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Cite as: [2007] SLC 209(a) (Report)

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APPENDIX A

Sexual Offences (Scotland) Bill

[DRAFT]

CONTENTS

Section

Part 1

Rape etc.

Rape

Rape

Sexual assault and other sexual offences

Sexual assault

Sexual coercion

Coercing a person into being present during a sexual activity

Coercing a person into looking at an image of a sexual activity

Communicating indecently etc.

Sexual exposure

Administering a substance for sexual purposes

Part 2

Consent and Reasonable Belief

Consent

Meaning of "consent" and related expressions

Circumstances in which conduct takes place without free agreement

Consent: scope and withdrawal

Reasonable belief

"Reasonable belief"

Part 3

Mentally Disordered Persons

Mentally disordered persons

Capacity to consent

Part 4

Children

Young children

Rape of a young child

Sexual assault on a young child

Causing a young child to participate in a sexual activity

Causing a young child to be present during a sexual activity

Causing a young child to look at an image of a sexual activity

Communicating indecently with a young child etc.

Belief that child had attained the age of 13 years

Older children

Having intercourse with an older child

Engaging in sexual activity with or towards an older child

Causing an older child to participate in a sexual activity

Causing an older child to be present during a sexual activity

Causing an older child to look at an image of a sexual activity

Communicating indecently with an older child etc.

Defences in relation to offences against older children

General

Special provision as regards failure to establish whether child has or has not attained age of 13 years

Children requiring compulsory measures of care

Part 5

Abuse of Position of Trust

Children

Sexual abuse of trust

Positions of trust

Interpretation of section 31

Sexual abuse of trust: defences

Mentally disordered persons

Sexual abuse of trust of a mentally disordered person

Sexual abuse of trust of a mentally disordered person: defences

Part 6

Penalties

Penalties

Part 7

Miscellaneous and General

Miscellaneous

Consensual acts carried out for sexual gratification

Power to convict for offence other than that charged

Exceptions to inciting or being involved art and part in offences under Part 4 or 5

Common law offences

Continuity of sexual offences

General provisions

Interpretation

Transitional provision etc.

Minor and consequential amendments and repeals

Short title and commencement

__________

Schedule 1 —Penalties

Schedule 2 —Alternative verdicts

Schedule 3 —Minor and consequential amendments

Schedule 4 —Repeals

Sexual Offences (Scotland) Bill

[DRAFT]

An Act of the Scottish Parliament to make new provision about sexual offences, and for connected purposes.

Part 1

Rape etc.

Rape

1 Rape

(1) If a person ("A"), with A's penis and—

(a) without another person ("B") consenting, and

(b) without any reasonable belief that B consents,

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

(2) For the purposes of this section, penetration is a continuing act from entry until withdrawal of the penis; but this subsection is subject to subsection (3).

(3) In a case where penetration is initially consented to but at some point of time the consent is withdrawn, subsection (2) is to be construed as if the reference in it to a continuing act from entry were a reference to a continuing act from that point of time.

(4) In this Act—

"penis" includes an artificial penis if it forms part of A, having been created in the course of surgical treatment, and

"vagina" includes—

(a) the vulva, and

(b) an artificial vagina (together with any artificial vulva), if it forms part of B, having been created in the course of such treatment.

NOTE

Section 1 creates a statutory offence of rape. This means that, for the first time, rape is defined in statute rather than at common law. Its constituent elements are also redrawn.

Historically, rape in Scots law was defined as sexual intercourse by a man with a woman after he had forcibly overcome her will. However, the High Court of Justiciary, in Lord Advocate's Reference (No 1 of 2001) 2002 SLT 466, defined rape as sexual intercourse by a man with a woman without her consent. This places the emphasis on a lack of consent as opposed to the use of force.

Subsection (1) implements recommendation 11 and expands the current definition of rape so that the crime is now constituted by the intentional or reckless penetration, with the accused's penis, of the victim's vagina, anus or mouth in circumstances where the victim does not consent to the penetration and where the accused either knows that the victim does not consent, or has no reasonable belief that the victim is consenting. ("Consent" and "reasonable belief" are defined in sections 9-11 and 12 respectively.)

It follows from this statutory definition that the victim may be ether male or female. It is also possible for the perpetrator to have an artificial penis. In this way, the crime is not one which is only capable of being committed by a man on a woman, as is the case at common law. This is an embodiment of the principle that, so far as possible, sexual offences should not make distinctions based on gender.

Subsection (2) defines "penetration" for the purposes of this section. It is a continuing act from the entry of the penis (into the victim's vagina, anus or mouth) until its withdrawal. One consequence of this is that penetration may commence with consent, but may still be continuing when that consent is withdrawn. (Section 11(3) provides that consent may be withdrawn at any time before a sexual activity is completed.) Subsection (3) provides that, in such a situation, the penetration needed to commit rape will only begin at the point at which consent is withdrawn.

Subsection (4) defines certain terms, and the definitions are referred to in section 42.

Rape charges for the new statutory offence may only be prosecuted in the High Court, as is the case at present for common law rape charges. This is achieved, in the Bill, by means of the amendments in paragraphs 5(2) and (3) of schedule 3.

Sexual assault and other sexual offences

2 Sexual assault

(1) If a person ("A")—

(a) without another person ("B") consenting, and

(b) without any reasonable belief that B consents,

does any of the things mentioned in subsection (2), then A commits an offence, to be known as the offence of sexual assault.

(2) Those things are, that A—

(a) penetrates sexually, by any means and to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B,

(b) intentionally or recklessly touches B sexually,

(c) engages in any other form of sexual activity in which A, intentionally or recklessly, has physical contact (whether bodily contact or contact by means of an implement and whether or not through clothing) with B,

(d) intentionally or recklessly ejaculates semen onto B.

(3) For the purposes of—

(a) paragraph (a) of subsection (2), penetration is sexual,

(b) paragraph (b) of that subsection, touching is sexual,

(c) paragraph (c) of that subsection, an activity is sexual,

in any case if a reasonable person would, in all the circumstances of the case, consider the penetration, or as the case may be the touching or the activity, to be sexual.

(4) For the purposes of paragraph (a) of subsection (2), penetration is a continuing act from entry until withdrawal of whatever is intruded; but this subsection is subject to subsection (5).

(5) In a case where penetration is initially consented to but at some point of time the consent is withdrawn, subsection (4) is to be construed as if the reference in it to a continuing act from entry were a reference to a continuing act from that point of time.

(6) Without prejudice to the generality of paragraph (a) of subsection (2), the reference in the paragraph to penetration by any means is to be construed as including a reference to penetration with A's penis.

NOTE

Section 2 creates the offence of sexual assault. This implements recommendations 13 and 14. At present, much of the conduct which will fall under this new offence constitutes the common law offence of indecent assault, though other crimes may also be relevant.

The constituent elements of the offence are set out in subsections (1) and (2).

Subsection (1) requires that an offence is only committed if the victim did not consent to the conduct in question and the perpetrator had no reasonable belief that the victim was consenting. ("Consent" and "reasonable belief" are defined in sections 9-11 and 12 respectively.)

Subsection (2) sets out four sexual acts which fall within the offence of sexual assault. It also provides that, in each case, the perpetrator must either act intentionally or recklessly. (The test for recklessness will be an objective one, as is the general position in Scots law for mental elements.) The four sexual acts are:

(a) penetrating the victim's vagina, anus or mouth in a sexual way;

(b) touching the victim in a sexual way;

(c) having any other sexual physical contact with the victim, whether directly or through clothing and whether with a body part or with an implement;

(d) ejaculating semen onto the victim.

Subsection (3) sets out a test for determining whether an activity falling within subsection (2) is sexual. This implements recommendation 15. It provides an objective test, namely a test which says that an activity is sexual if a reasonable person would, in all the circumstances of the case, consider it to be sexual.

Subsections (4), (5) and (6) deal with penetration. Subsections (4) and (5) define penetration as a continuing activity and provide for the case where penetration is initially with consent but consent is withdrawn before penetration has ended. This is the same as the corresponding provisions in section 1. Subsection (6) provides that penetration can be with the perpetrator's penis. This means that there is an overlap between the conduct which constitutes sexual assault and that which constitutes rape. This overlap is deliberate. One use to which it may be put is the situation in which the victim knows that she has been penetrated but, because of darkness or a blindfold or other reason, is unable to say whether penetration was penile or not. In such a situation a conviction on a charge of sexual assault would be possible even evidence emerged that the penetration has been penile. The maximum penalty, in solemn proceedings, for sexual assault is the same as that for rape: see section 36 and schedule 1.

3 Sexual coercion

(1) If a person ("A")—

(a) without another person ("B") consenting to participate in a sexual activity, and

(b) without any reasonable belief that B consents to participating in that activity,

intentionally causes B to participate in that activity, then A commits an offence, to be known as the offence of sexual coercion.

(2) For the purposes of subsection (1), an activity is sexual in any case if a reasonable person would, in all the circumstances of the case, consider the activity to be sexual.

NOTE

Section 3 creates the offence of sexual coercion. It implements recommendation 17.

This offence is committed if the perpetrator intentionally causes the victim to participate in a sexual activity without his or her consent and without the perpetrator having any reasonable belief that such consent has been given. ("Consent" and "reasonable belief" are defined in sections 9-11 and 12 respectively.) The test for whether an activity is sexual is what a reasonable person would consider to be sexual: see the corresponding term in the offence of sexual assault (section 2).

The scope of the offence is wide, as reflected by the maximum penalty of life imprisonment for an offence prosecuted on indictment: see section 36 and schedule 1. This is largely because the coercion which is involved may involve a very serious invasion of the victim's autonomy. It is, in theory, possible to charge conduct amounting to rape under this provision. And if a woman forces a man to penetrate her (so-called "female rape") then that act would constitute sexual coercion.

4 Coercing a person into being present during a sexual activity

(1) If a person ("A")—

(a) without another person ("B") consenting, and

(b) without any reasonable belief that B consents,

either intentionally engages in a sexual activity and for a purpose mentioned in subsection (2) does so in the presence of B or intentionally and for a purpose mentioned in that subsection causes B to be present while a third person engages in such an activity, then A commits an offence, to be known as the offence of coercing a person into being present during a sexual activity.

(2) The purposes are—

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

(3) For the purposes of subsection (1), an activity is sexual in any case if a reasonable person would, in all the circumstances of the case, consider the activity to be sexual.

(4) Without prejudice to the generality of subsection (1), the reference in that subsection—

(a) to A engaging in a sexual activity in the presence of B, includes a reference to A engaging in it in a place in which A can be observed by B other than by B looking at an image, and

(b) to B being present while a third person engages in such an activity, includes a reference to B being in a place from which the third person can be so observed by B.

NOTE

Section 4 creates the offence of coercing a person into being present during a sexual activity. It implements recommendation 18.

Subsection (1) defines two circumstances in which the offence is committed. But there are common elements. First, the victim must not consent to being present during the activity, and the perpetrator must not have any reasonable belief that the victim was consenting. ("Consent" and "reasonable belief" are defined in sections 9-11 and 12 respectively.) Secondly, the activity must be sexual, for which the test is set out in subsection (3), namely what a reasonable person would consider to be sexual: see the corresponding term in the offence of sexual assault (section 2). Thirdly, the perpetrator must act for one of the purposes listed in subsection (2), that is the purpose of obtaining sexual gratification or the purpose of humiliating, distressing or alarming the victim (or for any combination of these purposes).

In addition to these requirements, the two circumstances in which an offence is committed under section 4 are, first, if the perpetrator intentionally engages in a sexual activity in the presence of the victim or, secondly, if the perpetrator causes the victim to be present while a third person engages in a sexual activity.

Subsection (4) explains that, for the purposes of this offence, the requirement that the victim is present, or that an activity is carried in his or her presence, includes situations in which the person engaging in the sexual activity can be observed by the victim other than by means of an image (such as an image on a screen which is generated by a webcam). It is not crucial that the victim can be proved to have actually observed the activity; it is enough that the activity was in a place where it was capable of being observed by the victim.

It may be that, in certain situations, the victim can see both the sexual activity and also an image of it. This might happen, for instance, if it takes place in a room with a mirror, or where the action is being recorded on a camera with a screen. In such a situation, the conduct may also amount to an offence under section 5.

5 Coercing a person into looking at an image of a sexual activity

(1) If a person ("A") intentionally and for a purpose mentioned in subsection (2) causes another person ("B")—

(a) without B consenting, and

(b) without any reasonable belief that B consents,

to look at an image (produced by whatever means and whether or not a moving image) of A engaging in a sexual activity or of a third person or imaginary person so engaging, then A commits an offence, to be known as the offence of coercing a person into looking at an image of a sexual activity.

(2) The purposes are—

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

(3) For the purposes of subsection (1), an activity is sexual in any case if a reasonable person would, in all the circumstances of the case, consider the activity to be sexual.

NOTE

Section 5 creates the offence of coercing a person into looking at an image of a sexual activity. It implements recommendation 19.

Subsection (1), read with the other two subsections, defines the scope of the offence. It is committed if a person intentionally, and for the purpose of obtaining sexual gratification or for the purpose of humiliating, distressing or alarming the victim, causes the victim to look at an image of a person engaging in a sexual activity. The test for what counts as sexual is set out in subsection (3), namely what a reasonable person would consider to be sexual: see the corresponding term in the offence of sexual assault (section 2).

The definition of what qualifies as an image for these purposes is broad. It includes a still or a moving image, and it also includes images of imaginary persons. The images may be produced by any means. Therefore, computer-generated imagery will be included if the images resemble people. So will images which are broadcast, such as by a webcam or a CCTV system. Recordings will also be caught, for example if stored on a computer or mobile telephone.

6 Communicating indecently etc.

(1) If a person ("A"), intentionally and for a purpose mentioned in subsection (3), sends, by whatever means, a sexual written communication to or directs, by whatever means, a sexual verbal communication at, another person ("B")—

(a) without B consenting to its being so sent or directed, and

(b) without any reasonable belief that B consents to its being so sent or directed,

then A commits an offence, to be known as the offence of communicating indecently.

(2) If, in circumstances other than are as mentioned in subsection (1), a person ("A"), intentionally and for a purpose mentioned in subsection (3), causes another person ("B") to see or hear, by whatever means, a sexual written communication or sexual verbal communication—

(a) without B consenting to seeing or as the case may be hearing it, and

(b) without any reasonable belief that B consents to seeing or as the case may be hearing it,

then A commits an offence, to be known as the offence of causing a person to see or hear an indecent communication.

(3) The purposes are—

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

(4) In this section—

(a) "written communication" means a communication in whatever written form, and without prejudice to that generality includes a communication which comprises writings of a person other than A (as for example a passage in a book or magazine), and

(b) "verbal communication" means a communication in whatever verbal form, and without prejudice to that generality includes—

(i) a communication which comprises sounds of sexual activity (whether actual or simulated), and

(ii) a communication by means of sign language.

(5) For the purposes of this section, a communication or activity is sexual in any case if a reasonable person would, in all the circumstances of the case, consider it to be sexual.

NOTE

This section implements recommendation 20. It creates two offences, each relating to unwanted sexual communication. There are some common features shared by both offences. First, there is to be no consent. In other words, the victim must not consent to the activity and the perpetrator must have no reasonable belief that the victim is consenting. ("Consent" and "reasonable belief" are defined in sections 9-11 and 12 respectively.) In addition, in each case the perpetrator must act either for the purpose of obtaining sexual gratification or to humiliate, distress or alarm the victim. Thirdly, the communication must be sexual, and subsection (5) provides that the test for what counts as sexual is what a reasonable person would consider to be sexual: see the corresponding term in the offence of sexual assault (section 2).

Subsection (1) creates the offence of communicating indecently. It is committed if a person, in the circumstances described above, intentionally sends the victim a sexual written communication by whatever means or directs a sexual verbal communication at the victim, by whatever means. Subsection (4) defines "written communication" and "verbal communication". Both definitions are broad. The former includes, for example, text in a book or a magazine and also includes electronically generated text such as text messages or emails. Verbal communications include sign language as well as spoken words, and also include sounds of sexual activity (such as the sound track to a pornographic recording, or the noises made by sexual actors who are close by but who cannot be seen).

Subsection (2) creates the offence of causing a person to see or hear an indecent communication. It is committed if, in circumstances other than as described in subsection (1), a person causes the victim to see a sexual written communication or to hear a sexual verbal communication, in either case by whatever means and in the circumstances described in the first paragraph above. The definitions in subsection (4) of "written communication" and "verbal communication" apply.

7 Sexual exposure

(1) If a person ("A") intentionally exposes A's genitals in a sexual manner to another person ("B") with the intention that B will see them and A either—

(a) intends that B will be caused alarm or distress by the exposure, or

(b) is reckless as to whether B will be caused alarm or distress by it,

then A commits an offence, to be known as the offence of sexual exposure.

(2) For the purposes of subsection (1), a manner of exposure is sexual in any case if a reasonable person would, in all the circumstances of the case, consider the manner of exposure to be sexual.

(3) It is a defence to a charge under subsection (1) that what A did—

(a) was done in the course of a performance of a play, and

(b) conformed to the directions of the presenter or director of that performance.

(4) In subsection (3)(a), "play" has the meaning given by section 18(1) of the Theatres Act 1968 (c.54) (interpretation of expressions used in that Act).

NOTE

Section 7 creates the offence of sexual exposure. It implements recommendations 55 and 56. This offence is designed to catch genital exposure which is directed at another person or people and which is intended to cause them alarm or distress. Other types of genital exposure will not be caught – such as that involved in streaking or nude sunbathing or urinating in a public place – although other criminal offences, for instance that of public indecency, might apply to such conduct. Exposure by a theatre actor will not be caught either, as explained below.

Subsection (1) states that the offence of sexual exposure is committed if a person intentionally exposes his or her genitals in a sexual manner to another person with the intention that that person will see them. In addition, the perpetrator must either intend that the victim will be caused alarm or distress as a result of the exposure, or must be reckless as to whether alarm or distress will be caused. The test for recklessness will be an objective one, as is the general position in Scots law for mental elements.

Subsection (2) provides that the test of whether the manner of exposure is sexual is an objective one, and is to ask whether a reasonable person would, in all the circumstances of the case, consider it to be sexual.

Subsection (3) creates a defence to a charge of sexual exposure. It is only available to those who expose their genitals in breach of this section and do so in the course of a performance of a play. As a further requirement, the director or presenter of the production must have directed the actor to expose his or her genitals in this way. This defence is in keeping with the spirit of the provisions of the Theatres Act 1968.

Subsection (4) defines "play" for the purposes of subsection (3).

8 Administering a substance for sexual purposes

(1) If a person ("A") intentionally administers a substance to, or causes a substance to be taken by, another person ("B")—

(a) without B knowing, and

(b) without any reasonable belief that B knows,

and does so for the purpose of stupefying or overpowering B, so as to enable A to engage in a sexual activity which involves B, then A commits an offence, to be known as the offence of administering a substance for sexual purposes.

(2) For the purposes of subsection (1)—

(a) an activity is sexual in any case if a reasonable person would, in all the circumstances of the case, consider the activity to be sexual, and

(b) if A, whether by act or omission, induces in B a reasonable belief that the substance administered or taken is (either or both)—

(i) of a substantially lesser strength, or

(ii) in a substantially lesser quantity,

than it is, any knowledge which B has (or belief as to knowledge which B has) that it is being administered or taken is to be disregarded.

NOTE

Section 8 implements recommendation 21. Subsection (1) creates the offence of intentionally giving a victim an intoxicant, without the victim's knowledge and without reasonable belief that he or she knows, for the purpose of stupefying the victim in order to enable the perpetrator to engage in a sexual activity with him or her. It is immaterial whether or not any sexual activity actually takes place, and to that extent the offence is not strictly a sexual one but is preparatory in nature.

The offence is also committed if, instead of intentionally giving the intoxicant to the victim, the perpetrator causes it to be taken by the victim. So, for example, if a person puts a drug into a bottle with an innocent-looking label with the intention that the victim will take it, in ignorance of what it is, then that person, whilst not having directly administered the drug, has nonetheless caused the victim to take it.

It is a requirement that the accused lacked any reasonable belief that the victim knew about the substance being administered or taken. The test for reasonable belief is the same as that for reasonable belief as to the consent in offences based on the lack of the consent of the victim. See Note to section 12.

Subsection (2)(a) states that the test of whether an activity is sexual is what a reasonable person would consider to be sexual.

Subsection (2)(b) extends the offence to certain situations in which the victim does in fact know that he or she is taking an intoxifying substance. In such a situation, if a person induces in the victim a reasonable belief that the substance is either substantially weaker than it really is, or is of a substantially smaller quantity than is really the case, then the fact that the victim knows that he or she is taking an intoxicant is to be disregarded. The result is that the offence is committed in such a situation. This is so whether the perpetrator actively does something to induce the belief in the victim or if the perpetrator fails to act. So, for example, if a person asks their companion for a single shot of vodka and a mixer and the companion gives them a triple measure (or where a half pint of lager is requested and a half pint of strong German pilsner is provided), an offence is committed regardless of whether the companion falsely states that the drink is a single (or a lager) or simply fails to say anything when it would be reasonable for the person to assume that he or she was being given what was requested.

Part 2

Consent and Reasonable Belief

Consent

9 Meaning of "consent" and related expressions

In Parts 1 and 3, "consent" means free agreement (and related expressions are to be construed accordingly).

NOTE

After the decision in Lord Advocate's Reference (No 1 of 2001) 2002 SLT 466 the crime of rape in Scots law was, for the first time, defined in terms of consent. However, no definition was given. Section 9, in implementation of recommendations 2, 3(a) and (b), and 4, defines consent as free agreement.

The definition applies to Parts 1 and 3. Part 1 contains all of the offences of which consent is a part; Part 3 deals with the capacity of those with a mental disorder to give consent. (In fact, the only other reference to consent in the Bill occurs in section 37, in Part 7, but this is to be understood as referring to the concept of consent as used in the law of assault.)

The definition of "consent" is to be read as applying also to variants such as "consents", "consenting" and so on. For example, "consents" is to be read as "freely agrees" or "gives free agreement".

10 Circumstances in which conduct takes place without free agreement

(1) For the purposes of section 9, but without prejudice to the generality of that section, free agreement to conduct is absent in the circumstances set out in subsection (2).

(2) Those circumstances are—

(a) where the only indication or expression of consent by B to the conduct occurs at a time when B is incapable, because of the effect of alcohol or any other substance, of consenting to it,

(b) where, at the time of conduct, B is asleep or unconscious, in circumstances where B has not, prior to becoming asleep or unconscious, consented to the conduct taking place while B is in that condition,

(c) where B agrees or submits to the conduct because of violence used against B or any other person, or because of threats of violence made against B or any other person,

(d) where B agrees or submits to the conduct because B is unlawfully detained by A,

(e) where B agrees or submits to the conduct because B is mistaken, as a result of deception by A, as to the nature or purpose of the conduct,

(f) where B agrees or submits to the conduct because A induces B to agree or submit to the conduct by impersonating a person known personally to B, or

(g) where the only expression or indication of agreement to the conduct is from a person other than B.

(3) References in this section to A and to B are to be construed in accordance with sections 1 to 6.

NOTE

Section 10, which implements recommendations 3(c) and 5, builds on the general definition of consent in section 9. In the particular situations which are set out in subsection (2) there is no free agreement, and hence no consent. However, this should not be understood as meaning that in situations which are not listed in subsection (2) there is free agreement. In any such case, the general definition in section 9 is to be used.

Subsection (3) provides that, in each of the paragraphs of subsection (2), the references to "A" and "B" are to be read in the same way as they are read in sections 1 to 6. In other words, "A" is the person accused of an offence and "B" is the victim or complainer.

Subsection (2)(a) states that there is no consent to sexual activity if B's only indication or expression of consent is given at a time when he or she is so intoxicated through alcohol or any other drug that he or she cannot consent. The exact point at which B reaches this level of intoxication will be a matter to be decided by the court but once it has been reached then any acting by B will not amount to consent. It does not matter whether B has voluntarily and knowingly taken the alcohol or drugs. However, if B has agreed in advance to sexual activity with A and has agreed that this activity can take place once B has become incapable through drink or drugs, then the definition in subsection (2)(a) does not apply and the general definition in section 9 must be used.

Subsection (2)(b) provides that, if B is asleep or unconscious (for whatever reason, including through having consumed excessive drink or drugs), then any sexual activity involving B will take place without consent. The only exception is when B has freely agreed, prior to falling asleep or becoming unconscious, to sexual activity taking place while he or she is in that state.

Subsection (2)(c) deals with situations in which B agrees or submits to sexual activity because of threats of violence, or actual violence, against him or her, or against any other person. The violence need not be contemporaneous, and could have occurred in the past (though it may be hard to prove that B submitted to the sexual activity because of the violence in such a case). Equally, a threat of violence could relate to a point in the future rather than being a threat of immediate violence if B does not co-operate.

Subsection (2)(d) provides that B does not consent to sexual activity if he or she agrees or submits to it because he or she is unlawfully detained by A. The detention need not involve any force or violence. Where a person is lawfully detained, or is unlawfully detained by a person other than A, the general definition in section 9 must be used.

Subsection (2)(e) provides that B does not consent to sexual activity when A has deceived him or her and, as a result, B is mistaken as to the nature or the purpose of the activity. This will cover, for instance, cases in which A falsely states that the activity is a necessary medical procedure (whereas it is in fact a sexual act with no medical purpose) and B agrees on this basis. Not all deceptions will be considered here: for example, if A deceives B about his or her sexual prowess (but not about the nature or purpose of the activity), or if the deception is practised by someone other than A, then the general definition of consent in section 9 must be used. Alternatively, subsection (2)(f) might be of use.

Subsection (2)(f) deals with the situation in which B agrees or submits to sexual activity with A because A impersonates someone known personally to B. This goes wider than the current provision, in section 7(3) of the Criminal Law (Consolidation) (Scotland) Act 1995, which provides that those who impersonate a woman's husband and have sexual intercourse are deemed to be guilty of rape.

Subsection (2)(g) states that B does not consent where the only expression or indication of consent to sexual activity is from someone other than B. This is designed to protect B's sexual autonomy, and may be considered a statement of the obvious. However, it is important to recognise it, in part because it reinforces the central idea that a sexual partner's consent must be obtained before A can be sure that the activity will not constitute an offence. Subsection (2)(g) does not prevent a third party conveying B's consent (as may be the case if B has communication difficulties) nor does it prevent a third party repeating B's consent. But in each case, A must be satisfied that B is in fact consenting.

11 Consent: scope and withdrawal

(1) This section applies in relation to sections 1 to 6.

(2) Consent to conduct does not of itself imply consent to any other conduct.

(3) Consent to conduct may be withdrawn at any time before, or in the case of continuing conduct, during, the conduct.

(4) If the conduct takes place, or continues to take place, after consent has been withdrawn, it takes place, or continues to take place, without consent.

NOTE

Section 11 applies to sections 1 to 6, which are the offences in the Bill which are based on the requirement of consent. It deals with two separate aspects of consent.

First, in implementation of recommendation 6, subsection (2) states that where consent is given to particular sexual conduct then this does not, of itself, imply that the person consents to other sexual conduct. The main utility of this is to rule out any implied escalation of consent. People should be free to choose to engage in certain types, or certain levels, of sexual activity without that consent being implied to cover other types or levels of sexual activity.

Secondly, subsections (3) and (4) deal with the withdrawal of consent. They implement recommendation 7. Subsection (3) has the effect that consent (within the meaning of the Bill) may be withdrawn at any time before the completion of the activity to which it relates. Consent may be withdrawn before the activity begins, or while it is taking place. Subsection (4) provides that, if consent is withdrawn, the activity takes place without consent. Where the activity has already begun when consent is withdrawn then the conduct must cease immediately if criminal liability under the Bill is to be avoided.

Reasonable belief

12 "Reasonable belief"

In determining, for the purposes of Part 1, whether a person's belief as to consent or knowledge was reasonable, regard is to be had to whether the person took any steps to ascertain whether there was consent or, as the case may be, knowledge; and if so, to what those steps were.

NOTE

Most of the offences in Part 1 of the Bill require the Crown to prove, in addition to the victim's lack of consent, that the accused had no reasonable belief that he or she was consenting to the conduct. It will be a matter for the jury or the court to determine in each particular instance what amounts to a reasonable belief, but section 12 sets out a framework to be used in reaching a decision. This implements recommendation 22.

The test is not a subjective one (which would focus just on the mental state of the particular accused) nor is it purely objective (which would ask whether a reasonable person would have believed that the victim was consenting), but it is a mixed test. The court or jury is required to decide whether the accused had a belief which was reasonable (which has an objective element), but in reaching this decision regard is to be had to whether the particular accused took steps (and if so, what they were) to ascertain whether the other party was consenting (which imports an element of subjectivity).

The same test applies to the requirement in section 8 (administering a substance for sexual purposes) that the accused lacked any reasonable belief that the victim knew about the substance being administered or taken.

Part 3

Mentally Disordered Persons

Mentally disordered persons

13 Capacity to consent

(1) This section applies in relation to sections 1 to 6.

(2) A mentally disordered person is incapable of consenting to conduct where, by reason of mental disorder, the person is unable to do one or more of the following—

(a) understand what the conduct is,

(b) form a decision as to whether to engage in the conduct (or as to whether the conduct should take place),

(c) communicate any such decision.

(3) In this Act, "mental disorder" has the same meaning as in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (and related expressions are to be construed accordingly).

NOTE

Section 13, which implements recommendation 40, deals with the capacity of those with a mental disorder to consent to sexual activity.

By subsection (1), it relates to the offences in sections 1 to 6, where lack of consent is an essential element.

Subsection (2) states that a mentally disordered person is incapable of consenting to conduct (to be understood as any conduct which falls within sections 1 to 6) where, by reason of the mental disorder, he or she is unable to do any of the things listed in paragraphs (a) to (c). This test for capacity mirrors the one currently set out in section 311(4) of the 2003 Act (although this section is to be repealed by schedule 3 to the Bill).

The effect of this is that, where apparently consenting sexual contact involving a mentally disordered person takes place and, by subsection (2), that person is incapable of consenting, any consent will be disregarded for the purposes of sections 1 to 6.

By subsection (3), the definition of "mental disorder" is the same as that in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003. In essence, this means a mental illness, a personality disorder or a learning disability, however caused or manifested.

Part 4

Children

Young children

14 Rape of a young child

If a person ("A"), with A's penis, penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of a child ("B") who has not attained the age of 13 years, then A commits an offence, to be known as the offence of rape of a young child.

NOTE

Section 14 creates the offence of rape of a young child. This implements recommendations 24 and 25. The conduct which amounts to rape is the same as that in section 1 (rape). However, there is no reference to consent, as it is presumed that a young child is incapable of consenting to penetration.

This provision replaces the current one, in section 5(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 (which will be repealed by schedule 3 to the Bill). That offence is limited to sexual intercourse with a girl under the age of 13, whereas section 15 covers other forms of penile penetration and also covers male and female victims.

A charge of rape of a young child may only be prosecuted in the High Court. This is achieved, in the Bill, by means of the amendments in paragraphs 5(2) and (3) of schedule 3.

15 Sexual assault on a young child

(1) If a person ("A") does any of the things mentioned in subsection (2) ("B" being in each case a child who has not attained the age of 13 years), then A commits an offence, to be known as the offence of sexual assault on a young child.

(2) Those things are, that A—

(a) penetrates sexually, by any means and to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B,

(b) intentionally or recklessly touches B sexually,

(c) engages in any other form of sexual activity in which A, intentionally or recklessly, has physical contact (whether bodily contact or contact by means of an implement and whether or not through clothing) with B,

(d) intentionally or recklessly ejaculates semen onto B.

(3) For the purposes of—

(a) paragraph (a) of subsection (2), penetration is sexual,

(b) paragraph (b) of that subsection, touching is sexual,

(c) paragraph (c) of that subsection, an activity is sexual,

in any case if a reasonable person would, in all the circumstances of the case, consider the penetration, or as the case may be the touching or the activity, to be sexual.

(4) Without prejudice to the generality of paragraph (a) of subsection (2), the reference in the paragraph to penetration by any means is to be construed as including a reference to penetration with A's penis.

NOTE

Section 15 creates the offence of sexual assault on a young child. It implements recommendation 24 and 25.

Subsection (2) sets out four sexual acts which fall within the offence. It also provides that, in each case, the perpetrator must either act intentionally or recklessly. (We intend that the test for recklessness will be an objective one, as is the general position in Scots law for mental elements.) The four sexual acts are:

(a) penetrating the victim's vagina, anus or mouth in a sexual way;

(b) touching the victim in a sexual way;

(c) having any other sexual physical contact with the victim, whether directly or through clothing and whether with a body part or with an implement;

(d) ejaculating semen onto the victim.

Subsection (3) sets out a test for determining whether an activity falling within subsection (2) is sexual. It provides an objective test, namely that an activity is sexual if a reasonable person would, in all the circumstances of the case, consider it to be sexual.

Subsection (4) provides that penetration can be with the perpetrator's penis. This means that there is an overlap between the conduct which constitutes sexual assault on a young child and that which constitutes rape of a young child. This overlap is deliberate. One use to which it may be put is the situation in which the victim knows that he or she has been penetrated but, because of darkness or a blindfold or other reason, is unable to say whether penetration was penile or not. The maximum penalty, in solemn proceedings, for sexual assault of a young child is the same as that for rape of a young child: see section 36 and schedule 1.

16 Causing a young child to participate in a sexual activity

(1) If a person ("A") intentionally causes a child ("B") who has not attained the age of 13 years to participate in a sexual activity, then A commits an offence, to be known as the offence of causing a young child to participate in a sexual activity.

(2) For the purposes of subsection (1), an activity is sexual in any case if a reasonable person would, in all the circumstances of the case, consider the activity to be sexual.

NOTE

Section 16 creates the offence of causing a young child to participate in a sexual activity. This implements recommendations 24 and 25.

Subsection (1) states that the offence is committed if the perpetrator intentionally causes the victim to participate in a sexual activity.

Subsection (2) provides the test for whether an activity is sexual, namely what a reasonable person would consider to be sexual: see the corresponding term in the offence of sexual assault on a young child (section 15).

17 Causing a young child to be present during a sexual activity

(1) If a person ("A") either—

(a) intentionally engages in a sexual activity and for a purpose mentioned in subsection (2) does so in the presence of a child ("B") who has not attained the age of 13 years, or

(b) intentionally and for a purpose mentioned in subsection (2) causes B to be present while a third person engages in such an activity,

then A commits an offence, to be known as the offence of causing a young child to be present during a sexual activity.

(2) The purposes are—

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

(3) For the purposes of subsection (1), an activity is sexual in any case if a reasonable person would, in all the circumstances of the case, consider the activity to be sexual.

(4) Without prejudice to the generality of subsection (1), the reference—

(a) in paragraph (a) of that subsection to A engaging in a sexual activity in the presence of B, includes a reference to A engaging in it in a place in which A can be observed by B other than by B looking at an image, and

(b) in paragraph (b) of that subsection to B being present while a third person engages in such an activity, includes a reference to B being in a place from which the third person can be so observed by B.

NOTE

Section 17 creates the offence of causing a young child to be present during a sexual activity. This implements recommendations 24 and 25.

Subsection (1) defines two circumstances in which the offence is committed. But there are common elements. First, the activity at which the young child is present must be sexual. The test for this is set out in subsection (3), namely what a reasonable person would consider to be sexual: see the corresponding term in the offence of sexual assault on a young child (section 15). Secondly, the perpetrator's purpose in having the child present must be one of those listed in subsection (2), that is the purpose of obtaining sexual gratification or the purpose of humiliating, distressing or alarming the victim (or for any combination of these purposes). Thus, a person who causes a child to be present in other circumstances (such as when parents engage in sexual activity in the same room as their sleeping baby) will not be caught. Sexual gratification can include deferred gratification, as would be the case where the perpetrator coerces the victim to be present during sexual activity with the intention that he or she will then consent to participate in sexual conduct with the perpetrator. The same applies to humiliation, distress and alarm, where the purpose need not be to cause these feelings to be immediately present.

In addition to these requirements, the two circumstances in which the present offence is committed are, first, if the perpetrator intentionally engages in a sexual activity in the presence of the victim or, secondly, if the perpetrator causes the victim to be present while a third person engages in a sexual activity.

18 Causing a young child to look at an image of a sexual activity

(1) If a person ("A") intentionally and for a purpose mentioned in subsection (2) causes a child ("B") who has not attained the age of 13 years to look at an image (produced by whatever means and whether or not a moving image) of A engaging in a sexual activity or of a third person or imaginary person so engaging, then A commits an offence, to be known as the offence of causing a young child to look at an image of a sexual activity.

(2) The purposes are—

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

(3) For the purposes of subsection (1), an activity is sexual in any case if a reasonable person would, in all the circumstances of the case, consider the activity to be sexual.

NOTE

Section 18 creates the offence of causing a young child to look at an image of a sexual activity. This implements recommendations 24 and 25.

19 Communicating indecently with a young child etc.

(1) If a person ("A"), intentionally and for a purpose mentioned in subsection (3)—

(a) sends, by whatever means, a sexual written communication to, or

(b) directs, by whatever means, a sexual verbal communication at,

a child ("B") who has not attained the age of 13 years, then A commits an offence, to be known as the offence of communicating indecently with a young child.

(2) If, in circumstances other than are as mentioned in subsection (1), a person ("A"), intentionally and for a purpose mentioned in subsection (3) causes a child ("B") who has not attained the age of 13 years to see or hear, by whatever means, a sexual written communication or sexual verbal communication, then A commits an offence, to be known as the offence of causing a young child to see or hear an indecent communication.

(3) The purposes are—

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

(4) In this section—

(a) "written communication" means a communication in whatever written form, and without prejudice to that generality includes a communication which comprises writings of a person other than A (as for example a passage in a book or magazine), and

(b) "verbal communication" means a communication in whatever verbal form, and without prejudice to that generality includes—

(i) a communication which comprises sounds of sexual activity (whether actual or simulated), and

(ii) a communication by means of sign language.

(5) For the purposes of this sections a communication or activity is sexual in any case if a reasonable person would, in all the circumstances of the case, consider it to be sexual.

NOTE

Section 19 creates two offences, each relating to unwanted sexual communication. This implements recommendations 24 and 25.

There are some common features shared by both offences. First, in each case the perpetrator must act either for the purpose of obtaining sexual gratification or to humiliate, distress or alarm the victim. Secondly, the communication must be sexual, and subsection (5) provides that the test for what counts as sexual is what a reasonable person would consider to be sexual: see the corresponding term in the offence of sexual assault on a young child (section 15).

Subsection (1) creates the offence of communicating indecently with a young child. It is committed if a person, in the circumstances described above, intentionally sends the victim a sexual written communication by whatever means or directs a sexual verbal communication at the victim, by whatever means. Subsection (4) defines "written communication" and "verbal communication". Both definitions are broad. The former includes, for example, text in a book or a magazine and also includes electronically generated text such as text messages or emails. Verbal communications include sign language as well as spoken words, and also include sounds of sexual activity (such as the sound track to a pornographic recording, or the noises made by sexual actors who are close by but who cannot be seen).

Subsection (2) creates the offence of causing a young child to see or hear an indecent communication. It is committed if, in circumstances other than as described in subsection (1), a person causes the young child to see a sexual written communication or to hear a sexual verbal communication, in either case by whatever means and in the circumstances described in the second paragraph above. The definitions in subsection (4) of "written communication" and "verbal communication" apply.

20 Belief that child had attained the age of 13 years

It is not a defence to a charge under any of sections 14 to 19 that A believed that B had attained the age of 13 years.

NOTE

Section 20, which implements recommendation 26, states that an accused has no defence to a charge under sections 14 to 19 if he or she believed (wrongly) that the other party was aged 13 years or over. This contrasts with the position in relation to the offences against older children (i.e. those aged 13, 14 or 15), in respect of which a reasonable belief that the other party had attained the age of 16 is a defence. (See section 27(1)(b).)

Older children

21 Having intercourse with an older child

If a person ("A"), who has attained the age of 16 years, with A's penis, penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of a child ("B"), who—

(a) has attained (or under section 28(1) is deemed to have attained) the age of 13 years, but

(b) has not attained the age of 16 years,

then A commits an offence, to be known as the offence of having intercourse with an older child.

NOTE

Section 21 creates the offence of having intercourse with an older child. This implements recommendations 28 and 29.

The offence may only be committed by a person aged 16 or over. The other party must be aged 13, 14 or 15. The offence is committed by the intentional or reckless penetration, with the accused's penis, of the victim's vagina, anus or mouth.

22 Engaging in sexual activity with or towards an older child

(1) If a person ("A"), who has attained the age of 16 years, does any of the things mentioned in subsection (2), "B" being in each case a child who—

(a) has attained (or under section 28(1) is deemed to have attained) the age of 13 years, but

(b) has not attained the age of 16 years,

then A commits an offence, to be known as the offence of engaging in sexual activity with or towards an older child.

(2) Those things are, that A—

(a) penetrates sexually, by any means and to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B,

(b) intentionally or recklessly touches B sexually,

(c) engages in any other form of sexual activity in which A, intentionally or recklessly, has physical contact (whether bodily contact or contact by means of an implement and whether or not through clothing) with B,

(d) intentionally or recklessly ejaculates semen onto B.

(3) For the purposes of—

(a) paragraph (a) of subsection (2), penetration is sexual,

(b) paragraph (b) of that subsection, touching is sexual,

(c) paragraph (c) of that subsection, an activity is sexual,

in any case if a reasonable person would, in all the circumstances of the case, consider the penetration, or as the case may be the touching or the activity, to be sexual.

(4) Without prejudice to the generality of paragraph (a) of subsection (2), the reference in the paragraph to penetration by any means is to be construed as including a reference to penetration with A's penis.

NOTE

Section 22 creates the offence of engaging in sexual activity with or towards an older child. This implements recommendations 28 and 29.

Subsection (1) states that the offence may only be committed by a person aged 16 or over. The other party must be aged 13, 14 or 15.

Subsection (2) sets out four sexual acts which fall within the offence. It also provides that, in each case, the perpetrator must either act intentionally or recklessly. (The test for recklessness will be an objective one, as is the general position in Scots law for mental elements.) The four sexual acts are:

(a) penetrating the victim's vagina, anus or mouth in a sexual way;

(b) touching the victim in a sexual way;

(c) having any other sexual physical contact with the victim, whether directly or through clothing and whether with a body part or with an implement;

(d) ejaculating semen onto the victim.

Subsection (4) provides that penetration can be with the perpetrator's penis. This means that there is an overlap between the present offence and that of having intercourse with an older child. As to the reason for such overlap, see the note to section 15.

23 Causing an older child to participate in a sexual activity

(1) If a person ("A"), who has attained the age of 16 years, intentionally causes a child ("B"), who—

(a) has attained (or under section 28(1) is deemed to have attained) the age of 13 years, but

(b) has not attained the age of 16 years,

to participate in a sexual activity, then A commits an offence, to be known as the offence of causing an older child to participate in a sexual activity.

(2) For the purposes of subsection (1), an activity is sexual in any case if a reasonable person would, in all the circumstances of the case, consider the activity to be sexual.

NOTE

Section 23 creates the offence of causing an older child to participate in a sexual activity. This implements recommendations 28 and 29.

Subsection (1) states that the offence may only be committed by a person aged 16 or over. The other party must be aged 13, 14 or 15. Further, it provides that the offence is committed if the perpetrator intentionally causes the child to participate in a sexual activity.

Subsection (2) provides the test for whether an activity is sexual, namely what a reasonable person would consider to be sexual: see the corresponding term in the offence of engaging in sexual activity with or towards an older child (section 22).

24 Causing an older child to be present during a sexual activity

(1) If a person ("A"), who has attained the age of 16 years either—

(a) intentionally engages in a sexual activity and for a purpose mentioned in subsection (2) does so in the presence of a child ("B"), who—

(i) has attained (or under section 28(1) is deemed to have attained) the age of 13 years, but

(ii) has not attained the age of 16 years, or

(b) intentionally, and for a purpose mentioned in subsection (2) causes B to be present while a third person engages in such an activity,

then A commits an offence, to be known as the offence of causing an older child to be present during a sexual activity.

(2) The purposes are—

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

(3) For the purposes of subsection (1), an activity is sexual in any case if a reasonable person would, in all the circumstances of the case, consider the activity to be sexual.

(4) Without prejudice to the generality of subsection (1), the reference—

(a) in paragraph (a) of that subsection to A engaging in a sexual activity in the presence of B, includes a reference to A engaging in it in a place in which A can be observed by B other than by B looking at an image, and

(b) in paragraph (b) of that subsection to B being present while a third person engages in such an activity, includes a reference to B being in a place from which the third person can be so observed by B.

NOTE

Section 24 creates the offence of causing an older child to be present during a sexual activity. This implements recommendations 28-29.

Subsection (1) states that the offence may only be committed by a person aged 16 or over. The other party must be aged 13, 14 or 15. It also defines two circumstances in which the offence is committed. There are common elements. First, the activity at which the older child is present must be sexual. The test for this is set out in subsection (3), namely what a reasonable person would consider to be sexual: see the corresponding term in the offence of engaging in sexual activity with or towards an older child (section 22). Secondly, the perpetrator's purpose in having the child present must be one of those listed in subsection (2), that is the purpose of obtaining sexual gratification or the purpose of humiliating, distressing or alarming the older child (or for any combination of these purposes). Thus, a person who causes a child to be present in other circumstances (such as when parents engage in sexual activity in the same room as their sleeping baby) will not be caught.

In addition to these requirements, the two circumstances in which the present offence is committed are, first, if the perpetrator intentionally engages in a sexual activity in the presence of an older child or, secondly, if the perpetrator causes an older child to be present while a third person engages in a sexual activity.

Subsection (4) explains that, for the purposes of this offence, the requirement that the older child is present, or that an activity is carried in his or her presence, includes situations in which the person engaging in the sexual activity can be observed by the child other than by means of an image (such as an image on a screen which is generated by a webcam). It is not crucial that the child can be proved to have actually observed the activity; it is enough that the activity was in a place where it was capable of being observed by him or her.

It may be that, in certain situations, the older child can see both the sexual activity and also an image of it. This might happen, for instance, if it takes place in a room with a mirror, or where the action is being recorded on a camera with a screen. In such a situation, the conduct may also amount to an offence under section 25.

25 Causing an older child to look at an image of a sexual activity

(1) If a person ("A"), who has attained the age of 16 years, intentionally and for a purpose mentioned in subsection (2) causes a child ("B"), who—

(a) has attained (or under section 28(1) is deemed to have attained) the age of 13 years, but

(b) has not attained the age of 16 years,

to look at an image (produced by whatever means and whether or not a moving image) of A engaging in a sexual activity or of a third person or imaginary person so engaging, then A commits an offence, to be known as the offence of causing an older child to look at an image of a sexual activity.

(2) The purposes are—

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

(3) For the purposes of subsection (1), an activity is sexual in any case if a reasonable person would, in all the circumstances of the case, consider the activity to be sexual.

NOTE

Section 25 creates the offence of causing an older child to look at an image of a sexual activity. This implements recommendations 28 and 29.

Subsection (1), read with the other two subsections, defines the scope of the offence. It is committed if a person, aged 16 or over, intentionally causes a child aged 13, 14 or 15 to look at an image of a person engaging in a sexual activity and does so for the purpose of obtaining sexual gratification or for the purpose of humiliating, distressing or alarming the child. The test for what counts as sexual is set out in subsection (3), namely what a reasonable person would consider to be sexual: see the corresponding term in the offence of engaging in sexual activity with or towards an older child (section 22).

26 Communicating indecently with an older child etc.

(1) If a person ("A"), who has attained the age of 16 years, intentionally and for a purpose mentioned in subsection (3), sends, by whatever means, a sexual written communication to or directs, by whatever means, a sexual verbal communication at, a child ("B") who—

(a) has attained (or under section 28(1) is deemed to have attained) the age of 13 years, but

(b) has not attained the age of 16 years,

then A commits an offence, to be known as the offence of communicating indecently with an older child.

(2) If, in circumstances other than are as mentioned in subsection (1), a person ("A"), who has attained the age of 16 years, intentionally and for a purpose mentioned in subsection (3), causes another person ("B") who is a child described in paragraphs (a) and (b) of subsection (1) to see or hear, by whatever means, a sexual verbal communication or sexual verbal communication, then A commits an offence, to be known as the offence of causing an older child to see or hear an indecent communication.

(3) The purposes are—

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

(4) In this section—

(a) "written communication" means a communication in whatever written form, and without prejudice to that generality includes a communication which comprises writings of a person other than A (as for example a passage in a book or magazine), and

(b) "verbal communication" means a communication in whatever verbal form, and without prejudice to that generality includes—

(i) a communication which comprises sounds of sexual activity (whether actual or simulated), and

(ii) a communication by means of sign language.

(5) For the purposes of this section, a communication or activity is sexual in any case if a reasonable person would, in all the circumstances of the case, consider it to be sexual.

NOTE

Section 26 creates two offences, each relating to sexual communication. This implements recommendations 28 and 29.

There are some common features shared by both offences. First, in each case the perpetrator, who must be aged 16 or over, must act in relation to a child aged 13, 14 or 15. Secondly, the perpetrator must act either for the purpose of obtaining sexual gratification or to humiliate, distress or alarm the child. Thirdly, the communication must be sexual, and subsection (5) provides that the test for what counts as sexual is what a reasonable person would consider to be sexual: see the corresponding term in the offence of engaging in sexual activity with or towards an older child (section 22).

Subsection (1) creates the offence of communicating indecently with an older child (in other words, a child aged 13, 14 or 15). It is committed if a person, in the circumstances described above, intentionally sends the child a sexual written communication by whatever means or directs a sexual verbal communication at him or her, by whatever means. Subsection (4) defines "written communication" and "verbal communication". Both definitions are broad. The former includes, for example, text in a book or a magazine and also includes electronically generated text such as text messages or emails. Verbal communications include sign language as well as spoken words, and also include sounds of sexual activity (such as the sound track to a pornographic recording, or the noises made by sexual actors who are close by but who cannot be seen).

Subsection (2) creates the offence of causing an older child to see or hear an indecent communication. It is committed if, in circumstances other than as described in subsection (1), a person causes the child to see a sexual written communication or to hear a sexual verbal communication, in either case by whatever means and in the circumstances described in the second paragraph above. The definitions in subsection (4) of "written communication" and "verbal communication" apply.

27 Defences in relation to offences against older children

(1) It is a defence to a charge under any of sections 21 to 26 that—

(a) B was A's spouse or civil partner, or

(b) A reasonably believed that B had attained the age of 16 years.

(2) Subject to subsection (3), it is a defence to a charge under any of sections 22 to 26 that—

(a) at the time when the conduct to which the charge relates took place, the difference between A's age expressed in whole years and B's age so expressed did not exceed 2, or

(b) before that time (but after A had attained the age of 16 years), such conduct involving A and B as is mentioned in any of those sections took place and at the time it took place the difference between A's age expressed in whole years and B's age so expressed did not exceed 2.

(3) Subsection (2) does not apply in so far as a charge is founded on subsection (2)(a) of section 22 if penetration was with A's penis.

(4) It is not a defence to a charge under any of sections 21 to 26 that A believed that B had not attained the age of 13 years.

NOTE

Section 27 provides two defences to any charge of an offence against an older child, and a further defence for certain of those charges. It implements recommendations 31 to 36.

Subsection (1)(a) states that, for any charge under section 21 to 26, it is a defence for A to show that B was his or her spouse or civil partner at the time of the conduct in the charge. Given that the lower age limit for marriage in Scotland is 16 this effectively restricts the defence to marriages conducted outwith Scotland.

Subsection (1)(b) provides that it is a defence if the accused reasonably believed, at the time of the conduct in the charge, that the other party was aged 16 or over. It is not enough that the accused simply says that he or she had this belief. Rather, the accused must show why this belief was a reasonable one, and unless he or she meets this test then the defence need not be considered further. However, as mentioned below, once the accused has brought forward sufficient evidence then it is for the Crown to disprove the evidence, to the usual criminal standard of proof, or else the defence will succeed.

Subsection (2), read with subsection (3), provides a defence based on "proximity of age" between the accused and the other party. It is only available to an accused who is charged under sections 22 to 26, but not if the charge is of penile penetration under section 22. Paragraph (a) sets out the basic form of the defence, which is that the gap between the ages of the two parties at the time of the conduct was no greater than 2 (and the age is determined by the age at the most recent birthday). For example, if the accused is 17½ then the defence is available provided that the other party had attained the age of 15 by the time of the conduct. It will be seen that, because the age gap can be no more than 2, the defence can only be available to an accused who is 16 or 17 (and in those cases will only succeed if the other party has attained the age of 14 or 15 respectively).

There is a refinement to the defence in paragraph (b) of subsection (2). This will apply when the age gap, as defined above, is greater than 2 at the time of the conduct in the charge but where the two parties had previously had sexual contact with each other at a time when the age gap between them (again, as defined above) was no greater than 2 and when the accused had reached the age of 16. In such a situation, the accused could have used the "proximity of age" defence in subsection (2)(a) if the charge had related to that earlier conduct and, in recognition of the fact that a lawful relationship should not arbitrarily become unlawful simply because of the birth dates of the parties, the accused will continue to be able to use the defence by virtue of the refinement in paragraph (b).

As a general point, the defences in this section require the accused to satisfy an evidential burden (as opposed to a legal burden). This means that the accused must put evidence before the court which, if believed, could be taken by a reasonable jury to support the defence. If the accused succeeds in this then he or she must be acquitted unless the Crown establish, beyond reasonable doubt, that the evidence which the accused has raised is not sound.

Subsection (4) provides that the accused has no defence to a charge under sections 21 to 26 if he or she reasonably (but wrongly) believed that the other party was under 13. If this defence were allowed, the accused could not be convicted of any offence. That is because the offences against children under 13, in sections 14 to 19, can only be committed if the child is in fact under 13 (for which see the note to section 20).

General

28 Special provision as regards failure to establish whether child has or has not attained age of 13 years

(1) If in a trial where A is charged with an offence under any of sections 21 to 26 there is a failure to establish beyond reasonable doubt that B was a person who had attained the age of 13 years when the conduct to which the proceedings relate occurred, B is to be deemed for the purposes of the proceedings to be such a person.

(2) If in a trial where A is charged with an offence under any of sections 14 to 19 there is a failure to establish beyond reasonable doubt that B was a person who had not attained the age of 13 years when the conduct to which the proceedings relate occurred, but the court (or, in the case of a trial of an indictment, the jury) is satisfied—

(a) in every other respect that A committed the offence charged, and

(b) that it is established beyond reasonable doubt that B was a person who had not attained the age of 16 years when that conduct occurred,

A may be dealt with as mentioned in subsection (3).

(3) A may be acquitted of the charge but found guilty of an offence against B under—

(a) section 21 where A is charged with an offence under section 14,

(b) section 22 where A is charged with an offence under section 15,

(c) section 23 where A is charged with an offence under section 16,

(d) section 24 where A is charged with an offence under section 17,

(e) section 25 where A is charged with an offence under section 18,

(f) section 26(1) where A is charged with an offence under section 19(1), or

(g) section 26(2) where A is charged with an offence under section 19(2)

(A then being liable to be punished accordingly).

(4) If, but for a failure to establish beyond a reasonable doubt that B had not attained the age of 13 years, a court or jury would, by virtue of section 38(1), find that A committed an offence mentioned in the second column of schedule 2, it may, provided that—

(a) the condition in section 38(2) has been fulfilled, and

(b) it is satisfied that B was a person who had not attained the age of 16 years when the conduct to which the proceedings relate occurred,

deal with A as mentioned in subsection (5).

(5) A may be acquitted of the charge but found guilty of an offence against B under—

(a) section 22 where the offence mentioned in the second column of schedule 2 is an offence under section 15,

(b) section 23 where the offence so mentioned is an offence under section 16,

(c) section 24 where the offence so mentioned is an offence under section 17,

(d) section 25 where the offence so mentioned is an offence under section 18,

(e) section 26(1) where the offence so mentioned is an offence under section 19(1), or

(f) section 26(2) where the offence so mentioned is an offence under section 19(2),

(A then being liable to be punished accordingly).

(6) Subsections (3) and (4) of section 38 apply for the purposes of this section as they apply for the purposes of that section.

(7) A reference in this section to an offence includes a reference to—

(a) an attempt to commit,

(b) incitement to commit,

(c) counselling or procuring the commission of, and

(d) involvement art and part in,

an offence.

NOTE

The offences in Part 4 of the Bill, which all involve sexual activity with a child, divide into two distinct groups: those where the child is under the age of 13 at the time of the conduct (sections 14 to 19), and those where the child has attained the age of 13 but is under 16 (sections 21 to 26). The question of which offence is appropriate in any particular case is determined solely by the age of the child at the relevant time and not by any other factor, such as the accused's belief as to the child's age. (See the note to section 20.) It is therefore crucial for the Crown to be able to prove what age the child was at the time of the alleged offence. In the vast majority of cases this will not cause any difficulty but section 28, which implements recommendation 37 provides for those cases in which this issue arises.

Subsection (1) deals with charges under sections 21 to 26, or in other words those charges relating to conduct involving an older child. If the Crown is unable to prove, beyond reasonable doubt, that the child had attained the age of 13 at the relevant time then the effect of this subsection is that the child will be deemed to have attained that age. The Crown must of course be able to prove that the child was under the age of 16 at the relevant time.

Subsections (2) and (3) deal with charges under sections 14 to 19, namely those charges relating to conduct involving a young child. If the Crown is unable to prove, beyond reasonable doubt, that the child was under the age of 13 at the relevant time but can establish that, in every other respect, the accused committed or attempted to commit the crime which is charged (and can prove that the child was under 16) then the accused may be acquitted in relation to the charge but found guilty of the corresponding offence involving an older child, as set out in subsection (3).

Subsections (4) to (6) deal with situations in which a person is charged with an offence against a young child and where, but for a failure to prove that the victim was under 13, the person may be convicted of an alternative offence provided by section 38. (See the note to that section for a fuller explanation.) These subsections set out the circumstances in which the person can be convicted of that alternative offence.

29 Children requiring compulsory measures of care

(1) Section 52 of the Children (Scotland) Act 1995 (c.36) (which relates to the question of whether compulsory measures of care are necessary in respect of a child) is amended as follows.

(2) In subsection (2) there is inserted after paragraph (b)—

"(bb) has at any time engaged in sexual activity with, or been subjected to sexual activity by, another person,".

(3) At the end there is added—

"(4) For the purposes of paragraph (bb) of subsection (2)—

(a) an activity is sexual in any case if a reasonable person would, in all the circumstances of the case, consider the activity to be sexual,

(b) engaging in sexual activity includes, for a purpose mentioned in subsection (5)—

(i) causing a child who has attained the age of 13 years but not the age of 16 years to be present while a third person engages in such an activity or to look at an image of a third person or imaginary person engaging in such an activity,

(ii) sending such a child, by whatever means, a sexual written communication or directing, by whatever means, a sexual verbal communication at such a child, and

(iii) otherwise causing such a child to see or hear, by whatever means, a sexual written communication or sexual verbal communication,

(c) being subjected to sexual activity includes—

(i) being present while a person intentionally engages in such an activity, and

(ii) being caused to look at an image of a person or imaginary person engaging in such an activity,

if the purpose in having the child present, or as the case may be in having the child look at the image, was a purpose mentioned in subsection (5), and

(d) being subjected to sexual activity also includes—

(i) being sent, by whatever means, a sexual written communication or having had directed at, by whatever means, a sexual verbal communication, or

(ii) otherwise having been caused to see or hear, by whatever means, a sexual written communication or sexual verbal communication,

if the purpose in having the child receive or otherwise see or hear the communication was a purpose mentioned in subsection (5).

(5) The purposes are—

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming the child.

(6) In subsection (4), the expressions "sexual written communication" and "sexual verbal communication" are to be construed in accordance with section 26(4) and (5) of the Sexual Offences (Scotland) Act 2008.".

NOTE

Section 29, which implements recommendation 30, amends section 52 of the Children (Scotland) Act 1995 which sets out the grounds on which a child's case may be referred to the children's hearing system. This amendment is needed in consequence of the fact that no offence in Part 4 is committed if two children aged 13 to 15 (inclusive) have sexual contact with each other. The policy intention is that such conduct should be dealt with by means of a referral to the children's hearing system or – if there was no consent to the conduct – by way of a charge under an offence in Part 1 of the Bill.

Subsection (2) specifies an additional ground of referral to be added to the list in section 52(2) of the 1995 Act. That ground is that the child has, at any time, engaged in sexual activity with another person or been subjected to sexual activity by another person. If the other person is also a child then both children may be referred under this new ground.

Subsection (3) adds two subsections to section 52 of the 1995 Act, both of which are to be read with the additional ground of referral. These subsections provide that, for the purpose of the new ground of referral:

• The test of whether an activity is sexual is to be judged by reference to whether a reasonable person would, in all the circumstances, consider it to be so. This is the same test as is specified in certain of the offences elsewhere in the Bill.

• Cases where a child has "engaged in sexual activity" include (but are not limited to) cases involving conduct which, if the child had attained the age of 16, would have amounted to an offence under any of sections 24 to 26.

• Cases where a child has "been subjected to sexual activity by another person" include (but are not limited to) cases involving conduct done by that other person which would have fallen within any of sections 24 to 26 if that person had attained the age of 16.

Part 5

Abuse of Position of Trust

Children

30 Sexual abuse of trust

(1) If a person ("A") who has attained the age of 18 years—

(a) intentionally engages in a sexual activity with or directed towards another person ("B") who is under 18, and

(b) is in a position of trust in relation to B,

then A commits an offence, to be known as the offence of sexual abuse of trust.

(2) For the purposes of subsection (1), an activity is sexual in any case if a reasonable person would, in all the circumstances of the case, consider the activity to be sexual.

NOTE

Section 30 creates the offence of sexual abuse of trust. It implements recommendations 41, 42, and 46. Essentially, this is a consolidation of the existing offences in section 3 of the Criminal Law (Consolidation) (Scotland) Act 1995 and in section 3 of the Sexual Offences (Amendment) Act 2000.

Subsection (1) states that a person commits the offence if he or she, having attained the age of 18 years, intentionally engages in a sexual activity with, or directed at, a person who is under 18 and in respect of whom the perpetrator is in a position of trust.

Subsection (2) sets out the test for determining whether an activity is sexual. It provides an objective test, namely a test which says that an activity is sexual if a reasonable person would, in all the circumstances of the case, consider it to be sexual.

The definition of "position of trust" is contained in section 31.

31 Positions of trust

(1) For the purposes of section 30, a person ("A") is in a position of trust in relation to another person ("B") if any of the five conditions set out below, or any condition specified in an order made by the Scottish Ministers by statutory instrument, is fulfilled.

(2) The first condition is that B is detained by virtue of an order of court or under an enactment in an institution and A looks after B in that institution.

(3) The second condition is that B is resident in a home or other place in which accommodation is provided by a local authority under section 26(1) of the Children (Scotland) Act 1995 and A looks after B in that place.

(4) The third condition is that B is accommodated and cared for in—

(a) a hospital,

(b) accommodation provided by an independent health care service,

(c) accommodation provided by a care home service,

(d) a residential establishment, or

(e) accommodation provided by a school care accommodation service or a secure accommodation service,

and A looks after B in that place.

(5) The fourth condition is that B is receiving education at an educational establishment, and A looks after B in that establishment.

(6) The fifth condition is that A—

(a) has any parental responsibilities or parental rights in respect of B,

(b) fulfils any such responsibilities or exercises any such rights under arrangement with a person who has such responsibilities or rights,

(c) had any such responsibilities or rights but no longer has such responsibilities or rights, or

(d) treats B as a child of A's family,

and B is a member of the same household as A.

(7) No order may be made under subsection (1) unless a draft of the order has been laid before and approved by a resolution of the Scottish Parliament.

(8) A looks after B for the purposes of this section if A regularly cares for, trains, supervises, or is in sole charge of B.

NOTE

Section 31 defines "position of trust" for the purposes of the offence of sexual abuse of trust in section 30. It implements recommendations 42, 43, and 50.

Subsection (1) states that person A is in a position of trust in relation to person B if any of the five conditions set out in subsections (2) to (6) is fulfilled. It also creates a power for the Scottish Ministers to make an order specifying other conditions which constitute a position of trust, and A will be in a position of trust in relation to B if any of these conditions is fulfilled.

Subsection (2) sets out the first condition which constitutes a position of trust. It is satisfied if A looks after B when B is detained in an institution by virtue of a court order or under an enactment. This covers, for example, situations in which A is a prison warder in a young offenders institution in which B is being detained.

Subsection (3) sets out the second condition. It is met if A looks after B when B resides in accommodation provided by a local authority under section 26(1) of the Children (Scotland) Act 1995.

Subsection (4) sets out the third condition. It is fulfilled if A looks after B when B is accommodated in any of the places described in paragraphs (a) to (e). Definitions of the terms used in this subsection are provided in section 32.

Subsection (5) sets out the fourth condition. It is met if A looks after B when B is receiving education at an educational establishment (which, in terms of the definition in section 32, includes higher education).

Subsection (6) sets out the fifth condition. This is fulfilled if A and B are members of the same household and A has (or had, or fulfils) parental rights or parental responsibilities in respect of B or if A treats B as a child of A's family.

Subsection (7) provides that any order made by the Scottish Ministers under the order-making power in subsection (1) does not become law unless it is approved by a resolution of the Scottish Parliament.

Subsection (8) defines what it means for A to "look after" B for the purposes of any of the conditions in subsections (2) to (5). The definition requires that A needs to care for, train, supervise or be in sole charge of B and to do so regularly before a position of trust arises. It will be a matter for the court or the jury to determine in any particular case whether A was "looking after" B at the relevant time.

32 Interpretation of section 31

In section 31—

"care home service" has the meaning given by section 2(3) of the Regulation of Care (Scotland) Act 2001 (asp 8) ("the 2001 Act"),

"educational establishment" has the same meaning as in section 135(1) of the Education (Scotland) Act 1980 (c.44) except that it includes—

(a) a university,

(b) a theological college,

"hospital" means a health service hospital (as defined in section 108(1) of the National Health Service (Scotland) Act 1978 (c.29)),

"independent health care service" has the meaning given by section 2(5) of the 2001 Act (asp 8),

"local authority" means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c.39),

"parental responsibilities" and "parental rights" have the same meanings as in the Children (Scotland) Act 1995 (c.36),

"residential establishment" has the meaning given by section 93(1)(a) of that Act of 1995,

"school care accommodation service" has the meaning given by section 2(4) of the 2001 Act, and

"secure accommodation service" has the meaning given by section 2(9) of the 2001 Act.

NOTE

Section 32 defines certain terms used in section 31.

33 Sexual abuse of trust: defences

(1) It is a defence to a charge under section 30 that A reasonably believed—

(a) that B had attained the age of 18, or

(b) that B was not a person in relation to whom A was in a position of trust.

(2) It is a defence to a charge under section 30—

(a) that B was A's spouse or civil partner, or

(b) that immediately before the position of trust came into being, a sexual relationship existed between A and B.

(3) Subsection (2) does not apply if A was in a position of trust in relation to B by virtue of section 31(6).

(4) For the purposes of subsection (2), a relationship is sexual in any case if a reasonable person would, in all the circumstances of the case, consider the relationship to be sexual.

NOTE

Section 33 implements recommendations 44, 45, and 51. It provides four defences to a charge under section 30 (sexual abuse of trust). Those in subsection (1) apply to any such charge, but those in subsection (2) do not apply where the abuse occurs within a family setting (in other words, where the fifth condition in section 31 applies).

Subsection (1)(a) provides that it is a defence if the accused reasonably believed, at the time of the conduct, that the person with whom it took place (or towards whom it was directed) was aged 18 or over.

Subsection (1)(b) provides that it is a defence if the accused reasonably believed, at the time of the conduct, that the person with whom it took place (or towards whom it was directed) was not a person in relation to whom the accused was in a position of trust.

It is not enough, for either of the defences in subsection (1), that the accused simply says that he or she had the relevant belief. Rather, the accused must show why this belief was a reasonable one, and unless he or she meets this test then the defence need not be considered further. However, as mentioned below, once the accused has brought forward sufficient evidence then it is for the Crown to disprove the evidence, to the usual criminal standard of proof, or else the defence will succeed.

Subsection (2) provides two further defences to a charge of sexual abuse of trust, though they are limited, by virtue of subsection (3), to situations other than those where the position of trust is as described in section 31(6). In other words, they do not apply where the abuse occurs within a family setting. That is because there is considerable doubt whether a position of trust, within the meaning of section 31(6), could ever arise between spouses or those in any other lawful sexual relationship.

Subsection (2)(a) states that it is a defence for the accused to show that the other party was his or her spouse or civil partner at the time of the conduct in the charge.

Subsection (2)(b) provides that, where the parties were not married nor were civil partners but were in a sexual relationship, the accused has a defence if he or she can show that that relationship was in existence immediately before the particular position of trust arose. Subsection (4) provides a test for whether a relationship is sexual, which is to be determined by reference to what a reasonable person would consider, in all the circumstances of the case. This defence has been provided in order that those who are already in a sexual relationship (but who are not married to, or in civil partnership with, each other) at the time that a position of trust arises should be free to continue that relationship while the position of trust persists without committing a criminal offence.

Mentally disordered persons

34 Sexual abuse of trust of a mentally disordered person

(1) If a person ("A")—

(a) intentionally engages in a sexual activity with or directed towards a mentally disordered person ("B"), and

(b) is a person mentioned in subsection (2),

then A commits an offence, to be known as sexual abuse of trust of a mentally disordered person.

(2) Those persons are—

(a) a person providing care services to B,

(b) a person who—

(i) is an individual employed in, or contracted to provide services in or to, or

(ii) not being the Scottish Ministers, is a manager of,

a hospital, independent health care service or state hospital in which B is being given medical treatment.

(3) For the purposes of subsection (1), an activity is sexual in any case if a reasonable person would, in all the circumstances of the case, consider the activity to be sexual.

(4) References in this section to the provision of care services are references to anything done by way of such services—

(a) by,

(b) by an employee of, or

(c) in the course of a service provided or supplied by,

a care service, whether by virtue of a contract of employment or any other contract or in such other circumstances as may be specified in an order made by the Scottish Ministers by statutory instrument.

(5) A statutory instrument containing an order made under subsection (4) is subject to annulment in pursuance of a resolution of the Scottish Parliament.

(6) In this section—

"care service" has the meaning given by subsection (1)(a), (b), (e), (g), (h), (k) and (n) as read with subsections (2), (3), (6), (9), (10), (16) and (27) of section 2 of the Regulation of Care (Scotland) Act 2001 (asp 8),

"hospital" and "independent health care service" have the meanings given in section 32, and

"state hospital" means a hospital provided under section 102(1) of the National Health Service (Scotland) Act 1978 (c. 29).

NOTE

Section 34, which implements recommendation 47, creates the offence of sexual abuse of trust of a mentally disordered person. The definition of "mental disorder" is given in section 42. It is the same definition as in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

Subsection (1) states that a person commits the offence if he or she intentionally engages in a sexual activity with, or directed at, a mentally disordered person. In addition, the perpetrator must be a person of a class mentioned in subsection (2).

Subsection (2) defines those classes of person who are mentioned in subsection (1). They are, essentially, those who provide care to a mentally disordered person within certain settings. The subsection catches those who provide a care service (as defined in subsection (6)) to a mentally disordered person and also those who are employed in, or are contracted to provide services in, or who are a manager of, a hospital in which a mentally disordered person is receiving medical treatment.

Subsection (3) sets out the test for determining whether an activity is sexual for the purposes of subsection (1). It provides an objective test, namely a test which says that an activity is sexual if a reasonable person would, in all the circumstances of the case, consider it to be sexual.

Subsection (4) explains what providing care services means for the purpose of subsection (2). It also gives the Scottish Ministers the power to make an order specifying additional circumstances which will give rise to care services being provided for the purpose of that subsection. Under subsection (5) the Scottish Parliament can annul any such order by passing a resolution for annulment.

Subsection (6) defines certain terms used elsewhere in this section.

35 Sexual abuse of trust of a mentally disordered person: defences

(1) It is a defence to a charge under section 34 that A reasonably believed—

(a) that B did not have a mental disorder, or

(b) that A was not a person specified in section 34(2).

(2) It is a defence to a charge under section 34—

(a) that B was A's spouse or civil partner, or

(b) in a case where A was—

(i) a person specified in section 34(2)(a), that immediately before A began to provide care services to B, a sexual relationship existed between A and B,

(ii) a person specified in section 34(2)(b), that immediately before B was admitted to the hospital (or other establishment) referred to in that provision or (where B has been admitted to that establishment more than once) was last admitted to it, such a relationship existed.

(3) For the purposes of subsection (2)(b), a relationship is sexual in any case if a reasonable person would, in all the circumstances of the case, consider the relationship to be sexual.

NOTE

Section 35 provides four defences to a charge under section 34 (sexual abuse of trust of a mentally disordered person). It implements recommendation 48.

Subsection (1)(b) provides that it is a defence if the accused reasonably believed, at the time of the conduct, that he or she was not a person who fell within any of the classes of person specified in section 34(2).

Subsection (2)(a) states that it is a defence for the accused to show that the other party was his or her spouse or civil partner at the time of the conduct in the charge.

Subsection (2)(b) provides the accused with a defence where a sexual relationship existed between the parties immediately before the accused fell within either of the classes of person specified in section 34(2). The defence is drafted in two parts, to reflect the two classes of person specified in that section. This defence has been provided in order that those who are already in a sexual relationship (but who are not married or in a civil partnership) will not commit a criminal offence by continuing to engage in sexual activity if a professional relationship of care subsequently arises.

Subsection (3) provides a test for whether a relationship is sexual, which is to be determined by reference to what a reasonable person would consider, in all the circumstances of the case.

Part 6

Penalties

Penalties

36 Penalties

(1) A person guilty of an offence mentioned in the first column of schedule 1 is liable—

(a) on summary conviction, to the penalty mentioned in the third column,

(b) on conviction on indictment, to the penalty mentioned in the fourth column.

NOTE

Section 36 introduces schedule 1, which sets out the maximum penalties which may be imposed for each of the offences created by the Bill. For those offences which may be tried under either summary or solemn procedure the maximum penalties are specified in the third and fourth column respectively. Two offences, rape and rape of a young child, can only be tried under solemn procedure (and, furthermore, the trial must take place in the High Court, which is the effect of the amendments in paragraph 5(2) and (3) of schedule 3).

Part 7

Miscellaneous and General

Miscellaneous

37 Consensual acts carried out for sexual gratification

(1) It is not the crime of assault for a person who is aged 16 years or over ("A") to attack another person who is aged 16 years or over ("B") where—

(a) the attack is carried out for, or primarily for, the purpose of providing sexual gratification to A and B or either of them,

(b) A and B agree as to the purpose of the attack,

(c) B consents to the attack being carried out, and

(d) the attack is unlikely to result in serious injury to B (whether or not it does in fact result in such injury).

(2) For the purposes of subsection (1)(d), an attack is unlikely to result in serious injury in any case if a reasonable person would, in all the circumstances of the case, consider that the attack would be unlikely to result in serious injury.

(3) This section—

(a) applies to attacks which take place before the date on which this section comes into force as well as to those which take place on or after that date, but

(b) does not affect convictions for assault before the date on which this section comes into force.

NOTE

Section 37 implements recommendations 57 and 59. It creates a limited exemption from the law of assault. The current position is that the consent of the victim does not prevent an attack being a common law assault, at least when it involves a serious invasion of the victim's body. In English law the House of Lords has held that consent to participation in sado-masochistic practices is not a defence to charges involving serious bodily harm (R v Brown [1994] 1 AC 212). Section 37 has the effect of allowing certain activity of a sado-masochistic nature to be exempt from the common law of assault.

Subsection (1) provides that certain activity will not constitute the crime of assault. There are various conditions which must be satisfied. First, the parties must be aged 16 or over. Secondly, the attack must be carried our primarily for the purpose of providing sexual gratification to one or to both parties, and they must agree beforehand as to the purpose of the attack. Thirdly, the victim must consent to the attack being carried out. Lastly, the attack must be unlikely to result in serious injury to the victim. (If it does in fact result in serious injury that will not mean that the attack is an assault. However, if no serious injury actually results, but it was likely that such injury would occur, then the attack will not be covered by the exemption in this section.)

Subsection (2) sets out the test for determining whether an attack is unlikely to result in serious injury. The test is based on what a reasonable person would consider, in all the circumstances of the case.

Subsection (3) is a transitional measure. It provides that the exemption in subsection (1) will apply to an attack regardless of when it was carried out. However, where an attack has already resulted in a conviction by the date on which this section is brought into force then that conviction will stand.

38 Power to convict for offence other than that charged

(1) If, in a trial—

(a) on an indictment for an offence mentioned in the first column of schedule 2 the jury are not satisfied that the accused committed the offence charged but are satisfied that the accused committed the alternative offence (or as the case may be one of the alternative offences) mentioned in the second column, they may, or

(b) in summary proceedings for an offence mentioned in the first column of that schedule the court is not satisfied that the accused committed the offence charged but is satisfied that the accused committed the alternative offence (or as the case may be one of the alternative offences) mentioned in the second column, it may,

provided that the condition in subsection (2) has been fulfilled, acquit the accused of the charge but find the accused guilty of the alternative offence in respect of which so satisfied (the accused then being liable to be punished accordingly).

(2) The condition is that the accused was given fair notice of the effect which subsection (1) might have in the accused's case.

(3) Without prejudice to the generality of subsection (2), the condition mentioned in that subsection is to be taken to be satisfied where a notice, in a prescribed form, of the alternative verdicts which would be available in the accused's case in the circumstances mentioned in subsection (1) is appended to the indictment or as the case may be to the complaint.

(4) In subsection (3), "prescribed" means prescribed by Act of Adjournal.

(5) A reference in this section to an offence includes a reference to—

(a) an attempt to commit,

(b) incitement to commit,

(c) counselling or procuring the commission of, and

(d) involvement art and part in,

an offence.

NOTE

Section 38 provides that, where a charge is brought under certain provisions in the Bill but the court or the jury are not satisfied that the accused committed the offence in the charge, it may be open to convict the accused of a specified alternative offence. Schedule 2 specifies the available alternatives. This is in implementation of recommendation 62.

We recognise that there is a degree of overlap between certain offences in the Bill and also between those offences and other existing offences, notably at common law. Partly because of this and partly in order to avoid the necessity for the Crown routinely to bring alternative charges we consider that there should be provision to allow a court or a jury, in particular circumstances, to find the accused guilty of an offence other than that which was charged.

Subsection (1) sets out the main limits of this power. First, the court or jury must have at least a reasonable doubt as to whether the accused committed or attempted to commit the offence which is charged. This means that the accused cannot be convicted of it. Secondly, the court or jury must be satisfied (to the normal criminal standard of proof) that the accused committed or attempted to commit one of the other offences specified, in schedule 2 to the Bill, as being an available alternative to the offence which was charged. A third requirement, which stems from the right to a fair trial in article 6 of the European Convention on Human Rights, is that fair notice of the possibility of being convicted of this alternative must have been given: see subsection (2). If all of these conditions are met, then the court or jury must acquit the accused of the offence which was charged but may find him or her guilty of the alternative offence. The person will then be punished in the same way as if the offence of which they are convicted had been charged in the indictment or complaint.

Subsections (3) and (4) set out a procedure by which the requirement to give fair notice may be met. It is not compulsory, and is without prejudice to any other method of giving notice to the accused, but if it is followed then fair notice will be deemed to have been given. A form will be prescribed by Act of Adjournal which the Crown, by appending it to the indictment or complaint, may use to set out the available alternative verdicts in any particular case.

Subsection (5) provides that those charged with attempting, inciting, counselling or procuring the commission of an offence, or with being art and part involved in an offence, may be convicted of an appropriate alternative offence.

39 Exceptions to inciting or being involved art and part in offences under Part 4 or 5

A person ("X") is not guilty of inciting, or being involved art and part in, an offence under Part 4 or 5 if, as regards another person ("Y"), X acts—

(a) for the purpose of—

(i) protecting Y from sexually transmitted infection,

(ii) protecting the physical safety of Y,

(iii) preventing Y from becoming pregnant, or

(iv) promoting Y's emotional well-being by the giving of advice, and

(b) not for the purpose of—

(i) obtaining sexual gratification,

(ii) humiliating, distressing or alarming Y, or

(iii) causing or encouraging the activity constituting the offence or Y's participation in it.

NOTE

Section 39 provides that those involved in counselling or who otherwise give advice in sexual matters will not be guilty of offences under the Bill, provided that they act in good faith. It implements recommendation 52.

The section states that a person who acts for any of the purposes specified in paragraph (a) (which involve the protection of others from sexually transmitted infection or from physical harm, the prevention of pregnancy, and the promotion of others' well-being) will not be guilty of any of the offences in the Bill provided that they are not also acting for any of the purposes in paragraph (b). If this provision were not included, there is a chance that such a person might be found guilty of inciting another person to commit an offence under the Bill or being art and part involved in such an offence. For example, those who counsel and provide contraception for young children will not be found guilty if the child then has intercourse with another young child.

However, in order to claim the exception the person must act in good faith. Paragraph (b) deals with this. If, in the course of giving advice or counselling, a person acts for any of the purposes in this paragraph then the defence will not be available. So the defence is not available, for example, for someone who encourages another person to commit an offence under the Bill but who at the same time provides advice on how to protect them from infection as a result of the unlawful sexual conduct.

40 Common law offences

For all purposes not relating to offences committed before the coming into force of this section—

(a) the common law offences of—

(i) rape,

(ii) clandestine injury to women,

(iii) lewd, indecent or libidinous practice or behaviour, and

(iv) sodomy,

are abolished, and

(b) without prejudice to paragraph (a), in so far as the provisions of this Act regulate any conduct they replace any rule of law regulating that conduct.

NOTE

Section 40 makes provision for offences committed on or after the day on which this section is commenced (which will be done by order made under section 45). Inter alia, it implements recommendations 12(a), 38, and 53.

By paragraph (a), certain common law offences are abolished. This means that, where conduct which would otherwise have constituted one of those offences is committed on or after the date of commencement, no common law offence will have been committed. Instead, the conduct will fall under one of the offences in the Bill. (The exception to this is where the common law offence of sodomy would have been charged. There is no equivalent offence in the Bill.)

The particular common law offences which are to be abolished are: rape, clandestine injury to women, lewd, indecent or libidinous practice or behaviour, and sodomy.

All other common law crimes remain in place. However, paragraph (b) provides a qualification to this. It states that, for any conduct which takes place on or after the commencement of this section and which constitutes an offence under one of the provisions of the Bill, it is only competent to bring a charge under the offence in the Bill. So, it is not competent to charge the offender under the common law nor under any other statutory offence in respect of that conduct. This means, for example, that conduct falling within section 2 must be charged as a sexual assault and not, say, as an indecent assault. However, the provision allows for the theoretical possibility of a conviction for indecent assault for conduct which does not constitute a sexual assault or another offence in the Bill.

41 Continuity of sexual offences

(1) This section applies where, in any trial—

(a) the accused is charged in respect of the same conduct both with an offence under this Act ("the new offence") and with an offence specified in subsection (2) ("the existing offence"),

(b) there is a failure to establish beyond reasonable doubt that—

(i) the time when the conduct took place was after the coming into force of the provision providing for the new offence, and

(ii) the time when the conduct took place was before the abolishment or replacement of or, as the case may be, the coming into force of the repeal of the enactment providing for, the existing offence, and

(c) the court (or, in the case of a trial of an indictment, the jury) is satisfied in every other respect that the accused committed the offences charged.

(2) The offences referred to in subsection (1)(a) are—

(a) rape (at common law),

(b) clandestine injury to women,

(c) lewd, indecent or libidinous practice or behaviour,

(d) any other common law offence which is replaced by an offence under this Act,

(e) an offence under section 3 of the Criminal Law (Consolidation) (Scotland) Act 1995 (c.39) (intercourse of person in position of trust with child under 16),

(f) an offence under section 5(1), (2) or (3) (intercourse with girl under 16) or 6 (indecent behaviour towards girl between 12 and 16) of that Act,

(g) an offence under section 3 of the Sexual Offences (Amendment) Act 2000 (c.44) (abuse of position of trust).

(3) Where this section applies, A may be found guilty—

(a) if the maximum penalty for the existing offence is less that the maximum penalty for the new offence, of the existing offence,

(b) in any other case, of the new offence.

(4) In subsection (3) the reference, in relation to an offence, to the maximum penalty is a reference to the maximum penalty by way of imprisonment or other detention that could be imposed on the accused on conviction of the offence in the proceedings in question.

(5) A reference in this section to an offence includes a reference to—

(a) an attempt to commit,

(b) incitement to commit,

(c) counselling or procuring the commission of, and

(d) involvement art and part in,

an offence.

NOTE

Section 41 is aimed at providing a smooth transition between the current law in respect of sexual offences and the new offences contained in the Bill. It implements recommendation 60.

The main purpose of this section is to make allowance for cases in which the conduct in the charge takes place around the time that the offences contained in the Bill come into force. It may not always be possible to prove exactly when it took place. In view of the effect of section 40, this issue could be determinative in certain situations. For a conviction of an offence under the Bill, it must be proved that the conduct took place after the Bill's commencement. Conversely, a person cannot be convicted of an existing sexual offence unless it can be shown that the conduct took place before commencement. In the absence of a provision such as section 41 some prosecutions could fail simply on the basis that conduct, although proved to have taken place, could not be proved to have taken place before (or, conversely, after) a particular date. Such a failure would be fatal for a charge of an existing offence and also for a charge of an offence in the Bill.

Subsection (1) applies where a person is charged, in respect of the same conduct, with an existing offence and with an offence created by the Bill. (Subsection (2) lists what qualifies as an existing offence.) This is only likely to occur in respect of conduct committed around the time that the Bill comes into force, since otherwise only one or other of the charges will be appropriate. Further, the subsection requires that the court or jury is satisfied, in all respects other than as to the time on which the conduct took place, that the accused committed the offence.

Subsection (3) provides that, where subsection (1) applies, a conviction may result, despite the failure to prove whether the conduct took place before or after the Bill's commencement. It provides that the accused may be found guilty of the new offence in all situations other than those in which the maximum penalty for the existing offence is less that that for the new offence. In that case, the accused may be found guilty of the existing offence. Subsection (4) defines what is meant by the "maximum penalty" for these purposes.

Subsection (5) adds that references in this section to an offence are to be read as including references to attempting to commit the offence, inciting its commission, and being involved art and part in it.

General provisions

42 Interpretation

In this Act—

"mental disorder" has the meaning given by section 13(3),

"penis" and "vagina" have the meanings given by section 1(4).

43 Transitional provision etc.

(1) The Scottish Ministers may, by order made by statutory instrument, make such incidental, supplemental, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes of, or in consequence of, this Act.

(2) Subject to subsection (4), a statutory instrument containing an order under subsection (1) is subject to annulment in pursuance of a resolution of the Scottish Parliament.

(3) An order under subsection (1) may make different provision for different cases or for different classes of case.

(4) An order under subsection (1), if it includes provision amending or repealing an enactment contained in an Act, is not made unless a draft of the statutory instrument containing the order has been—

(a) laid before, and

(b) approved by a resolution of,

the Scottish Parliament.

NOTE

Section 43 deals with transitional and other provisions.

Subsection (1) provides the Scottish Ministers with a power to make an order, by statutory instrument, which may contain such incidental, supplemental, consequential, transitional, transitory, or saving provisions as they consider necessary or expedient.

Under subsection (2) the Scottish Parliament can annul any such order by passing a resolution for annulment. However, subsection (4) qualifies this. It states that where the order includes provision which amends or repeals primary legislation then it does not become law unless it is approved by a resolution of the Scottish Parliament.

Subsection (3) states that an order under subsection (1) may make different provision for different cases or for different classes of case.

44 Minor and consequential amendments and repeals

(1) Schedule 3 to this Act, which makes minor amendments and amendments in consequence of this Act, has effect.

(2) The enactments mentioned in the first column of schedule 4 to this Act are repealed to the extent specified in the second column of that schedule.

45 Short title and commencement

(1) This Act may be cited as the Sexual Offences (Scotland) Act 2008.

(2) This Act (other than this section) comes into force in accordance with provision made by the Scottish Ministers by order made by statutory instrument.

(3) Different provision may be made under subsection (2) for different purposes.

NOTE

Section 45 sets out how the Bill is to be cited. It also provides for its commencement by way of commencement order made by the Scottish Ministers. Such orders may make different provision for different purposes.

SCHEDULE 1

(introduced by section 36)

Penalties

Offence Section introducing offence Maximum penalty on summary conviction Maximum penalty on conviction on indictment

Rape

Sexual assault

Sexual coercion

Coercing a person into being present during a sexual activity

Coercing a person into looking at an image of a sexual activity

Communicating indecently

Causing a person to see or hear an indecent communication

Sexual exposure

Administering a substance for sexual purposes

Rape of a young child

Sexual assault on a young child

Causing a young child to participate in a sexual activity

Causing a young child to be present during a sexual activity

Causing a young child to look at an image of a sexual activity

Communicating indecently with a young child

Causing a young child to see or hear an indecent communication

Having intercourse with an older child

Engaging in sexual activity with or towards an older child

Causing an older child to participate in a sexual activity

Causing an older child to be present during a sexual activity

Causing an older child to look at an image of a sexual activity

Communicating indecently with an older child

Causing an older child to see or hear an indecent communication

Sexual abuse of trust

Sexual abuse of trust of a mentally disordered person
Section 1

Section 2

Section 3

Section 4

Section 5

Section 6(1)

Section 6(2)

Section 7

Section 8

Section 14

Section 15

Section 16

Section 17

Section 18

Section 19(1)

Section 19(2)

Section 21

Section 22

Section 23

Section 24

Section 25

Section 26(1)

Section 26(2)

Section 30

Section 34

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both)

Life imprisonment or a fine (or both)

Life imprisonment or a fine (or both)

Life imprisonment or a fine (or both)

Imprisonment for a term not exceeding 10 years or a fine (or both)

Imprisonment for a term not exceeding 10 years or a fine (or both)

Imprisonment for a term not exceeding 10 years or a fine (or both)

Imprisonment for a term not exceeding 10 years or a fine (or both)

Imprisonment for a term not exceeding 5 years or a fine (or both)

Imprisonment for a term not exceeding 5 years or a fine (or both)

Life imprisonment or a fine (or both)

Life imprisonment or a fine (or both)

Life imprisonment or a fine (or both)

Imprisonment for a term not exceeding 10 years or a fine (or both)

Imprisonment for a term not exceeding 10 years or a fine (or both)

Imprisonment for a term not exceeding 10 years or a fine (or both)

Imprisonment for a term not exceeding 10 years or a fine (or both)

Imprisonment for a term not exceeding 10 years or a fine (or both)

Imprisonment for a term not exceeding 10 years or a fine (or both)

Imprisonment for a term not exceeding 10 years or a fine (or both)

Imprisonment for a term not exceeding 5 years or a fine (or both)

Imprisonment for a term not exceeding 5 years or a fine (or both)

Imprisonment for a term not exceeding 5 years or a fine (or both)

Imprisonment for a term not exceeding 5 years or a fine (or both)

Imprisonment for a term not exceeding 5 years or a fine (or both)

Imprisonment for a term not exceeding 5 years or a fine (or both).

NOTE

This schedule sets out, in the first two columns, all of the offences in the Bill. Against every offence there is set out, in the third and fourth columns, the maximum penalty which may be imposed, respectively, on summary conviction and on conviction on indictment. In respect of the offences of rape (section 1) and rape of a young child (section 14) the prosecution must always be on indictment and so there is no entry in the third column.

SCHEDULE 2 (introduced by section 38) Alternative verdicts

Offence Alternative offence

Rape Sexual assault
Having intercourse with an older child
Assault at common law

Sexual assault
Engaging in sexual activity with or towards an older child
Assault at common law

Sexual coercion
Coercing a person into being present during a sexual activity
Coercing a person into looking at an image of a sexual activity
Communicating indecently
Causing a person to see or hear an indecent communication
Causing an older child to participate in a sexual activity
Assault at common law

Coercing a person into being present during a sexual activity
Sexual coercion
Coercing a person into looking at an image of a sexual activity
Communicating indecently
Causing a person to see or hear an indecent communication
Sexual exposure
Assault at common law

Coercing a person into looking at an image of a sexual activity
Sexual coercion
Coercing a person into being present during a sexual activity
Communicating indecently
Causing a person to see or hear an indecent communication
Sexual exposure
Assault at common law

Communicating indecently
Sexual coercion
Coercing a person into being present during a sexual activity
Coercing a person into looking at an image of a sexual activity
Causing a person to see or hear an indecent communication
Sexual exposure

Causing a person to see or hear an indecent communication
Sexual coercion
Coercing a person into being present during a sexual activity
Coercing a person into looking at an image of a sexual activity
Communicating indecently
Sexual exposure

Rape of a young child
Sexual assault on a young child
Assault at common law

Sexual assault on a young child Assault at common law

Causing a young child to participate in a sexual activity
Causing a young child to be present during a sexual activity
Causing a young child to look at an image of a sexual activity
Communicating indecently with a young child
Causing a young child to see or hear an indecent communication
Assault at common law

Causing a young child to be present during a sexual activity
Causing a young child to participate in a sexual activity
Causing a young child to look at an image of a sexual activity
Communicating indecently with a young child
Causing a young child to see or hear an indecent communication

Causing a young child to look an image of a sexual activity
Causing a young child to participate in a sexual activity
Causing a young child to be present during a sexual activity
Communicating indecently with a young child
Causing a young child to see or hear an indecent communication

Communicating indecently with a young child
Causing a young child to participate in a sexual activity
Causing a young child to be present during a sexual activity
Causing a young child to look at an image of a sexual activity
Causing a young child to see or hear an indecent communication

Causing a young child to see or hear an indecent communication
Causing a young child to participate in a sexual activity
Causing a young child to be present during a sexual activity
Causing a young child to look at an image of a sexual activity
Communicating indecently with a young child

Having intercourse with an older child
Engaging in sexual activity with or towards an older child

Causing an older child to participate in a sexual activity
Causing an older child to be present during a sexual activity
Causing an older child to look at an image of a sexual activity
Communicating indecently with an older child
Causing an older child to see or hear an indecent communication

Causing an older child to be present during a sexual activity
Causing an older child to participate in a sexual activity
Causing an older child to look at an image of a sexual activity
Communicating indecently with an older child
Causing an older child to see or hear an indecent communication

Causing an older child to look at an image of a sexual activity
Causing an older child to participate in a sexual activity
Causing an older child to be present during a sexual activity
Communicating indecently with an older child
Causing an older child to see or hear an indecent communication

Communicating indecently with an older child
Causing an older child to participate in a sexual activity
Causing an older child to be present during a sexual activity
Causing an older child to look at an image of a sexual activity
Causing an older child to see or hear an indecent communication

Causing an older child to see or hear an indecent communication
Causing an older child to participate in a sexual activity
Causing an older child to be present during a sexual activity
Causing an older child to look at an image of a sexual activity
Communicating indecently with an older child

NOTE

This schedule sets out, in the first column, certain offences in the Bill. Against these offences there is set out, in the second column, one or more alternative offences of which a conviction is possible under the conditions set out in section 38. The majority of these alternative offences are offences contained in the Bill but the common law offence of assault is also specified in places. Where an offence is not listed in the first column there is no available alternative to which section 38 will apply.

The selection of appropriate alternative offences is based in large measure on the fact that there is an overlap between certain offences in the Bill. For example, conduct amounting to rape will also fall within the crime of sexual assault. The latter is therefore specified as an alternative to the former, to allow for the situation in which, in the course of the trial, not all of the required elements of rape can be proved but the court or the jury is satisfied that the accused committed a sexual assault. (However, rape is not specified as an alternative to sexual assault as that would allow for conviction of the particular and very serious crime of rape without a charge of rape having been brought. As a rule, the alternative offences are not more serious than the offences which they may replace. In recognition of this, we would expect the courts not to impose a higher sentence under the alternative offence than they may competently impose under the offence in respect of which the accused is acquitted, since this may lead to a breach of Convention rights.)

Similarly, there is an overlap between rape of a young child and sexual assault on a young child; and also between having intercourse with an older child and engaging in sexual activity with or towards an older child. In each pairing, the latter offence is specified as an alternative verdict to a charge of the former.

There is also an overlap between conduct falling within the offences in sections 3 to 6 (and between conduct falling within the corresponding offences involving young children, and again as regards the corresponding offences involving older children). As a result, offences within each of these three groups are specified as alternatives for the other offences in the group. In addition, section 7 (sexual exposure) is specified as an alternative to offences under sections 4 to 6, in recognition of the fact that conduct falling under those latter sections may also amount to sexual exposure.

Finally, the common law offence of assault is specified as an available alternative verdict to charges under sections 1 to 5 and 14 to 16. This is because we consider that, if the conduct cannot be shown to be "sexual" within the meaning of those sections, then it is reasonable to allow for a conviction of assault. This will also allow for a verdict of assault under the aggravation of being carried out with intent to rape.

SCHEDULE 3 (introduced by section 44) Minor and consequential amendments

The Visiting Forces Act 1952 (c.67)

In paragraph 2 of the Schedule to the Visiting Forces Act 1952 (offences referred to in section 3 of that Act)—

(a) in sub-paragraph (a), after the word "rape" there is inserted "(whether at common law or otherwise)",

(b) at the end of sub-paragraph (b) there is added—

"(v) the Sexual Offences (Scotland) Act 2008 (asp 00),".

The Firearms Act 1968 (c.27)

(1) In section 18(3) of the Firearms Act 1968 (carrying firearm with criminal intent), for the word "18" there is substituted "18A".

(2) In Schedule 2 to that Act (offences to which sections 17(2) and 18 of that Act apply), after paragraph 18 there is inserted—

"18A An offence against section 1 of the Sexual Offences (Scotland) Act 2008 (asp 00).".

The Internationally Protected Persons Act 1978 (c.17)

In section 1(1A) of the Internationally Protected Persons Act 1978 (attacks and threats of attacks on protected persons)—

(a) in paragraph (a), at the end there is added "(whether, in Scotland, at common law or otherwise)", and

(b) after paragraph (g) there is added—

"(h) an offence under section 2 or 15 of the Sexual Offences (Scotland) Act 2008 (asp 00), where what was done included a thing mentioned in subsection (2)(a) of the section in question,

(i) an offence under section 3 or 16 of that Act, where an activity involving sexual penetration was caused,

(j) an offence under section 14 of that Act.".

The Criminal Law (Consolidation) (Scotland) Act 1995 (c.39)

(1) The Criminal Law (Consolidation) (Scotland) Act 1995 is amended as follows.

(2) In section 4 (Proceedings and penalties for offences under sections 1 to 3), in each of subsections (1) and (5), for ", 2 or 3" there is substituted "or 2".

The Criminal Procedure (Scotland) Act 1995 (c.46)

(1) The Criminal Procedure (Scotland) Act 1995 is amended as follows.

(2) In section 3(6) (jurisdiction and powers of solemn courts), after the word "rape" there is inserted "(whether at common law or as defined by section 1(1) of the Sexual Offences (Scotland) Act 2008 (asp 00)), rape of a young child (as defined by section 14 of that Act)".

(3) In section 7(8)(b)(i) (district court: jurisdiction and powers), after the word "rape" there is inserted "(whether at common law or as defined by section 1(1) of the Sexual Offences (Scotland) Act 2008 (asp 00)), rape of a young child (as defined by section 14 of that Act)".

(4) In section 19A(6) (samples etc. from persons convicted of sexual and violent crimes), in the definition of "relevant sexual offence"—

(a) in paragraph (a), after the word "rape" there is inserted "(whether at common law or as defined by section 1(1) of the Sexual Offences (Scotland) Act 2008 (asp 00))",

(b) the word "and" which immediately follows paragraph (h) is repealed, and

(c) after paragraph (i) there is inserted "and

(j) any offence which consists of a contravention of any of the following provisions of the Sexual Offences (Scotland) Act 2008 (asp 00)—

(i) section 2 (sexual assault),

(ii) section 3 (sexual coercion),

(iii) section 4 (coercing a person into being present during a sexual activity),

(iv) section 5 (coercing a person into looking at an image of a sexual activity),

(v) section 6(1) (communicating indecently),

(vi) section 6(2) (causing a person to see or hear an indecent communication),

(vii) section 7 (sexual exposure),

(viii) section 14 (rape of a young child),

(ix) section 15 (sexual assault on a young child),

(x) section 16 (causing a young child to participate in a sexual activity),

(xi) section 17 (causing a young child to be present during a sexual activity),

(xii) section 18 (causing a young child to look at an image of a sexual activity),

(xiii) section 19(1) (communicating indecently with a young child),

(xiv) section 19(2) (causing a young child to see or hear an indecent communication),

(xv) section 21 (having intercourse with an older child),

(xvi) section 22 (engaging in sexual activity with or towards an older child),

(xvii) section 23 (causing an older child to participate in a sexual activity),

(xviii)section 24 (causing an older child to be present during a sexual activity),

(xix) section 25 (causing an older child to look at an image of a sexual activity),

(xx) section 26(1) (communicating indecently with an older child),

(xxi) section 26(2) (causing an older child to see or hear an indecent communication),

(xxii) section 30 (sexual abuse of trust) but only if the condition set out in section 31(6) of that Act is fulfilled,

(xxiii)section 34 (sexual abuse of trust of a mentally disordered person);".

(5) In section 24A (bail conditions: remote monitoring of restrictions on movements), in each of subsections (2)(a), (3) and (5)(a), after the word "rape" there is inserted "(whether at common law or as defined by section 1(1) of the Sexual Offences (Scotland) Act 2008 (asp 00))".

(6) In section 78(2) (notice of special defences), for the words from "coercion" to "consent" there is substituted "or coercion".

(7) In section 210A(10) (extended sentences for sex and violent offenders), in the definition of "sexual offence"—

(a) in paragraph (i), after the word "rape" there is inserted "(whether at common law or as defined by section 1(1) of the Sexual Offences (Scotland) Act 2008 (asp 00))", and

(b) after paragraph (xxvi) there is inserted "and

(xxvii) an offence which consists of a contravention of any of the following provisions of the Sexual Offences (Scotland) Act 2008 (asp 00)—

(A) section 2 (sexual assault),

(B) section 3 (sexual coercion),

(C) section 4 (coercing a person into being present during a sexual activity),

(D) section 5 (coercing a person into looking at an image of a sexual activity),

(E) section 6(1) (communicating indecently),

(F) section 6(2) (causing a person to see or hear an indecent communication),

(G) section 7 (sexual exposure),

(H) section 8 (administering a substance for sexual purposes),

(I) section 14 (rape of a young child),

(J) section 15 (sexual assault on a young child),

(K) section 16 (causing a young child to participate in a sexual activity),

(L) section 17 (causing a young child to be present during a sexual activity)

(M) section 18 (causing a young child to look at an image of a sexual activity),

(N) section 19(1) (communicating indecently with a young child),

(O) section 19(2) (causing a young child to see or hear an indecent communication),

(P) section 21 (having intercourse with an older child),

(Q) section 22 (engaging in sexual activity with or towards an older child),

(R) section 23 (causing an older child to participate in a sexual activity),

(S) section 24 (causing an older child to be present during a sexual activity),

(T) section 25 (causing an older child to look at an image of a sexual activity),

(U) section 26(1) (communicating indecently with an older child),

(V) section 26(2) (causing an older child to see or hear an indecent communication),

(W) section 30 (sexual abuse of trust),

(X) section 34 (sexual abuse of trust of a mentally disordered person);".

(8) In section 288C(2) (prohibition of personal conduct of defence in cases of certain sexual offences)—

(a) in paragraph (a), after the word "rape" there is inserted "(whether at common law or as defined by section 1(1) of the Sexual Offences (Scotland) Act 2008 (asp 00))", and

(b) after paragraph (j) there is added—

"(k) an offence under any of the following provisions of the Sexual Offences (Scotland) Act 2008 (asp 00)—

(i) section 2 (sexual assault),

(ii) section 3 (sexual coercion),

(iii) section 4 (coercing a person into being present during a sexual activity),

(iv) section 5 (coercing a person into looking at an image of a sexual activity),

(v) section 6(1) (communicating indecently),

(vi) section 6(2) (causing a person to see or hear an indecent communication),

(vii) section 7 (sexual exposure),

(viii) section 14 (rape of a young child),

(ix) section 15 (sexual assault on a young child),

(x) section 16 (causing a young child to participate in a sexual activity),

(xi) section 17 (causing a young child to be present during a sexual activity),

(xii) section 18 (causing a young child to look at an image of a sexual activity),

(xiii) section 19(1) (communicating indecently with a young child),

(xiv) section 19(2) (causing a young child to see or hear an indecent communication),

(xv) section 21 (having intercourse with an older child),

(xvi) section 22 (engaging in sexual activity with or towards an older child),

(xvii)section 23 (causing an older child to participate in a sexual activity),

(xviii)section 24 (causing an older child to be present during a sexual activity),

(xix) section 25 (causing an older child to look at an image of a sexual activity),

(xx) section 26(1) (communicating indecently with an older child),

(xxi) section 26(2) (causing an older child to see or hear an indecent communication),

(xxii)section 30 (sexual abuse of trust) but only if the condition set out in section 31(6) of that Act is fulfilled,

(xxiii)section 34 (sexual abuse of trust of a mentally disordered person), and

(l) attempting to commit any of the offences set out in paragraph (k) above.".

(9) In Schedule 1 (offences against children under the age of 17 years to which special provisions apply)—

(a) after paragraph 1 there is inserted—

"1A Any offence under section 14 or 21 of the Sexual Offences (Scotland) Act 2008 (asp 00).

1B Any offence under section 15 or 22 of that Act.

1C Any offence under section 30 of that Act towards a child under the age of 17 years but only if the condition set out in section 31(6) of that Act is fulfilled.", and

(b) after paragraph 4 there is inserted—

"4A Any offence under section 4, 5, 6 or 7 of the Sexual Offences (Scotland) Act 2008 (asp 00) towards a child under the age of 17 years.

4B Any offence under any of sections 16 to 19 or 23 to 26 of that Act.".

(10) In paragraph 3 of Schedule 5A (offences for purposes of section 205A of that Act), at the end there is added "(in either case, whether at common law or otherwise)".

The United Nations Personnel Act 1997 (c.13)

In section 1(2)(a) of the United Nations Personnel Act 1997 (attacks on UN workers), after the word "rape" there is inserted "(in Scotland, whether at common law or as defined by section 1(1) of the Sexual Offences (Scotland) Act 2008 (asp 00))".

The Terrorism Act 2000 (c.11)

In each of sections 63B(2)(a) (terrorist attacks abroad by British nationals or residents: jurisdiction) and 63C(2)(a) (terrorist attacks abroad on UK nationals, residents and diplomatic staff etc: jurisdiction), after the word "rape" there is inserted "(in Scotland, whether at common law or as defined by section 1(1) of the Sexual Offences (Scotland) Act 2008 (asp 00))".

The Sexual Offences Act 2003 (c.42)

In Schedule 3 to the Sexual Offences Act 2003 (sexual offences for purposes of Part 2 of that Act)—

(a) in paragraph 36, at the end there is added "at common law",

(b) after paragraph 59C there is inserted—

"59D An offence under section 1 of the Sexual Offences (Scotland) Act 2008 (asp 00) (rape).

59E An offence under section 2 of that Act (sexual assault).

59F An offence under section 3 of that Act (sexual coercion).

59G An offence under section 4 of that Act (coercing a person into being present during a sexual activity).

59H An offence under section 5 of that Act (coercing a person into looking at an image of a sexual activity).

59I An offence under section 6(1) of that Act (communicating indecently).

59K An offence under section 6(2) of that Act (causing a person to see or hear an indecent communication).

59L An offence under section 7 of that Act (sexual exposure).

59M An offence under section 8 of that Act (administering a substance for sexual purposes).

59N An offence under section 14 of that Act (rape of a young child).

59O An offence under section 15 of that Act (sexual assault on a young child).

59P An offence under section 16 of that Act (causing a young child to participate in a sexual activity).

59Q An offence under section 17 of that Act (causing a young child to be present during a sexual activity).

59R An offence under section 18 of that Act (causing a young child to look at an image of a sexual activity).

59S An offence under section 19(1) of that Act (communicating indecently with a young child).

59T An offence under section 19(2) of that Act (causing a young child to see or hear an indecent communication).

59U An offence under section 21 of that Act (having intercourse with an older child).

59V An offence under section 22 of that Act (engaging in sexual activity with or towards an older child).

59W An offence under section 23 of that Act (causing an older child to participate in a sexual activity).

59X An offence under section 24 of that Act (causing an older child to be present during a sexual activity).

59Y An offence under section 25 of that Act (causing an older child to look at an image of a sexual activity).

59Z An offence under section 26(1) of that Act (communicating indecently with an older child).

59ZA An offence under section 26(2) of that Act (causing an older child to see or hear an indecent communication).

59ZB An offence under section 30 of that Act (sexual abuse of trust) where (either or both)—

(a) the offender is 20 or over,

(b) the condition set out in section 31(6) of that Act is fulfilled.

59ZC An offence under section 34 of that Act (sexual abuse of trust of a mentally disordered person).", and

(c) in paragraph 60, for the words "59C" there is substituted "59ZC".

The Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)

In section 326(4)(c) of the Mental Health (Care and Treatment) (Scotland) Act 2003, for "310 or 313(5)" there is substituted "or 310".

The Gambling Act 2005 (c.19)

In Schedule 7 to the Gambling Act 2005 ("relevant offences" for purposes of that Act), after paragraph 18C there is inserted—

"18D An offence under any of the following provisions of the Sexual Offences (Scotland) Act 2008 (asp 00)—

(a) section 1 (rape),

(b) section 2 (sexual assault),

(c) section 3 (sexual coercion),

(d) section 4 (coercing a person into being present during a sexual activity),

(e) section 5 (coercing a person into looking at an image of a sexual activity),

(f) section 6(1) (communicating indecently),

(g) section 6(2) (causing a person to see or hear an indecent communication),

(h) section 7 (sexual exposure),

(i) section 14 (rape of a young child),

(j) section 15 (sexual assault on a young child),

(k) section 16 (causing a young child to participate in a sexual activity),

(l) section 17 (causing a young child to be present during a sexual activity),

(m) section 18 (causing a young child to look at an image of a sexual activity),

(n) section 19(1) (communicating indecently with a young child),

(o) section 19(2) (causing a young child to see or hear an indecent communication),

(p) section 21 (having intercourse with an older child),

(q) section 22 (engaging in sexual activity with or towards an older child),

(r) section 23 (causing an older child to participate in a sexual activity),

(s) section 24 (causing an older child to be present during a sexual activity),

(t) section 25 (causing an older child to look at an image of a sexual activity),

(u) section 26(1) of that Act (communicating indecently with an older child),

(v) section 26(2) (causing an older child to see or hear an indecent communication),

(w) section 30 (sexual abuse of trust) but only if the condition set out in section 31(6) of that Act is fulfilled,

(x) section 34 (sexual abuse of trust of a mentally disordered person).".

The Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14)

In schedule 1 to the Protection of Vulnerable Groups (Scotland) Act 2007 (relevant offences for purposes of Part 1 of that Act), at the end there is added—

"(w) an offence under section 14 (rape of a young child) of the Sexual Offences (Scotland) Act 2008 (asp 00),

(x) an offence under section 15 (sexual assault on a young child) of that Act,

(y) an offence under section 16 (causing a young child to participate in a sexual activity) of that Act,

(z) an offence under section 17 (causing a young child to be present during a sexual activity) of that Act,

(za) an offence under section 18 (causing a young child to look at an image of a sexual activity) of that Act,

(zb) an offence under section 19(1) (communicating indecently with a young child) of that Act,

(zc) an offence under section 19(2) (causing a young child to see or hear an indecent communication) of that Act,

(zd) an offence under section 21 (having intercourse with an older child) of that Act,

(ze) an offence under section 22 (engaging in sexual activity with or towards an older child) of that Act,

(zf) an offence under section 23 (causing an older child to participate in a sexual activity) of that Act,

(zg) an offence under section 24 (causing an older child to be present during a sexual activity) of that Act,

(zh) an offence under section 25 (causing an older child to look at an image of a sexual activity) of that Act,

(zi) an offence under section 26(1) of that Act (communicating indecently with an older child) of that Act,

(zj) an offence under section 26(2) (causing an older child to see or hear an indecent communication) of that Act,

(zk) an offence under section 30 (sexual abuse of trust) of that Act.".

NOTE

This schedule amends provisions in various enactments. It does so in consequence of the provisions on the Bill. Except where specifically noted below, the aim of the amendments is to bring existing legislation into line with the new offences created in the Bill. Thus, references in existing law to rape may require to be amended so that they include reference to the offence of rape in section 1 of the Bill. Also, where legislation defines certain consequences which follow conviction of an existing sexual offence, it is necessary to provide for the consequences of conviction of the corresponding offence or offences in the Bill. A good example of this is in paragraph 8, which amends the list of offences conviction of which will result in the offender being subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 (colloquially referred to as their being placed on the sex offenders register). Our aim in all cases has been to preserve the policy which lies behind the legislation which is to be amended.

There are three amendments whose rationale differs from what is outlined above:

(i) The amendments in paragraph 5(2) and (3) have the effect of requiring prosecutions for rape (section 1) and rape of a young child (section 14) to be brought in the High Court.

(ii) Paragraph 5(6) amends section 78 of the Criminal Procedure (Scotland) Act 1995, which deals with special defences in solemn proceedings, so that it no longer applies to the defence of consent. This is to be read with the provision in schedule 4 which repeals subsections (2A) and (2B) of section 78. (The corresponding provision relating to summary proceedings, in section 149A of the 1995 Act, is also repealed by schedule 4.)

(iii) Paragraph 9 amends a provision in the Mental Health (Care and Treatment) (Scotland) Act 2003 in consequence of the repeal, in schedule 4, of section 313 of that Act.

SCHEDULE 4 (introduced by section 44) Repeals

Enactment Extent of repeal

Visiting Forces Act 1952 (c.67)

Criminal Law (Consolidation) (Scotland) Act 1995 (c.39)

Criminal Procedure (Scotland) Act 1995 (c.46)

Crime and Punishment (Scotland) Act 1997 (c.48)

Sexual Offences (Amendment) Act 2000 (c.44)

Regulation of Care (Scotland) Act 2001 (asp 8)

Convention Rights (Compliance) (Scotland) Act 2001 (asp 7)

Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9)

Sexual Offences Act 2003 (c.42)

Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)

Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14)

In the Schedule, paragraph 2(b)(i) and (ii).

Sections 3, 5 and 6.

Section 7(2) and (3).

Section 13(1), (2), (5) to (8A) and (11).

Section 14.

Section 78(2A) and (2B).

Section 149A.

In section 210A(10), in the definition of "sexual offence", paragraphs (vii), (xx) and (xxi).

In Schedule 1, paragraph 18(3).

The whole Act.

In schedule 3, paragraph 25.

In section 10, paragraph (b) and the word "and" immediately before that paragraph.

Section 6(1)(b) and (2).

In Schedule 6, paragraph 33.

Sections 311 to 313 and 319.

In schedule 1, paragraph 1(p).

NOTE

This schedule repeals provisions of various enactments.

Paragraph 2(b)(i) and (ii) of the Schedule to the Visiting Forces Act 1952 refers to two enactments which have been repealed.

The repeals of various sections of the Criminal Law (Consolidation) (Scotland) Act 1995 implement recommendations 12(b) and 54.

Sections 78(2A) and (2B) and 149A of the Criminal Procedure (Scotland) Act 1995 are repealed in implementation of recommendation 8. The other repeal in respect of this Act removes references in section 210A to the offence of shameless indecency (which, as declared by the court in Webster v Dominick 2005 JC 65, is not an offence in Scots law) and to offences under section 3 of the Sexual Offences (Amendment) Act 2000 and section 311(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003. As mentioned below, both of those sections are to be repealed by the Bill.

Paragraph 18(3) of Schedule 1 to the Crime and Punishment (Scotland) Act 1997 amends section 7(3) of the Criminal Law (Consolidation) (Scotland) Act 1995, which, as noted above, is to be repealed by the Bill. The amending provision therefore falls to be repealed.

The Sexual Offences (Amendment) Act 2000 was substantially repealed, for jurisdictions other than Scotland, by the Sexual Offences Act 2003. The remainder falls to be repealed as a consequence of the Bill.

Paragraph 25 of schedule 3 to the Regulation of Care (Scotland) Act 2001 amends section 4 of the Sexual Offences (Amendment) Act 2000. As mentioned above, that Act is to be repealed by the Bill and so the amending provision falls to be repealed too.

Section 10(b) of the Convention Rights (Compliance) (Scotland) Act 2001 amends section 13(5) of the Criminal Law (Consolidation) (Scotland) Act 1995. As noted above, that section is to be repealed and so the amending provision falls to be repealed too.

Section 6(1)(b) and (2) of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 inserted sections 78(2A) and (2B) and 149A into the Criminal Procedure (Scotland) Act 1995. As mentioned above, those sections are to be repealed and so the amending provision falls to be repealed too.

Paragraph 33 of Schedule 6 to the Sexual Offences Act 2003 amends section 5(6) of the Criminal Law (Consolidation) (Scotland) Act 1995. As noted above, that section is to be repealed and so the amending provision falls to be repealed too.

Sections 311 and 313 of the Mental Health (Care and Treatment) (Scotland) Act 2003 are to be repealed in implementation of recommendations 39 and 46. Section 312 of that Act inserts paragraph (xxi) into the definition of "sexual offence" in section 210A(10) of the Criminal Procedure (Scotland) Act 1995. That paragraph is to be repealed by the Bill. Section 319 of the 2003 Act applies certain time limits to summary proceedings taken under sections 311 and 313 of the Act. As those sections are to be repealed, the time limits are no longer needed.

Paragraph 1(p) of schedule 1 to the Protection of Vulnerable Groups (Scotland) Act 2007 contains a reference to section 3 of the Sexual Offences (Amendment) Act 2000. As mentioned above, that Act is to be repealed by the Bill and so the reference is no longer needed.

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