Scottish Law Commission (Reports)

Part 5 Offences based on public morality

Introduction

5.1      In this Part we examine various offences which, historically at least, are based or thought to be based on a principle of public morality other than the consent principle and the protective principle. In the Discussion Paper the offences which we considered under this heading were:

(1) homosexual offences;

(2) incest;

(3) public indecency;

(4) sado-masochistic practices;

(5) bestiality and necrophilia.

Matters on which we make no recommendations for reform

5.2      In the light of the responses received during consultation we have decided not to make any recommendations for reform in relation to two of these offences.

Incest

5.3      In the Discussion Paper we asked whether, given the scope of the law (both current and that proposed elsewhere in the Discussion Paper) on offences based on the lack of consent by the victim and offences based on the protective principle, there should continue to be a separate offence of incest. Although some consultees considered that there was no need for a separate offence and others were unsure, the majority favoured retaining the offence. However, there was no suggestion from those consultees that the current definition of incest should be expanded. Accordingly we make no proposal for any change to the existing law in relation to the offence of incest.

Bestiality

5.4      In the Discussion Paper we also proposed that the offence of bestiality should be reformulated so that sexual activity with an animal would attract criminal liability only where it was a form of public indecency or of cruelty to animals. The majority of consultees disagreed with this proposal but none argued that the current law should be altered in any way. Again, we make no proposal for change to the law on bestiality.

Homosexual offences

5.5      Offences relating to homosexual conduct are regulated by the common law and by statute. The main common law crime is the prohibition of acts of sodomy between two males. This crime applies to both participants, and the fact that the parties consented is irrelevant. A significant development of the law on homosexual conduct was section 11 of the Criminal Law Amendment Act 1885, which rendered criminal acts of gross indecency between two or more men. A major change to the law was brought about by section 80 of the Criminal Justice (Scotland) Act 1980, which now appears as section 13 of the Criminal Law (Consolidation) (Scotland) Act 1995. Section 13 contains two main provisions:

"(1) Subject to the provisions of this section, a homosexual act^[1] in private shall not be an offence provided that the parties consent thereto and have attained the age of sixteen years.

(5) Subject to subsection (3) above,^[2] it shall be an offence to commit or to be a party to the commission of, or to procure or attempt to procure the commission of a homosexual act –

(a) otherwise than in private;

(b) without the consent of the parties to the act; or

(c) with a person under the age of sixteen years."

5.6      Despite the wording of these provisions, it is generally assumed that the common law offence of sodomy still exists.^[3] The 1885 Act offence of gross indecency between males was abolished by the 1980 Act, though it is likely that the interpretation of 'gross indecency' as used in section 13 of the 1995 Act will draw on cases decided in relation to the earlier statutory offence.^[4]
5.7      It should be noted that both at common law and under statute there have been no offences which specifically make female homosexual conduct criminal.^[5]
5.8      In the Discussion Paper we stated our view that there is no need for any offence which deals with homosexual conduct. Where homosexual conduct involves the lack of consent of one of the parties, it would fall within the scope of such offences as rape, sexual assault and sexual coercion. Offences which fall within the scope of the protective principle, such as sexual activity with children under 13 and with children under 16, or abuse of trust within family units, or sexual activity involving a position of trust, all apply to homosexual sexual activity.
5.9      We also considered that it is wrong in principle that offences should be based on sexual orientation rather than on forms of wrong. We therefore proposed that all existing offences which relate to homosexual conduct should be removed. For the avoidance of doubt, this would include the abolition of any existing common law crimes. The statutory offences are contained in section 13 of the 1995 Act. However, two of the offences in this section, namely those relating to procuring and trading in prostitution and brothel keeping, deal with matters beyond the scope of this project and should be retained.^[6]
5.10      There was virtually unanimous agreement to these proposals among consultees.^[7] We recommend that:

1. Any existing common law offence relating to homosexual conduct should be abolished.

(Draft Bill, section 40(a))

2. (Except for the provisions relating to procuring and related offences), section 13 of the Criminal Law (Consolidation) (Scotland) Act 1995 should be repealed.

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

Public indecency and sexual exposure

5.11      Prior to the decision of the High Court of Justiciary in Webster v Dominick,^[8] various types of sexual practice were characterised as 'shameless indecency' and prosecuted as such. In that case the Court held that there was no offence of shameless indecency. Rather, there are two separate types of offence involving indecent conduct. One is where the conduct is aimed at a specific victim; the other where the conduct causes public offence. As regards the second of these offences the Court emphasised that the crime was a public order offence and although it might involve sexual activity, the essence of the offence is that the conduct affronts public sensibility. As the offence of public indecency is not, as such, a sexual offence, we do not propose to make recommendations in relation to it.^[9]
5.12      Prior to Webster v Dominick various types of sexual conduct had been treated as shamelessly indecent and therefore criminal. One was (consenting) sexual conduct between family members which did not fall within the scope of the law on incest.^[10] In Part 4 we have made recommendations for an offence of sexual activity involving abuse of trust within a family unit which would deal with this type of conduct.^[11] In Webster v Dominick the Court pointed out that instances of indecent conduct directed against a specific victim, formerly categorised as shameless indecency, would tend to fall within the scope of some other offence, including lewd, indecent or libidinous conduct. We have also recommended the introduction of several offences to replace that crime.^[12]
5.13      Our view is that these proposals cover most of the situations in which 'indecent' sexual conduct, as opposed to public order conduct, should attract criminal liability. However, there is one situation which we believe requires further consideration. This is indecent exposure. The exposure of a sexual organ can occur both as conduct directed toward a specific victim and as a public order offence (such as nude sunbathing or streaking). The offence of public indecency would deal with the second but it is unclear what offence applies to the first.^[13] In the Discussion Paper we took the view that indecent exposure was in many ways similar to a sexual assault. It is a form of sexual attack but without any direct physical contact. We also took note of research which indicated that indecent exposure aimed at specific victims is not experienced as a minor nuisance or as trivial in nature.^[14]
5.14      We proposed that it should be an offence for someone to expose his or her genitals with the purpose of causing alarm and distress. There was broad agreement with this proposal among consultees. One consultee argued that the existing law of breach of the peace was sufficient to deal with this conduct. However, our view is that sexual exposure is a specific type of wrong and should be labelled as such. A number of consultees argued that there should be criminal liability only where the accused acted for the purpose of obtaining sexual gratification. We do not agree. Such a restriction would exclude cases where the accused's purpose in exposing his genitals was to demean or humiliate the victim.
5.15      We are concerned, however, that the offence should be treated as a sexual offence and not as one relating to public order or public decency (as where a man exposes his penis in a public place in order to urinate). We are therefore of the view that for purposes of the offence the exposure should itself be sexual in nature and that the test for what counts as sexual should be the same as that used throughout the Bill, namely what the reasonable person would regard as sexual.
5.16      Accordingly we recommend that:

3. It should be an offence for a person to expose his or her genitals in a sexual manner with the intention of causing alarm or distress to someone else or being reckless as to causing these effects.

(Draft Bill, section 7(1), (2))

5.17      A possible concern about the scope of this provision is that it might extend to body exposure done in the course of a theatrical performance. Some instances of exposure in the course of a play might escape liability by virtue of the requirement that the exposure must be sexual in nature or that there must be intention or recklessness as to causing alarm or distress. But not all would. We have noted the provisions of the Theatres Act 1968 which sets out a general policy that actors are exempt from prosecution for common law offences of indecency if what they did was in the course of a performance of a play and conformed to the directions of the director of the play.^[15] The same policy has been expressed in various statutes.^[16] We are of the view that this policy should apply in respect of the proposed offence of sexual exposure.
5.18      We therefore recommend that:

4. It should be a defence to a charge of sexual exposure that the accused's actings were done in the performance of a play and conformed to the directions of the presenter or director of the play.

(Draft Bill, section 7(3), (4))

Sado-masochistic practices

5.19      One of the guiding principles for this project is the idea that sexual practices involving consent should not, unless there are weighty overriding reasons, be subject to legal sanction.^[17] Difficult issues arise when applying this general principle to sexual activities which consist of the infliction or receipt of acts of violence (usually referred to as sado-masochistic practices). In general terms the Scots law of assault treats the consent of the victim as irrelevant. The essence of the crime is that the accused attacked another person with an 'evil' intent, such as to cause injury or bodily harm. In some situations, for example contact sports played according to the rules of the game, such evil intent is said to be absent. In addition, indecent assaults require the lack of consent by the victim. In Smart v HM Advocate,^[18] it was held that 'sexual touchings' did not constitute an offence where the victim consented. However, it is not clear whether the consent of the victim is relevant where the assault involves a more serious invasion of the victim's body. In English law it has been held that consent to participating in sado-masochistic practices was not a defence to charges involving the infliction of serious bodily harm,^[19] but may be to lesser types of assault.^[20]
5.20      We must stress that our current terms of reference are not concerned with general issues about consent in the law of assault. However, we do consider that conduct done for purposes of sexual gratification does fall within the scope of this project. It is true that most analysis of sado-masochistic practices is made in the context of the general crime of assault rather than as part of the law on sexual offences. This approach has the consequence that principles appropriate to reform of sexual offences, such as respect for sexual autonomy and decisions based on the free choice of the parties, get lost sight of. For those reasons we argued in the Discussion Paper that a better perspective is to locate these practices as a form of sexual conduct and to ask whether there are any appropriate limiting factors on the exercise of sexual autonomy where assault on other persons is involved.^[21] We stressed that the situation under consideration is where there is genuine consent given by all the parties to the specific activities in question. In the Discussion Paper we proposed that the offence of assault should not be constituted by any activity to which all of the parties have given their consent for purposes of sexual gratification.
5.21      Furthermore we accepted that this exemption from the offence of assault could not apply to all forms of violent conduct. Clearly conduct which was intended to cause death should not escape criminal liability. Accordingly in the Discussion Paper we asked whether the proposed exemption should apply to conduct which resulted in serious injury or was likely to result in serious injury.
5.22      The proposal to allow an exemption for acts done for the purpose of sexual gratification from liability from assault received overwhelming support from consultees, though some thought that the existing law already achieved this result. By contrast there was a divergence of views as to the limits to any exemption. Some consultees would allow the exemption from assault to apply where there was a risk of serious injury provided that the parties had expressly agreed to this risk. Others proposed a wider scope for the proposed exemption, namely that a charge of assault should be available only if the activities resulted in permanent or disabling injury.
5.23      We have without any hesitation reached the conclusion that there should be an exemption from the law of assault for activities to which all parties have given their consent for purposes of sexual gratification. This position seems to reflect current understanding but we are of the view that the matter should be expressly stated in law to remove any doubt. However, we accept that there must be limits to this exemption. This is ultimately a question of social policy. A balance has to be struck between the protection of a person's physical integrity and the promotion of sexual autonomy. We believe that that balance is best achieved by the requirement that a violent act done with consent and for the purpose of providing sexual gratification is not a crime if it is unlikely to result in serious injury to the person on whom the violence is inflicted. The exemption should apply where an attack does in fact lead to serious injury but that outcome was unlikely; conversely, there would be no exemption where the parties took the risk of an attack which might leading to serious injury, even though in the event no such injury occurred. The question whether a particular attack was likely to lead to serious injury is to be answered by applying the test of what a reasonable person would consider to be the likely outcome of an attack of that nature.
5.24      A key element in defining the exemption is that the attack must have been done for the purpose of giving sexual gratification to one or other (or both) of the parties to the act. We envisage that the exemption is to be analysed in terms of two parties, one making the attack and the other receiving it. If neither of these parties has in mind the purpose of his or her achieving sexual gratification, the exemption does not apply. Thus an attack carried out for the purpose of giving sexual gratification to a third party onlooker would not be exempt from a charge of assault unless one of the parties to the attack itself had his or her own sexual gratification as its primary purpose. In order to ensure that the purpose of providing such gratification is present it is a requirement for the exemption to apply that both parties agree that this is purpose of the attack.
5.25      The parties to the attack must give their consent to it but, as noted earlier, consent in this context does not refer to the idea used in our recommendations for reform of the law of rape and other sexual assaults but rather to the concept of consent which is used in the law of assault.
5.26      We further recommend that both parties must be aged 16 or over. We did not consult on this issue but we consider that the recommendation is consistent with the general rules about the capacity to give consent.^[22]
5.27      Accordingly we recommend that:

5. It should not be the crime of assault for one person to attack another where:

(a) both parties are 16 or older;

(b) the purpose of the attack is to provide sexual gratification to one or other (or both) of the parties, and the parties agree to that purpose;

(c) the person receiving the attack consents to its being carried out; and

(d) the attack is unlikely to result in serious injury.

(Draft Bill, section 37)

Necrophilia

5.28      It is not entirely clear what offence is committed where a person has sexual contact with a dead body.^[23] In the Discussion Paper we noted that the Draft Criminal Code contained a more general provision on unlawful interference with human remains,^[24] which would apply to any form of sexual contact with a dead body. We saw merit in the introduction of such an offence to deal with sexual contact with a dead body. Our proposal to this effect was accepted by those consultees who responded to it. As the proposed offence covers more than sexual activity, it is beyond the scope of this project.
5.29      However, we see the advantage of a general offence of this nature. We therefore recommend that:

6. Consideration should be given to the creation of an offence of unlawful interference with human remains.

Note 1   A homosexual act is defined as "sodomy or an act of gross indecency or shameless indecency by one male person with another male person" (s 13(4)). The crime of shameless indecency no longer exists as a common law offence (Webster v Dominick 2005 1 JC 65). The reference to shameless indecency did not appear in the 1980 Act. The definition used there was "sodomy or an act of gross indecency by one male person with another male person."    [Back]

Note 2   Subsection (3) concerned the nature of consent given by persons suffering from 'mental deficiency'. It was repealed by the Mental Health (Care and Treatment) (Scotland) Act 2003 (sch 5, part 1).    [Back]

Note 3   Gordon, vol II, p 519; Gane, p 123.    [Back]

Note 4   R v Hunt [1950] 2 All ER 291; R v Preece [1977] QB 370.    [Back]

Note 5   Some types of female homosexual conduct might constitute the offence of lewd, indecent or libidinous behaviour where one of the participants was under the age of 16.    [Back]

Note 6   1995 Act, s 13(9)-(11). In the Discussion Paper we proposed that those subsections should be repealed but re-stated as part of wider offences which apply to heterosexual conduct. However, as we are not considering procuring and related offences in this project our approach now is for the relevant provisions of section 13 to be retained.    [Back]

Note 7   Only one consultee expressed opposition to them.    [Back]

Note 8   2005 1 JC 65.     [Back]

Note 9   We are not to be understood as endorsing what the Court said of public indecency in Webster v Dominick. This aspect of the Court's decision has been subject to strong criticism. See, for example, J Chalmers and C Gane, "The aftermath of shameless indecency" (2003) 8 SLPQ 310; J Burchell and C Gane, "Shamelessness Scotched: The Domain of Decency after Dominick" (2004) 8 Edin L Rev 231.    [Back]

Note 10   See for example, R v HM Advocate 1988 SLT 623 (sexual activity, short of intercourse, between a man and his 16 year-old daughter); HM Advocate v K 1994 SCCR 499 (sexual intercourse between a man and his foster daughter who was over the age of 16).    [Back]

Note 11   Paras 4.110-4.120.    [Back]

Note 12   See para 4.86.    [Back]

Note 13   Gordon, vol II, p 532.    [Back]

Note 14   The Home Office Review Group stated that: "We were impressed by the evidence of research amongst victims that it can indeed be a very traumatic experience. It is not just the unpleasantness of the experience: in incidents where the exposed penis is erect or being masturbated, the effect is to induce fear, shock, disgust and a powerful fear of rape or death." (Setting the Boundaries, para 8.2.3.)    [Back]

Note 15   Theatres Act 1968, s 2 (as read with s 18).     [Back]

Note 16   See eg Indecent Displays (Control) Act 1981 which exempts from the Act anything included in a performance of a play (s 1(4)(d)). The offence of displaying obscene material in a public place under the Civic Government (Scotland) Act 1982, s 51 does not apply to anything included in a performance of a play.    [Back]

Note 17   See paras 1.25-1.27.    [Back]

Note 18   1975 JC 30 at 33.     [Back]

Note 19   R v Brown [1994] 1 AC 212, a decision of the House of Lords by a 3-2 majority. The activities of the accused in this case consisted of maltreatment of the genitalia, ritualistic beatings, branding and the infliction of injuries which resulted in the flow of blood and which left scars. All of the acts were consensual, and were conducted in private and for pleasure. In a sequel case of Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39, the European Court of Human Rights held that the prohibition of the activities of the appellants did not infringe article 8 of the ECHR (right to respect for private life).     [Back]

Note 20   See, for example, R v Wilson [1997] QB 47 where a man was acquitted on a charge of assault causing actual bodily harm where, at his wife's request, he had used a hot knife to brand his initials on her buttocks. The Court of Appeal expressly stated that there was no requirement of public policy or public interest in attaching criminal liability to the accused's conduct.     [Back]

Note 21   The characterisation of sado-masochistic practices as sexual rather than violent in nature is discussed in L Bibbings and P Alldridge, "Sexual Expression, Body Alteration, and the Defence of Consent" (1993) 20 J Law and Society 356, and N Bamforth, "Sado-Masochism and Consent" [1994] Crim LR 661.    [Back]

Note 22   In Part 7 we propose that the exemption from criminal liability should have retrospective effect. See paras 7.5-7.6.    [Back]

Note 23   In English law it is an offence for a person to sexually penetrate a corpse (Sexual Offences Act 2003, s 70).     [Back]

Note 24   Section 104: "A person who, without reasonable excuse, interferes with human remains in such a way as to be likely to cause offence to a reasonable person is guilty of the offence of unlawful interference with human remains."    [Back]