.

Actus reus

3.30      There are two key components of the actus reus of the proposed offence of rape: first, penile penetration by the perpetrator (A) of the vagina, anus or mouth of the victim (B);^[20] secondly the lack of the victim's consent to this penetration. The meaning of consent in this context was discussed earlier in Part 2. Note should be made of certain provisions seeking to clarify some other aspects of the actus reus.
3.31      The first is that the definition refers not to the gender of the parties, but to parts of the body. The consequence is that any person who has a penis can commit rape and any person who has a vagina,^[21] anus or mouth can be a victim of rape.^[22] In the vast majority of cases there should be no difficulty in establishing that a person, whether as an accused or as a victim, possessed the relevant part of the body at the time of the alleged rape. However, problems could arise in respect of surgically constructed or reconstructed parts of the body. Accordingly, 'penis' and 'vagina' are defined so as to include an artificial penis or vagina created in the course of surgical treatment. Again the focus is not on the gender of the parties. It is rather on the factual question of did the accused or the victim possess the relevant part of the body at the time of the offence. For example, there would be no need to show in respect of an accused with an artificial penis that he had obtained a gender recognition certificate.^[23]
3.32      The Bill also deals with a possible ambiguity in the term 'penetration'. Penetration could mean solely the initial act of penetrating or it could also include the state of being penetrated. The difficulty is where penetration was initially consented to but consent was withdrawn while the state of being penetrated continued. It could be argued that on the first, narrow sense of penetration there had been no penetration without consent. The Bill makes clear that the definition of rape uses the second and wider idea of penetration; penetration is a continuing act from entry until withdrawal of the penis. The effect is that where B withdraws consent during penetration and A does not respond by removing his penis, A's conduct then falls within the scope of the offence.

Penalties and jurisdiction

3.33      To reflect the seriousness of the wrong involved in any act of rape we recommend below that the maximum penalty for a conviction for the crime should be life imprisonment.^[24] At common law rape is a plea of the Crown. In other words it is within the exclusive jurisdiction of the High Court of Justiciary. We later recommend that a similar rule should apply to the statutory offence of rape.^[25]

Common law and statutory provisions on rape

3.34      Two main parts of our recommendations for reforming the law of rape are, first, to widen the range of sexual attacks which the crime involves and, secondly, to introduce a definition of consent. Given the radical nature of these recommendations we see little justification for retaining the narrower common law crime of rape. Subject to issues of transitional cases,^[26] we recommend that the common law crime should be abolished. A further common law crime is clandestine injury to women, which is defined as having sexual intercourse with a woman while she is asleep or unconscious.^[27] Since the decision in Lord Advocate's Reference (No 1 of 2001),^[28] which defined rape as sexual intercourse without a woman's consent, this crime is probably redundant.^[29] In our view having non-consenting penetrative intercourse with someone who is asleep or unconscious is a form of rape or another penetrative sexual assault, and there is no point in retaining the common law crime of clandestine injury. For similar reasons we recommend the repeal of section 7(3) of the Criminal Law (Consolidation) (Scotland) Act 1995 which provides that it is the crime of rape where a man induces a married woman to permit him to have sexual intercourse with her by impersonating her husband.
3.35      We recommend that:

12. (a) the common law offences of rape and clandestine injury to women should be abolished.

(Draft Bill, section 40(a))

(b) section 7(3) of the Criminal Law (Consolidation) (Scotland) Act 1995 should be repealed.

(Draft Bill, section 44(2); schedule 4)

Sexual penetration and sexual assault

3.36      In the Discussion Paper we proposed that in addition to rape there should be two further offences: non-penile penetration and sexual assault. These proposals received overwhelming support from our consultees. We continue to hold the view that the law should mark out non-penile penetration as a specific form of sexual wrong but we now consider that this type of activity should not be a separate offence but should instead be one of several forms of conduct which constitute sexual assault. There are a number of reasons for us adopting this change in our approach to the classification of sexual assaults. One is a matter which was raised by several consultees. This related to the scope of the proposed offence of sexual penetration, which we had limited to (non-penile) penetration of the victim's vagina and anus. Why, it was asked, should the offence not apply to penetration of the mouth? Part of the problem with this extension of the offence is that, although in some instances oral penetration could be as serious as any other forms of sexual penetration (including rape), the offence as so defined would also cover activities such as a 'stolen' kiss. In the Discussion Paper we emphasised that we were not proposing a hierarchy of offences in terms of their relative seriousness but if that were so then we could not propose a different maximum penalty for the residual category of sexual assault than that for the two penetrative offences. Furthermore, we were concerned that in the Discussion Paper we had given little by way of detail about the content of the proposed residual offence of sexual assault, referring simply to sexual 'touching' and sexual 'contact'.
3.37      We now take the view that sexual assault should be defined in terms of specific types of sexual activity, which should include non-penile penetrative assaults. This approach has the advantage that penetrative attacks short of rape are still identified by the law as a specific form of sexual wrongs but there is now no need to draw a sharp distinction between penetrative attacks which constitute the offence of sexual penetration and penetrative attacks which are to be regarded as sexual assaults. Crucially we now recommend that the maximum penalty for any type of sexual assault should be the same as that for rape, namely life imprisonment.^[30]
3.38      In the Discussion Paper we asked what the name of the offence, as a type of sexual attack other than rape and penetrative assault, should be. Most consultees agreed with the general term 'sexual assault'. We accept that this is the most appropriate name for the offence, especially in light of our recommendation that it should now include non-penile penetration.
3.39      The next issue for consideration is the scope of the offence. It will include sexual penetration not amounting to rape.^[31] In the Discussion Paper we proposed that sexual assault should extend to situations where A touches or has contact with B without B's consent. The touching or the contact has to be sexual in nature. These proposals were accepted by our consultees. We now recommend that there should be one further type of activity which should amount to sexual assault. This is where A ejaculates semen onto B without B's consent. At common law this activity would clearly constitute indecent assault. However, the law of assault uses as one of its defining elements the idea of attack, which is given a wide meaning and goes beyond touching or contact.^[32] To ensure that ejaculating semen onto someone else falls within the scope of sexual assault we now make a specific recommendation to that effect.
3.40      We recommend that:

13. There should be an offence to be known as sexual assault.

14. Sexual assault is constituted by the following conduct:

(a) A sexually penetrates the vagina, anus or mouth of B without B's consent;

(b) A sexually touches B without B's consent;

(c) A has sexual contact with B without B's consent;

(d) A ejaculates semen onto B without B's consent.

(Draft Bill, section 2(1), (2))

3.41      There are certain aspects of the offence which deserve some comment.

Defining 'sexual'

3.42      An important element of the offence of sexual assault is that the penetration, touching, or contact is sexual in nature.^[33] The question then is locating the perspective from which to judge an activity as sexual. In the Discussion Paper we set out several options. The first is to take a purely objective approach: would the reasonable person regard the conduct as sexual in nature? A second is to view the conduct through the eyes of the perpetrator: was the purpose of the conduct to seek sexual stimulation? A further option is to adopt the perspective of the victim: whatever the attacker's intentions, did the victim perceive the attack on her as sexual? A final option is to combine these viewpoints.
3.43      We took the view that adopting purely subjective approaches could lead to odd results (for example an accused could not be convicted of a sexual assault where he genuinely believed that touching a woman's vagina or breasts was not sexual in nature). We also considered that attempting to combine objective and subjective elements made the resulting tests too complex to apply. We proposed the use of an objective test. This proposal was accepted by our consultees and we continue in our view that this is the appropriate test. It should be borne in mind that any assault involving a purely subjective sexual element (from the perspective of either the perpetrator or the victim) could still be charged as an assault. Moreover, on conviction of an offender in these circumstances, the court would still have the power to order the use of the sex offender notification procedure.^[34]
3.44      We recommend that:

15. For purposes of the law on sexual assault a penetration, touching or contact is sexual if a reasonable person would consider it to be sexual.

(Draft Bill, section 2(3))

Meaning of penetration

3.45      In relation to sexual assault by penetration, penetration is defined as a continuing act. The purpose of this provision has been earlier explained in connection with the parallel provisions for rape.^[35] A further aspect of sexual offence by penetration is that penetration is defined as including penile penetration. There is therefore an element of overlap between the offences of rape and sexual assault by penetration. However, we do not envisage, where the Crown has evidence that the complainer was subject to penile penetration by the accused, that a charge of sexual assault would be brought. Such a case should be charged as rape. Rather the purpose of allowing an overlap is to cover the situation where the complainer knows that she was penetrated but is not sure what penetrated her (for example, because the attack occurred when she was blindfolded). If an overlap did not exist, then a charge of sexual assault could not lead to a conviction where evidence emerged that the accused had penetrated the complainer with his penis.

Common law crime of indecent assault

3.46      We do not recommend that the common law on indecent assault should be abolished in its entirety. Instead we favour retaining the common law except in relation to those activities which constitute the proposed statutory offence of sexual assault (or indeed any other offence in the Draft Bill). We have included in that offence four types of conduct which clearly involve attacks on the victim in disregard of his or her sexual autonomy. But there may be other ways in which a person can be subject to a sexual attack. One possible example is where A urinates on B. This conduct is clearly an assault (unless B consents). It may also be an indecent assault but that characterisation would depend on the facts and the circumstances of each case. We wish to retain the possibility that someone who engages in an attack, but not of a type within the definition of sexual assault, should still be liable to be convicted of assault, and where the circumstances merit it, of indecent assault.
3.47      We recommend that:

16. The common law on assault under circumstances of indecency should remain in effect except in relation to any conduct which constitutes the statutory offence of sexual assault or another offence in the Draft Bill.

(Draft Bill, section 40(b))

Coercing sexual conduct

3.48      In the Discussion Paper we explored a situation, which though not necessarily involving sexual assault as such, dealt with conduct which is broadly similar. In cases of sexual assault the victim has some form of contact with the offender without the consent of the victim. A different scenario is where the offender compels the victim to engage in sexual activity which may, but need not, involve contact with the offender. There is a wide variety of ways in which this sort of conduct could occur. For example, the offender could compel the victim to have sex with a third party or to have sexual contact with an animal or an object or with herself. In our view in all of these situations the victim does not choose to engage in the sexual activity in question and therefore suffers a major infringement of her sexual autonomy.
3.49      We pointed out that it was not clear how the current law deals with coerced sexual conduct, but we noted that English law contained an offence which specifically covers this situation.^[36] We proposed that there should be a similar offence in Scots law. This proposal attracted overwhelming support from consultees, though one consultee was concerned that there might be a large degree of overlap with other offences.^[37] We accept that however the offence was defined there would be overlap with sexual assault in cases where the compelled conduct involved contact between the offender and the victim but in our view conduct which amounted to rape and sexual assault would be prosecuted as such. The merit of the proposed offence of coercion is that it would capture many other types of sexual conduct to which the victim did not consent.
3.50      One such type of conduct is so-called 'female rape', that is where a woman compels a man to have penetrative intercourse with her without his consent. Our proposed definition of rape restricts the commission of offence to a person who has a penis. Where a woman compels a man to penetrate her, although there is intercourse obtained without consent, it is not the victim's body which has been penetrated. This is undoubtedly a violation of the victim's physical integrity and sexual autonomy, but it is questionable whether it can properly be described as 'rape'. The wrong in this situation is that a person has been compelled into taking active steps to engage in sexual activity without his consent. This is a different type of violation from the victim's own body being penetrated and should not be classified as rape but as coerced sexual conduct.
3.51      We recommend that:

17. It should be an offence for a person to cause another person, without that person's consent, to participate in any sexual activity.

(Draft Bill, section 3)

3.52      The rules on consent (including mens rea as to consent) apply to this offence. In determining whether an activity is sexual in nature the same approach is used as that discussed earlier in respect of sexual assaults (namely that sexual is what a reasonable person would consider to be sexual).
3.53      There are two further aspects of the offence which should be noted. The first is that it is defined in terms of A causing B to participate in a sexual activity. The term cause is not defined but we would expect that it would be understood in the sense of proximate cause. For example, it would not be coerced sexual activity where B entered into prostitution as a result of the failure of A (her husband) to aliment her.
3.54      The second matter concerns the possible criminal liability of the person who is being coerced. For example where A forces B to have sexual intercourse with an equally unwilling C, A has clearly committed the offence of sexual coercion against B (and also against C). But in this situation B has committed the actus reus, and also has the mens rea, of rape against C. B's only defence would be that of coercion but that defence is at present strictly defined and may not apply in all instances of forced sexual conduct.^[38] However, we do not consider that in this scenario B would be subject to criminal prosecution. In addition we will be examining the defence of coercion in a forthcoming project on criminal defences and we consider that reform of the defence should be considered as part of that project rather than being dealt with in the context of the law relating to sexual offences.^[39]

Other forms of coercive sexual conduct

3.55      One further point emerged from our consideration of what amounts to 'participating' in sexual activity for purposes of this offence. In particular we were concerned with the possibility that this term would not cover cases where one person caused another to watch sexual activity without his or her consent. We did not raise this issue in the Discussion Paper nor was it mentioned by any of our consultees. However, we are of the view that just as being forced to participate in sexual activity is an invasion of a person's sexual autonomy so is being forced to watch such activity.
3.56      We were also influenced by our thinking on offences against children. Under the common law there are various forms of conduct against children under the age of puberty which fall within the crime of lewd, indecent or libidinous behaviour. In addition to making criminal the forcing of a child to watch sexual activity this offence also penalises engaging in indecent communications with a child.^[40] In Part 4 we consider how to transform this common law crime into statutory offences against children. We now take the view that there should be corresponding offences covering these forms of behaviour against people of any age where the victim has not consented to the conduct in question.
3.57      However, there is an important distinction between the three offences we have already recommended (rape, sexual assault, and sexual coercion) and the coercive offences we are currently discussing. With rape, sexual assault, and sexual coercion the victim is actively involved in sexual activity without his or her consent. In contrast, where someone is compelled to watch sexual activity or receiving indecent communications without consent the victim's role is passive. In these circumstances it is not clear that a sexual wrong is always involved in the activity in question. For example, where a married couple have sexual intercourse in a room which they share with their very young child, it hardly seems right to say that the child has been coerced into watching sexual activity, at least for the purposes of the criminal law. Similarly, where a parent or a teacher shows a child sexually explicit material in a biology lesson or as part of a sex education course, it is not obvious that criminal liability must ensue. In other words, there has to be some limit to the scope of these offences.
3.58      For the common law crime of lewd, indecent or libidinous conduct this limit is achieved by the requirement that the tendency of the conduct must be to corrupt the innocence of the child victim.^[41] However, this requirement is not appropriate where the victim is an adult. We note that in English law offences on the lines we are proposing state that the accused's purpose was to obtain sexual gratification from his conduct.^[42] While we believe that such a provision is useful it does not by itself catch all forms of wrongful conduct. For example, a man could force a woman to watch a sexual act, not for the purpose of his obtaining sexual gratification but rather in order to distress or humiliate the woman. Accordingly, we recommend that for the coercive offences involving the victim watching sexual activity or receiving indecent communications there should be a requirement that the accused acted for the purpose of obtaining sexual gratification or of humiliating, distressing or alarming the victim.
3.59      We consider first the offence involving someone being compelled to watch sexual activity. A distinction can be made between two situations: one is where A forces B to watch 'live' sexual activity involving any person or persons other than B. The other is where B is forced to watch sexual images, rather than direct sexual activity. In this case the images can be of anyone, including B himself or herself. However, the images may be of sexual activity which is taking place at the same time as B is watching it (eg through a webcam).
3.60      We do not consider that in the case of the first type the Crown should have to prove that B actually looked at the activities. It should be enough for the Crown to show that B was present and could have seen the act. In connection with the second of these offences, the coerced viewing of sexual images, we are aware of a possible problem that images of sexual activity may not depict any actual person but rather computer-created images of people. To avoid any such loophole we recommend that image of a person is defined to include image of an imaginary person.^[43]
3.61      We recommend that:

18. It should be an offence for a person, acting for the purpose of obtaining sexual gratification or of humiliating, distressing or alarming another person, to cause that person, without his or her consent, to be present during a sexual activity.

(Draft Bill, section 4)

19. It should be an offence for a person, acting for the purpose of obtaining sexual gratification or of humiliating, distressing or alarming another person, to cause that person, without his or her consent, to look at an image of a sexual activity.

(Draft Bill, section 5)

3.62      We now consider conduct in the form of making indecent communications with someone without his or her consent. As with the coerced watching of sexual activity, the consequence is that the victim is involved in an invasion of his or her sexual autonomy. We therefore recommend that it should be an offence to make a communication which is sexual in nature to a person without that person's consent. The test for determining whether or not a communication is of a sexual nature is that of what a reasonable person would regard as sexual. The communication may be written or oral (and includes the use of sign language) and can be made by any means (for example by telephone, text messages). It should also be an offence where a sexual communication is made with a third party but the accused intentionally causes the communication to be seen or heard by the victim (for example, where A has an indecent conversation by telephone with C but knows that B can hear what he is saying). As with the offences of coercing a person to be present during sexual activity or of looking at an image of sexual activity, this offence would require that the accused acted for the purpose of obtaining sexual gratification or of humiliating, distressing or alarming the victim.
3.63      Accordingly we recommend that:

20. It should be an offence for a person, acting for the purpose of obtaining sexual gratification or of humiliating, distressing or alarming another person:

(a) to make a sexual communication with that person, without his or her consent, or

(b) to cause that person, without his or her consent, to see or hear a sexual communication made to someone else.

(Draft Bill, section 6)

Administering stupefying substance for sexual purpose

3.64      One way in which someone may find herself having sex without her consent is where she had previously been given a stupefying substance. Where A administers a drug of this nature to B and then A has sex with B when B loses consciousness, A will have committed rape or sexual assault on B. But we consider that there should be provision which makes the administering of the substance in itself criminal. There would be value in having such an additional offence in that it marks out the conduct as intrinsically wrong. It also has the effect of imposing criminal liability where there is no resulting sexual contact.^[44] An offence of this nature exists in the present law,^[45] and also in English law.^[46]
3.65      The key element of the offence is that the victim is given the substance without her knowledge. This requirement would be satisfied where, for example, B asks A for a glass of orange juice to which A adds alcohol or another drug. It is less clear whether B lacks knowledge of the presence of a substance where she is given something in a greater strength or greater quantity than she expects (for example, where B asks for orange juice and vodka but is given an orange juice with a triple measure of vodka). We consider that the law should make clear that in such situations the victim lacks knowledge of what she is consuming. We also consider that the mens rea for this offence should be that the accused lacked reasonable belief that the victim knew about the administration or taking of the substance. The test for what constitutes reasonable belief should be the same as that for reasonable belief as to consent in the offences based on lack of the victim's consent.^[47]
3.66      We recommend that:

21. It should be an offence for a person to administer a substance to, or cause a substance to be taken by, another person without that person's knowledge where the purpose is to stupefy or overpower that person so as to enable having sexual activity with him or her.

(Draft Bill, section 8)

Mens rea

3.67      There are two aspects of mens rea to be considered in respect of the offences of rape, sexual assault, and coercion (and related offences). These parallel the two constituent parts of the actus reus of those offences. The first is the act or conduct which defines the specific offence, such as penile penetration, touching, causing, etc. The second is that this conduct occurs without the consent of the victim. The accused must have the requisite mens rea for each of these parts of the offence in question.

Mens rea as to the act

3.68      Each offence identifies the required mens rea as to the type of conduct at its core. In general terms the mens rea is intention or recklessness. For example, the definition of rape requires that the accused intended penile penetration, or was reckless as to penetration, of the victim's vagina, anus or mouth. Similarly, sexual coercion requires proof that the accused intentionally caused B to participate in sexual activity. Neither intention nor recklessness is defined in the Act but will carry their normal meaning in the criminal law.^[48] Other offences require that the act is done intentionally and also that it is done for a particular purpose or goal. For example, the mens rea of engaging indecently in sexual activity is that A intentionally engages in a sexual activity but does so for the purpose of obtaining sexual gratification by means of B being present.^[49]

Mens rea as to consent

3.69      For some of the offences which we are proposing there is a second matter for which mens rea is required, namely that the victim did not consent to the act in question. Clearly there is mens rea where it can be shown that the accused knew that the victim did not consent to what the accused was doing to him or her. A more difficult issue is where the accused did not actually know of the lack of consent by the victim but was reckless as to this state of affairs. In the Discussion Paper we set out three possible approaches to this issue.
3.70      The first option was the subjective test. On this approach, which probably represents the present law,^[50] an accused lacks mens rea where he genuinely believed that the victim was consenting, even if his reasons for this belief were not reasonable.
3.71      The main argument of principle in support of the subjective test for belief in consent is that any person who genuinely makes a mistake about some central feature of a crime cannot be said to have a guilty mind for that crime. A person in this situation stands in contrast with someone who, knowing that the victim is not consenting, proceeds with a sexual attack, or does so not caring about the consent of the victim. A related consideration is the fairness of judging a person's actions by some external criteria. There may well be understandable reasons, for example based on the accused's cultural background or learning difficulties, why that particular person made a mistake about interpreting the behaviour of another person, especially in the context of sexual interaction where there are complexities in 'reading the signs'. Judging such a person by objective criteria and attaching guilt to him might be to punish someone for his cultural difference or for his stupidity or lack of education.
3.72      Many arguments have been advanced against the honest though unreasonable test. Fundamentally it has the effect that there is no rape even where a woman has indicated that she did not consent to sexual intercourse. As such, the test undermines respect for sexual autonomy. Moreover, allowing unreasonable belief about consent as a defence bolsters the legitimacy of myths and stereotypes about women and sexual choice. Further, the test sits uneasily with the general law of error in the criminal law, by which an error by the accused as to some essential element of a crime must be reasonable to elide mens rea.
3.73      The second option is an objective test. On this approach an accused has mens rea where he was reckless as to whether the victim consented, and recklessness is understood (as it usually is in Scots law) in an objective sense. Many of the strengths of the objective approach correspond to the weaknesses of the subjective approach (and vice versa). The objective approach would impute mens rea where the reasons for an accused's honest belief as to consent are objectionable or bizarre (for example, where an accused considers himself so sexually attractive that no woman could ever resist his charms). However, there are problems in using the objective standard of the reasonable person in the criminal law. Generally speaking the criminal law tries to avoid convicting a person for purely negligent behaviour (that is, acting or failing to act as a reasonable person would). For that reason, the criminal law at times imputes to the reasonable person certain of the accused's own general characteristics (for example, his age, level of educational development, and so on). A problem about using the reasonable person standard in the abstract is that it is unclear what, if any, attributes the reasonable person is deemed to possess.
3.74      In the Discussion Paper we set out a third option which we referred to as a mixed test, that is it combined aspects of the other two tests. We did not describe this option in much detail but we gave the example of the test used in English law. Section 1 of the Sexual Offences Act 2003 provides for the mental element of the offence first by requiring that the accused has intentionally penetrated the victim and that he did not reasonably believe that the victim was consenting. It further provides that whether "a belief is reasonable is to be determined having regard to all the circumstances, including any steps [the accused] has taken to ascertain whether [the victim] consents." ^[51]
3.75      There was some support for the subjective test among consultees but little was said by way of substantive reasons in favour of it.^[52] Most consultees opposed this test. The subjective test gives rise to many anomalies and possible injustices from the perspective of social and legal policy. It is also out of step with the general approach of Scots law towards mens rea. We do not favour the subjective test as providing the proper basis of mens rea as to belief in consent.
3.76      Both the objective test and the mixed test attracted support from consultees. Having considered the issues in the light of points raised during consultation we are not inclined to recommend the application of the objective test. We consider that a test which assesses the accused's belief solely in terms of what a reasonable person would have believed or whether there were reasonable grounds for a belief moves attention too far from the actual accused. Rather, there should be a test which while avoiding a totally subjective approach still directs its focus on the accused. In other words we favour a mixed test.
3.77      The question then is what should such a mixed test state. Many of our consultees favoured the example we gave in the Discussion Paper which was based on English law. However, we have become aware of criticism of the way in which that test is drafted.^[53] In particular the phrase "having regard to all circumstances" as used in the 2003 Act may allow for the inclusion of all the attributes of the accused to be used in assessing the reasonableness of the belief. In other words, the test becomes: given the accused's attributes, including his belief systems, was his belief as to consent reasonable? But this approach does not significantly differ from the subjective test of 'honest' belief. We therefore favour omitting from the proposed definition of mens rea any reference to 'all the circumstances'. Instead the provision should state that in assessing reasonableness of a belief as to consent regard is to be had of the steps, if any, taken by the accused in finding out whether the other party consented. This test is objective in nature in insisting that a belief must be reasonable but it is also mixed in the sense that it directs attention to the steps which the actual accused (and not a hypothetical reasonable person) took, or failed to take, to ascertain whether there was consent. We consider that a virtue of this test, by making reference to the accused taking steps to ascertain the other party's consent, is that it articulates and reinforces the point that the law is using a positive, co-operative model of consent.
3.78      We recommend that:

22. For any offence which requires that the accused lacked reasonable belief that another person consented, in assessing what was reasonable regard is to be had to the steps, if any, which the accused took to ascertain whether there was consent.

(Draft Bill, section 12)

Medical exemption

3.79      In the Discussion Paper we noted that many forms of medical intervention involve the (non-penile) penetration and touching of a person's genitalia or other parts of the body. We were concerned that acts carried out for sound medical reasons could attract criminal liability and we proposed that the offence of sexual assault should not apply to any act done reasonably and in good faith for medical reasons. Most consultees agreed with this proposal. Some, however, questioned whether it was necessary and we now consider that that view is correct. A medical intervention done for proper medical reasons would not be regarded as forming a sexual act,^[54] and so no criminal liability would attach to it as a matter of the definition of the relevant offences. Accordingly we make no recommendations for the inclusion of any provision in the Draft Bill for the exemption from criminal liability of medical acts.

Note 1   In this Part when we refer to consent or the lack of it we have in mind the consent model considered in Part 2.    [Back]

Note 2   Grainger v HM Advocate 2005 SCCR 175, 179 (Lord Justice Clerk Gill).    [Back]

Note 3   "A savage sexual attack, involving the infliction of severe injury in circumstances of indecency is an example of serious indecent assault; at the other end of the spectrum, an uninvited sexual fondling in a bus queue exemplifies a less serious, but definite assault of an indecent nature." (Stair Memorial Encyclopaedia, vol 7, para 305).    [Back]

Note 4   See, for example, Stewart v Thain 1981 JC 13, 17: "Each case must be considered in the light of the whole circumstances relevant to it."    [Back]

Note 5   Gordon, vol II, pp 399-401, who states that the most important ways in which assault may be aggravated are (1) by the weapon used; (2) by the injury caused; (3) by the place of the assault; and (4) by the character of the victim.    [Back]

Note 6   See paras 1.25-1.27.    [Back]

Note 7   A study of the experience of victims in New Zealand threw doubt on the value of the approach of reclassifying sexual assault within the general law of assault. It noted that: "Victims who had been beaten felt that the act of sexual intercourse rather than the assault was the primary injury. ... Any legislation highlighting the violent component of the offence at the expense of the sexual violation involved would therefore seem to be at odds with the perception of many victims." (Warren Young, Rape Study (1983), p 109, cited in Setting the Boundaries Appendix D1, p 129).     [Back]

Note 8   Indecent assault is mentioned as a type of 'sexual offence' in the Criminal Procedure (Scotland) Act 1995, s 288C (which is headed "Prohibition of personal conduct of defence in cases of certain sexual offences"). Indecent assault also appears in Schedule 3 to the Sexual Offences Act 2003, which contains a list of "Sexual offences for purposes of Part 2". (Part 2 of the 2003 Act deals with notification requirements (the so-called sex offenders register).)     [Back]

Note 9   One consultee who disagreed argued that sexual assault should be a generic offence but that it should contain subcategories.    [Back]

Note 10   Temkin, pp 177-178.    [Back]

Note 11   "The main argument for retention regardless of the form and substance of the law is that the term 'rape' is synonymous in our culture with a particularly heinous form of behaviour." (Law Reform Commission of Victoria, Discussion Paper on Rape and Allied Offences: Substantive Aspects (LRCV No 2 (1986)), p 51.)    [Back]

Note 12   We also considered that there should be a further offence which would not necessarily involve a form of assault, namely that of compelling or coercing another person to engage in any sexual activity without that person's consent. For discussion of this recommendation see paras 3.48-3.54.    [Back]

Note 13   One consultee suggested rape should cover only penile penetration of the vagina. Another consultee suggested that it should mean penetration of the vagina or mouth with any object. Some consultees wanted a wider definition of rape than that proposed in the Discussion Paper. One argued that it should cover all forms of penetration with any body part or object. Another consultee, who did not accept the penetration/non-penetration distinction, suggested that rape should include any act which usurps or traduces the sexual freedom of another person. Two consultees argued that our proposal would make the offence gender specific.     [Back]

Note 14   Only a very small number of consultees who responded to our recommendation opposed it. The main point of opposition was that this form of assault should be included in the definition of rape.     [Back]

Note 15   Three consultees suggested that the offence should extend to penetration of the mouth.     [Back]

Note 16   Criminal Justice and Public Order Act 1994, s 142 (repealed by the Sexual Offences Act 2003, Sch 7, para 1).    [Back]

Note 17   2003 Act, s 1(1), where the actus reus of rape is defined in the following way: "A person (A) commits an offence if (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, [and] (b) B does not consent to the penetration." A similar definition was proposed for Scots law in the Draft Criminal Code. See sections 60 and 61, which define rape as sexual intercourse with a person without that person's consent and sexual intercourse means "penetration of the genitalia, anus or mouth by the penis."     [Back]

Note 18   Setting the Boundaries, para 2.8.4.    [Back]

Note 19   Draft Criminal Code, p 123 (comment on section 61(rape)).    [Back]

Note 20   In discussing these provisions of the Draft Bill we adopt the usage in the Bill of referring to the perpetrator as A and the victim as B.    [Back]

Note 21   The Draft Bill makes clear that the term vagina includes the vulva (s 1(4)). A similar provision is to be found in English law (Sexual Offences Act 2003, s 79(9)).    [Back]

Note 22   A further consequence is that it is impossible for a woman to rape a man, if the term woman is defined as to include a person who does not have a penis. We discuss this scenario in the context of the proposed offence of sexual coercion. See para 3.50.    [Back]

Note 23   Gender Recognition Act 2004, s 4. Section 20 of the Act deals with the effect of a gender recognition certificate in relation to offences which are gender-specific.    [Back]

Note 24   See para 7.12.    [Back]

Note 25   See paras 7.14-7.16.    [Back]

Note 26   See paras 7.2-7.6.    [Back]

Note 27   The leading authority is Charles Sweeney (1858) 3 Irvine 109. Under the law at that time the conduct could not be classified rape as it did not involve the use of force against the victim.    [Back]

Note 28   2002 SLT 466.    [Back]

Note 29   HM Advocate v Shearer 2003 SLT 1354. However, in Spendiff v HM Advocate 2005 SCCR 522 (at 525F) the Court noted that clandestine injury was still a competent charge.    [Back]

Note 30   See paras 7.12.    [Back]

Note 31   However, we do recommend that although rape and sexual assault are to be separate offences there should be a degree of overlap in their respective definitions. See para 3.45 below.    [Back]

Note 32   Thus it is an assault to point a weapon at someone.    [Back]

Note 33   This issue does not apply in respect of sexual assault by way of ejaculating semen, as this is obviously sexual in nature.    [Back]

Note 34   This is the so-called sex offenders register. Schedule 3 to the Sexual Offences Act 2003 lists the offences which can trigger the notification procedure. The list includes a residual category: "An offence in Scotland other than is mentioned in paragraphs 36 to 59C if the court, in imposing sentence or otherwise disposing of the case, determines for the purpose of this paragraph that there was a significant sexual aspect to the offender's behaviour in committing the offence." (Para 60.)     [Back]

Note 35   See para 3.32.    [Back]

Note 36   Section 4 of the 2003 Act creates the offence of 'causing a person to engage in sexual activity without consent'.    [Back]

Note 37   No consultee opposed making this activity criminal though one consultee favoured including it within a widely defined offence of rape.    [Back]

Note 38   The defence requires that the threat is of death or great bodily harm but lesser threats, or indeed no threats at all, may result in a lack of free agreement in terms of the consent model discussed in Part 2. For discussion of the defence of coercion see James Chalmers and Fiona Leverick, Criminal Defences and Pleas in Bar of Trial (2006), ch 5.     [Back]

Note 39   This project forms part of our Seventh Programme of Law Reform. See Scot Law Com No 198 (2005), paras 2.46-2.50.    [Back]

Note 40   Webster v Dominick 2005 1 JC 65 at 79 (para 49) (Lord Justice Clerk Gill).    [Back]

Note 41   Ibid.    [Back]

Note 42   Sexual Offences Act 2003, s 11 (engaging in sexual activity in the presence of a child); s 12 (causing a child to watch a sexual act). It is to be noted that in English law there is no equivalent provisions in respect of (non-consenting) adult victims.     [Back]

Note 43   This approach is adopted in English law (Sexual Offences Act 2003, s 79(5)).    [Back]

Note 44   A charge of attempted rape or attempted sexual assault might not be possible if A had not taken steps to carry out the sexual attack.     [Back]

Note 45   Criminal Law (Consolidation) (Scotland) Act 1995, s 7(2)(c) which imposes liability on any person who "applies or administers to, or causes to be taken by, any woman or girl any drug, matter or thing, with intent to stupefy or overpower so as thereby to enable any person to have unlawful sexual intercourse with such woman or girl."    [Back]

Note 46   Sexual Offences Act 2003, s 61.    [Back]

Note 47   See paras 3.69-3.78.    [Back]

Note 48   See SME Reissue, Criminal Law (2005), para 77 ('Intentionally'): "Intention is perhaps the best known and most widely distributed of the mental elements found in Scottish practice. It is the antithesis of 'accident' or 'carelessness' and is probably (but sometimes none too clearly) differentiated from 'recklessness'. It suggests 'design' or purpose and is found in the definition of many crimes." Scottish courts have tended to give a wide range of description of recklessness rather then a single definition (ibid, para 81). In Scots law mental elements forming mens rea are understood in an objective rather than a subjective sense.    [Back]

Note 49   A more complicated example is sexual exposure. Here A must expose his genitals intentionally. The effect must be causing alarm and distress but A can either intend or be reckless as to this effect.     [Back]

Note 50   Jamieson v HM Advocate 1994 JC 88. In the Discussion Paper we noted that although most commentators treat the rule as firmly established by this decision its exact status is far from clear. The only trace of this rule in Scots law is to be found in obiter remarks in Meek v HM Advocate 1983 SLT 280 at 281. The more direct statements by the Court in Jamieson proceeded on the basis of a concession by the Crown that the comments in Meek were sound.    [Back]

Note 51   Similar definitions are given for assault by penetration (s 2) and sexual assault (s 3).    [Back]

Note 52   The option which found most favour among consultees was the mixed test, followed by the objective test, followed by the subjective test. One consultee favoured either the objective or the mixed test and another found none of the options satisfactory.     [Back]

Note 53   See for example Andrew Ashworth, Principles of Criminal Law (5th edn, 2006), p 352; AP Simester and GR Sulivan, Criminal Law. Theory and Doctrine (2nd edn, revised 2004), pp 414-415.     [Back]

Note 54   We propose that the test for whether an element of an assault is sexual in nature is whether a reasonable person would consider it to be sexual. See paras 3.42-3.44.    [Back]