Scottish Law Commission (Reports)

Part 8 List of recommendations

1. A constituent element of the offences of rape and other sexual assaults and of offences involving coerced sexual activity should be the lack of consent by the victim.

(Paragraph 2.19; Draft Bill, sections 1(1); 2(1); 3(1); 4(1); 5(1); 6(1), (2))

2. There should be a definition of consent in respect of sexual offences which involve the lack of consent of any person.

(Paragraph 2.22; Draft Bill, sections 9-11)

3. (a) For sexual offences in which the lack of consent on the part of the victim is a part of the offence, there should be a statutory definition of consent.

(b) Consent should be defined first by means of a general description of what consent means.

(c) Secondly the statutory definition should also provide a non-exhaustive list of situations where consent does not exist.

(Paragraph 2.35; Draft Bill, sections 9 and 10)

4. Consent as a constituent element of sexual assaults be defined in general terms as 'free agreement'.

(Paragraph 2.42; Draft Bill, section 9)

5. There should be a non-exhaustive statutory list of factual situations which define when a person has not consented to sexual activity. The situations should include the following:

(a) where the person had taken or been given alcohol or other substances and as a result lacked the capacity to consent at the time of expressing or indicating consent unless consent had earlier been given to engaging in the activity in that condition;

(b) where the person was unconscious or asleep and had not earlier given consent to sexual activity in these circumstances;

(c) where the person agreed or submitted to the act because he or she was subject to violence, or the threat of violence, against him or her, or against another person;

(d) where the person agreed or submitted to the act because at the time of the act he or she was unlawfully detained by the accused;

(e) where the person agreed or submitted to the act because he or she was deceived by the accused about the nature or purpose of the activity;

(f) where the person agreed to the act because the accused impersonated someone who was known to the person;

(g) where the only expression of agreement to the act was made by someone other than the person.

(Paragraph 2.59; Draft Bill, section 10)

6. The giving of consent to one sexual act does not by itself constitute consent to a different sexual act.

(Paragraph 2.84; Draft Bill, section 11(2))

7. A person who has consented to a sexual act may at any time before or up until completion of that act indicate that he or she no longer consents, and if the act continues to take place it does so without that person's consent.

(Paragraph 2.86; Draft Bill, section 11(3),(4))

8. The provisions relating to notice of consent as a defence to a charge of a sexual offence in sections 78 and 149A of the Criminal Procedure (Scotland) Act 1995 should be repealed.

(Paragraph 2.88; Draft Bill, section 44(2); schedule 4)

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

(Paragraph 3.8; Draft Bill, sections 1-2)

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

(Paragraph 3.9; Draft Bill, sections 1-2)

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.

(Paragraph 3.29; Draft Bill, section 1)

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

(Paragraph 3.35; Draft Bill, section 40(a))

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

(Paragraph 3.35; Draft Bill, section 44(2); schedule 4)

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

(Paragraph 3.40; Draft Bill, section 2)

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.

(Paragraph 3.40; Draft Bill, section 2(1), (2))

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.

(Paragraph 3.44; Draft Bill, section 2(3))

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.

(Paragraph 3.47; Draft Bill, section 40(b))

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

(Paragraph 3.51; Draft Bill, section 3)

18. It should be an offence for a person, acting for the purpose of obtaining sexual
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.

(Paragraph 3.61; Draft Bill, section 5)

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.

(Paragraph 3.63; Draft Bill, section 6)

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.

(Paragraph 3.66; Draft Bill, section 8)

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.

(Paragraph 3.78; Draft Bill, section 12)

23. The law on sexual offences relating to children should not make any distinction in terms of the gender of the child or of the perpetrator of such offences.

(Paragraph 4.17)

24. There should be special provisions in applying the law on rape and other sexual assaults and coerced sexual activity to children who have not reached the age of 13.

(Paragraph 4.25; Draft Bill, sections 14-19)

25. The offences involving rape and other sexual assaults and coerced sexual activity which apply to children under the age of 13 are based on the legal premise that children below that age lack capacity to consent to sexual activity.

(Paragraph 4.31; Draft Bill, sections 14-19)

26. It is not a defence to an offence involving rape or other sexual assaults and coerced sexual activity which apply to children under the age of 13 that the accused believed that the child was 13 or older.

(Paragraph 4.39; Draft Bill, section 20)

27. There should be no defence to offences involving rape or other sexual assaults and coerced sexual activity which apply to children under the age of 13 that the accused was married to, or in a civil partnership with, the child.

(Paragraph 4.42; Draft Bill, sections 14-19)

28. There should be special provisions applying the law on sexual penetration and other sexual assaults and on coerced sexual activity to children aged between 13 and 16 where the conduct involves the consent of the child.

(Paragraph 4.51; Draft Bill, sections 21-26)

29. The offences mentioned in recommendation 28 cannot be committed by a person who has not reached the age of 16.

(Paragraph 4.57; Draft Bill, sections 21(1); 22(1); 23(1); 24(1); 25(1); 26(1), (2))

30. There should be a ground of referral of a child to a children's hearing that the child has engaged in sexual activity with another person or has been subjected to sexual activity with another person.

(Paragraph 4.57; Draft Bill, section 29)

31. There should be a defence to an offence relating to sexual activity with a child aged between 13 and 16 that the accused believed on reasonable grounds that the child was 16 or older.

(Paragraph 4.64; Draft Bill, section 27(1)(b))

32. It should not be a defence to an offence relating to sexual activity with a child aged between 13 and 16 that the accused believed that the child was under 13 years of age.

(Paragraph 4.64; Draft Bill, section 27(4))

33. There should be a defence to an offence relating to sexual activity with a child aged between 13 and 16 that the accused and the child were married or in a civil partnership recognised as valid under Scots law.

(Paragraph 4.70; Draft Bill, section 27(1)(a))

34. The accused should bear an evidential, but not a legal, burden of establishing the defences set out in recommendations 31 and 33 and elsewhere in this Report.

(Paragraph 4.74)

35. There should be a defence to an offence involving sexual activity with an older child that the accused was less than 2 years older than the child or had at some time earlier engaged in such activity and at that time was less than 2 years older than the child.

(Paragraph 4.78; Draft Bill, section 28)

36. But this defence does not apply to an offence involving penile penetration of an older child.

(Paragraph 4.78; Draft Bill, section 27(2), (3))

37. Where a charge has been brought of a protective offence against a child, and the Crown can establish that at the time of the offence the child was under the age of 16 but cannot establish the child's actual age, then:

(a) if the charge is of an offence against an older child, the child will be deemed to have been 13 at that time; and

(b) if the charge is of an offence against a young child, the accused will be liable to be convicted of a corresponding offence against an older child.

(Paragraph 4.82; Draft Bill, section 28)

38. The crime of lewd, indecent or libidinous practice and behaviour towards children should be abolished.

(Paragraph 4.87; Draft Bill, section 40(a))

39. Section 311 of the Mental Health (Care and Treatment) (Scotland) Act 2003 should be repealed.

(Paragraph 4.96; Draft Bill, section 44(2); schedule 4)

40. There should be a definition of the capacity of a person with a mental disorder to consent to sexual activity.

(Paragraph 4.96; Draft Bill, section 13)

41. There should be offences which impose criminal liability on a person who has sexual activity with another person over whom he or she holds a position of trust.

(Paragraph 4.108; Draft Bill, sections 30-35)

42. It should be an offence for a person aged 18 or older to engage in sexual activity with another person aged under 18 where:

(a) the parties live in the same household; and

(b) there was a relationship of trust between the parties.

(Paragraph 4.115; Draft Bill, section 31(1), (6))

43. There is a relationship of trust between two people who live in the same household where:

(a) one person has or exercises parental responsibilities and rights in respect of the other person; or

(b) one person has in the past had or exercised parental responsibilities in respect of the other person; or

(c) one person is treating the other person as a child of his family.

(Paragraph 4.115; Draft Bill, section 31(6))

44. It should be a defence to a charge of abuse of trust between persons sharing the same household that the accused reasonably believed (i) that the other person was 18 or older or (ii) that he was not in a relationship of trust with that person.

(Paragraph 4.120; Draft Bill, section 33(1))

45. But it should not be a defence that the accused was married to that person or that the parties were in a sexual relationship prior to the relationship of trust between them.

(Paragraph 4.120; Draft Bill, section 33(2),(3))

46. Section 313 of the Mental Health (Care and Treatment) (Scotland) Act 2003 should be repealed.

(Paragraph 4.122; Draft Bill, section 44(2); schedule 4)

47. It should be an offence for a person to engage in a sexual activity with a mentally disordered person where he or she (a) is providing care services to the mentally disordered person or (b) works in, or is a manager of, a hospital where the mentally disordered person is being given medical treatment.

(Paragraph 4.122; Draft Bill, section 34)

48. It should be a defence to the offence of sexual abuse of a person with a mental disorder that:

(a) the person providing the care service did not know, on reasonable grounds, that the other person was mentally disordered;

(b) the person providing the care service did not know, on reasonable grounds, that there was a relationship of trust with the other person;

(c) the parties were married to, or in a civil partnership with, each other at the time of the sexual activity;

(d) a sexual relationship existed between the parties at the time when the relationship of trust between them was constituted.

(Paragraph 4.125; Draft Bill, section 35)

49. It should be an offence for a person aged 18 or older to engage in sexual activity with another person where:

(a) the person was in a position of trust in relation to that other person; and

(b) that other person was under the age of 18.

(Paragraph 4.128; Draft Bill, section 30)

50. A position of trust should be restricted to the situations set out in section 4 of the Sexual Offences (Amendment) Act 2000 but:

(a) a position of trust can arise in relation to a person receiving part-time education; and

(b) one person looks after another person where he or she regularly cares for, trains, supervises or is in sole charge of that other person.

(Paragraph 4.132; Draft Bill, section 31)

51. It should be a defence to an offence of sexual abuse of trust in recommendation 49 that:

(a) the accused reasonably believed that the complainer was 18 or older;

(b) the accused reasonably believed that there was no relationship of trust with the complainer;

(c) that the accused was married to, or in a civil partnership with, the complainer;

(d) that a sexual relationship existed between the accused and the complainer at the time when the relationship of trust between them was constituted.

(Paragraph 4.134; Draft Bill, section 33(1),(2),(4))

52. (1) There should be an exclusion from liability for incitement or art and part involvement in any offence concerning sexual activity with a child or young person for persons providing counselling, support or treatment on matters of sexual health.

(2) The exclusion from liability does not apply where the person acts with the purpose of:

(a) obtaining sexual gratification;

(b) humiliating, distressing or alarming the child or young person; or

(c) causing or encouraging the commission of an offence.

(Paragraph 5.5; Draft Bill, section 39)

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

(Paragraph 5.10; Draft Bill, section 40(a))

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

(Paragraph 5.10; Draft Bill, section 44(2); schedule 4)

55. 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.

(Paragraph 5.16; Draft Bill, section 7(1), (2))

56. 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.

(Paragraph 5.27; Draft Bill, section 7(3), (4))

57. 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.

(Paragraph 5.27; Draft Bill, section 37)

58. Consideration should be given to the creation of an offence of unlawful interference remains.

(Paragraph 5.28)

59. The removal of criminal liability for attacks carried out by persons for the purpose of obtaining sexual gratification should apply in respect of attacks which take place before or after the date on which the relevant provision comes into force but this rule should not affect convictions for assault before that date.

(Paragraph 7.6; Draft Bill, section 37(3))

60. Where the accused is charged with an offence under the Act and with an offence under the law in force prior to the Act, and the actual date on which the accused's conduct took place cannot be proven, the accused is liable to be convicted of an offence under the Act unless the maximum penalty for the offence under the prior law is less than that for the offence under the Act.

(Paragraph 7.10; Draft Bill, section 41)

61. The offences of rape and rape of a young child may be tried only in the High Court of Justiciary.

(Paragraph 7.16; Draft Bill, section 44(1); schedule 2, paragraph 5(2), (3))

62. Where in proceedings against an accused person in respect of one offence, that offence has not been proved, the accused may be convicted of another offence provided:

(a) the court or jury are satisfied that he committed that other offence; and

(b) the accused had received notice that be was liable to be convicted of that other offence.

(Paragraph 7.22; Draft Bill, section 38; schedule 2)