Scottish Law Commission (Reports)

SCOTTISH LAW COMMISSION

Report on Rape and Other Sexual Offences

Report on a reference under section 3(1)(e) of the Law Commissions Act 1965

Laid before the Scottish Parliament by the Scottish Ministers

December 2007

SCOT LAW COMSCOT LAW COM No 209

SE/2007/243

EDINBURGH: The Stationery Office

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The Scottish Law Commission was set up by section 2 of the Law Commissions Act 1965^[1] for the purpose of promoting the reform of the law of Scotland. The Commissioners are:

The Honourable Lord Drummond Young, Chairman

Professor George L Gretton

Professor Gerard Maher, QC

Professor Joseph M Thomson

Mr Colin J Tyre, QC.

The Chief Executive of the Commission is Mr Michael Lugton. Its offices are at 140 Causewayside, Edinburgh EH9 1PR.

Tel: 0131 668 2131

Fax: 0131 662 4900

Email: info@scotlawcom.gov.uk

Or via our website at www.scotlawcom.gov.uk – select "Contact"

NOTES

1. For those wishing further copies of this paper it may be downloaded from our website or purchased from TSO Scotland Bookshop.

2. If you have any difficulty in reading this document, please contact us and we will do our best to assist. You may wish to note that an accessible electronic version of this document is available on our website.

SCOTTISH LAW COMMISSION

Report on a reference under section 3(1)(e) of the Law Commissions Act 1965

Report on Rape and Other Sexual Offences

To: Mr Kenny MacAskill MSP, Cabinet Secretary for Justice

We have the honour to submit to the Scottish Ministers our Report on Rape and Other Sexual Offences.

(Signed) JAMES DRUMMOND YOUNG, Chairman

GEORGE GRETTON

GERARD MAHER

JOSEPH M THOMSON

COLIN TYRE

Michael Lugton, Chief Executive

28 November 2007

Contents

	Paragraph
Part 1 Introduction
Terms of reference	1.1
Background to the reference	1.3
Scope of the project	1.10
Prosecution policy and practice	1.12
Prostitution	1.13
Pornography	1.14
Adult entertainment	1.16
What are sexual offences?	1.17
Guiding principles for reforming the law of sexual offences	1.22
Clarity of the law	1.24
Respect for sexual autonomy	1.25
Protective principle	1.28
Distinctions based on sexual orientation or gender	1.29
Other types of legal and social intervention	1.30
European Convention on Human Rights	1.31
A note on terminology: victims and complainers	1.32
Structure of the Report and outline of our recommendations	1.33
Legislative competence	1.34
Part 2 Consent
Consent and sexual offences	2.1
Alternative approaches to defining sexual offences	2.6
Determining consent	2.7
Ambiguity of consent	2.10
Problems in the use of consent as a defence	2.11
Stereotypes of women's sexuality	2.12
Focus on the victim	2.13
Should the law define consent?	2.20
Refining consent: an active, not passive, model of consent	2.23
General definition of consent	2.36
Particular definitions of consent as free agreement	2.43
Nature and status of items in the list	2.45
Should there be 'negative' indicators?	2.51
Non-exhaustive nature of the list of particular definitions	2.54
Comments on the particular definitions	2.60
Lack of capacity to consent as a result of intoxication	2.62
Agreement or submission because of violence, or threats of violence, against the victim or another person	2.66
Agreement or submission because of unlawful detention	2.70
Agreement or submission as a result of deception as to the nature and purpose of the sexual act	2.73
Agreement or submission as a result of deception as to the identity of the other person	2.76
Expression of agreement made by someone other than the victim	2.78
Sexual activity with a person who is asleep or unconscious	2.80
Limited or specific consent	2.82
Withdrawal of consent	2.85
Notice of a 'defence' of consent	2.87
Part 3 Sexual assaults
Introduction	3.1
Should there be a separate category of sexual assaults?	3.4
Undifferentiated sexual assaults	3.9
Distinguishing types of sexual assault	3.10
Rape	3.23
Actus reus	3.30
Penalties and jurisdiction	3.33
Common law and statutory provisions on rape	3.34
Sexual penetration and sexual assault	3.36
Defining 'sexual'	3.42
Meaning of penetration	3.45
Common law crime of indecent assault	3.46
Coercing sexual conduct	3.48
Other forms of coercive sexual conduct	3.55
Administering stupefying substance for sexual purpose	3.64
Mens rea	3.67
Mens rea as to the act	3.68
Mens rea as to consent	3.69
Medical exemption	3.79
Part 4 Offences based on a protective principle
Introduction	4.1
A. Children and young persons	4.11
Common law	4.12
Statutory offences	4.14
Gender neutrality	4.17
The 'age of consent'	4.18
Offences involving sexual activity with young children	4.21
What age?	4.22
The role of consent	4.26
Strict liability	4.32
Defences	4.40
Offences involving children under 16	4.43
The wrongfulness of (consenting) sex with children	4.45
Application of the offences where both parties are under 16	4.52
Children under 13	4.58
Defences	4.59
Mistake as to age	4.60
Marriage; civil partnerships	4.65
Burden of proof	4.71
Proximity of age defence	4.75
Problems with proof of age	4.79
Offences concerning indecent conduct	4.83
B. Persons with mental disorder	4.88
An offence against sexual exploitation of people with mental disorder?	4.97
C. Persons in positions of trust	4.101
(1) Abuse of trust in family settings	4.110
Age of the parties	4.111
Definition of relationship of trust	4.112
Types of prohibited conduct	4.114
Defences	4.116
(2) Breach of trust involving persons with a mental disorder	4.121
Defences	4.123
(3) Breach of trust in other settings	4.126
Immunity for counselling	4.135
Part 5 Offences based on public morality
Introduction	5.1
Matters on which we make no recommendations for reform	5.2
Incest	5.3
Bestiality	5.4
Homosexual offences	5.5
Public indecency and sexual exposure	5.11
Sado-masochistic practices	5.19
Necrophilia	5.28
Part 6 Evidence and sexual offences
Introduction	6.1
Corroboration and sexual offences	6.2
Is corroboration necessary for sexual offences?	6.3
Corroboration by distress	6.6
'Mutual' corroboration: the Moorov doctrine	6.15
Corroboration in respect of procedural or incidental facts or of different parts of a course of acting	6.19
Sexual history evidence	6.24
Further topics in the law of evidence	6.34
Part 7 Miscellaneous issues
Introduction	7.1
Commencement and Transitional Provisions	7.2
Continuity of the law	7.7
Penalties	7.11
Jurisdiction	7.14
Alternative verdicts	7.18
Part 8 List of recommendations
Appendix A
Draft Sexual Offences (Scotland) Bill	A
Appendix B
List of consultees who submitted written comments on Discussion Paper No 131	B

List of Abbreviations

Alison	A Alison, Principles of Criminal Law (1832; reprinted, 1989)
Draft Criminal Code	E Clive, C Gane, P Ferguson and R A A McCall Smith, A Draft Criminal Code for Scotland with Commentary (published under the auspices of the Scottish Law Commission, 2003)
Gane	C Gane, Sexual Offences (1992)
Gordon	Sir Gerald H Gordon QC, The Criminal Law of Scotland (3rd edn ed Michael G A Christie, vol I, 2000; vol II, 2001)
Hume	Baron Hume, Commentaries on the Law of Scotland Respecting Crimes (4th edn 1844; reprinted, 1986)
Setting the Boundaries	Home Office, Setting the Boundaries: Reforming the law on sex offences (2000)
Stair Memorial Encyclopaedia	The Laws of Scotland — Stair Memorial Encyclopaedia 25 vols (1986-1995 with updates)
Temkin	J Temkin, Rape and the Legal Process (2nd edn, 2002)

Part 1 Introduction

Terms of reference

1.1      In June 2004 we received the following reference^[2] from the Scottish Ministers:

"To examine the law relating to rape and other sexual offences and the evidential requirements for proving such offences and to make recommendations for reform."

1.2      On receiving the reference we engaged in various processes of consultation, which included participation in seminars and discussion with several professional bodies. We also set up an Advisory Group with a membership from a wide range of backgrounds and interests.^[3] The Advisory Group's contribution was invaluable in shaping the direction of the project and we wish here to repeat our expression of thanks to the Group members for giving so much of their time to consult with us. We published our Discussion Paper in January 2006.^[4] We received a considerable level of response to the questions and proposals contained in the Discussion Paper, and we are particularly struck by the number of responses from people writing in a private capacity.^[5] We recognise that this project involves not only matters of legal principles and rules but also important issues of social policy, and it was important for us in formulating our final recommendations for reform of the law that we were able to take into account a wide range of perspectives. We are grateful to all the people and organisations who responded to our Discussion Paper.

Background to the reference

1.3      The immediate background to the reference was the existence of public, professional and academic concern as a consequence of certain high-profile decisions of the High Court of Justiciary. In Lord Advocate's Reference (No 1 of 2001),^[6] the Court held that the crime of rape was defined as a man having sexual intercourse with a woman without her consent. The Court ruled that, despite 19^th Century decisions to the contrary, it was not a requirement that the man forcibly overcame the will of the woman. The focus of the Court's decision was the actus reus (the actings which constitute the crime) of rape and the Court did not deal with issues such as the mens rea (the state of mind of the perpetrator) or with proof of lack of consent. These issues were considered in the later decisions of McKearney v HM Advocate^[7] and Cinci v HM Advocate,^[8] decisions which were widely, if not entirely accurately, interpreted as pointing to the existence of major problems for the Crown in proving the accused's lack of belief in the consent of the victim.
1.4      In addition to the issues arising from these recent decisions of the High Court, other more general aspects of the Scots law on sexual offences had been identified as requiring consideration and reform. Much of the law derives from times when sexual attitudes were very different from those of contemporary society. In 1976 an Act consolidated the law on various sexual offences based on 11 statutes passed between 1885 and 1975. For over 300 years the law on incest was to be found in an Act of 1567. That law was modernised but not entirely altered by the Incest and Related Offences (Scotland) Act 1986. Prohibitions on certain forms of homosexual conduct can be traced back to court decisions in the sixteenth century.^[9]
1.5      Furthermore, while some of the law on sexual offences is based on statute, various offences, including rape and indecent assault, remain governed by the common law. There are limits on how far law can be altered by means of judicial decision, even if it is clear that the law no longer reflects contemporary social values. For example, there was, from at least the late 18^th Century, a rule that a husband could not be convicted of raping his wife. That rule was abolished by judicial decision but only in 1989.^[10] A more far-reaching change to the law of rape, as for example extending the types of prohibited conduct to include anal or oral penetration of the victim, would be unlikely to result from judicial development of the common law.^[11]
1.6      In recent times there have been substantial reviews in other jurisdictions of the law on sexual offences. In the 1980s radical reform of the law was introduced in legal systems in the USA, Canada, and Australia. These reforms were often influenced by writings, usually from a feminist perspective, about what should be appropriate sexual conduct and attitudes in society. The aim of such law reform was not merely to make the law more coherent in terms of legal ideas but also to make a public statement of the proper values to govern sexual relationships. The reforms sought to change the ways in which sexual offences were defined by the law (for example, by having no separate category of rape or by defining sexual assault as part of the wider law on assaults) and to clarify the manner in which consent to sexual activity should be understood (by statutory statements of situations which are to be treated as indicating the absence of consent).^[12]
1.7      Over the last decade there has been further consideration of sexual offences in various jurisdictions, most recently in the Australian Capital Territory, South Africa, Victoria, and England and Wales. In 2001, the Law Reform Commission of the Australian Capital Territory published its Report on the Laws Relating to Sexual Assault.^[13] The Report examined the definitions of sexual assault and sexual intercourse, offences against children, issues of consent and mens rea as well as procedure and evidence. The South African Law Commission undertook a comprehensive review of the legal, procedural and investigative provisions relating to sexual offences, the results of which are published in its 2002 Sexual Offences Report.^[14] We also took particular notice of the work of the Victorian Law Reform Commission. In 2004 the Commission published a report on sexual offences, which was followed by an implementation report in 2006.^[15] We consider the Commission's proposals on consent and the impact of their implementation in chapter 2 below.
1.8      Two further developments are of special significance to our own project. The first was the passing of the Sexual Offences Act 2003, which established a new legal framework for sexual offences in England and Wales.^[16] Part 1 of the 2003 Act contains a comprehensive set of provisions on sexual offences.^[17] A feature of the 2003 Act which was of particular interest for this project is the model of consent used in the definition of various offences. Although we have not agreed with all of the detail of that model, it has been influential in guiding our thinking on how Scots law should approach this important issue.^[18] The 2003 Act followed a review of the law on sexual offences by the Home Office, the results of which are published in a report, Setting the Boundaries: Reforming the law on sex offences.^[19] That report contains a wide-ranging discussion of the principles and ideas which are relevant to the reform of the law, and we have found the report to be of considerable value during this project.
1.9      The second development of significance for our project was the completion of a Draft Criminal Code for Scotland by a group of academic lawyers. In order to encourage its wider consideration, we published the draft Code for consultation on behalf of the group in September 2003.^[20] The Code contained various provisions on sexual offences, some of which differed from the existing common law. These provisions embody an impressive amount of industry and reflection, and we have referred to the Code's provisions as useful models at various places throughout this Report.^[21]

Scope of the project

1.10      Our terms of reference refer to the law relating to rape and other sexual offences and to evidence. There are two distinct elements to these terms. First, we understand the reference to sexual offences as meaning the substantive law, that is, with how these offences are defined in terms of the actus reus and mens rea, and defences to these crimes. Secondly the law of evidence is concerned with how these offences are to be proved. We do not interpret our terms of reference as including questions of pre-trial or trial procedure except as incidental to the matters of substantive law or evidence. To determine the exact scope of the project it is necessary to consider what is included within the idea of sexual offences, and we discuss this issue later.^[22]
1.11      There are certain issues relating to sexual offences which are beyond the scope of this project because strictly speaking they are outwith our terms of reference or because they have recently been, or are currently being, reviewed by other bodies. We give a brief summary of each of these areas below.

Prosecution policy and practice

1.12      This project is not concerned with prosecution policy and practice. In 2004 the Crown Office and Procurator Fiscal Service started a review of the way in which sexual offences are investigated and prosecuted. That review included an examination of the use of evidence (including the operation of statutory provisions relating to evidence), the treatment of victims, and departmental and prosecution policy in respect of sexual offences. The report of the review was published in 2006.^[23] The report makes 50 recommendations, some of which have already been implemented. The implementation of the remaining recommendations is scheduled to be completed by mid-2009.

Prostitution

1.13      We do not consider the law on prostitution in this Discussion Paper. There are two reasons for this. First, it is not entirely clear that offences relating to prostitution are properly speaking sexual offences, as opposed to offences against public disorder or involving public nuisance.^[24] Furthermore the law on prostitution was under review by an Expert Group on Prostitution, which was set up by the Scottish Executive in 2003. The remit of the Group was to consider "the legal, policing, health and social justice issues surrounding prostitution in Scotland."^[25] The Group published a report in December 2004.^[26] The Scottish Executive carried out a consultation on the proposals of the Expert Group, and published an analysis of responses in November 2005. The Prostitution (Public Places) (Scotland) Act 2007, which gives effect to some but not all of the recommendations of the Expert Group, was passed by the Scottish Parliament in February 2007.^[27] Given the wide remit of the Expert Group we decided that it was neither necessary nor appropriate to include the law on prostitution within our own project.

Pornography

1.14      There is a very wide range of issues involved in the interaction of the criminal law and pornography. These extend to questions such as whether criminalising pornography is compatible with freedom of expression, whether certain categories of pornography should be permitted or licensed, and whether pornography should be criminalised because it typically presents wrongful or harmful images of women. These, and other, questions involve important and serious issues. However, we have not examined these matters, as they involve much wider social issues than those of the present project.
1.15      One of the main issues in this project are offences which involve sexual acts that are non-consensual or are exploitative due to the victim's lack of capacity. We accept that arguments can be advanced that many people involved in the making of pornography do not give consent but our present focus is on conduct which is clearly non-consensual or exploitative. One category of pornography that falls within this area is pornography involving children. We take it as axiomatic that child pornography should be subject to control by the criminal law. However, we do not propose to examine this topic except as incidental to our more general recommendations relating to sexual conduct involving children.^[28] Our reasons for doing so are largely pragmatic in that the issue of child pornography has been the subject of recent legislation. Provisions on child pornography are contained within the Civic Government (Scotland) Act 1982,^[29] which make it an offence to take, distribute, or possess indecent images of children. These provisions were amended by the Criminal Justice (Scotland) Act 2003. A further issue is arranging or facilitating the commission of child pornography. Such conduct has recently been considered by the Scottish Parliament and is regulated by the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005.^[30]

Adult entertainment

1.16      Another area of sexual activity which does not fall within the scope of this project relates to so-called adult entertainment. The Scottish Executive set up a Working Group in March 2005 to review the scope and impact of adult entertainment activity. The Group submitted a report in April 2006, and the Scottish Executive indicated that it was minded to implement the majority of the Group's recommendations.^[31] We doubt whether this form of activity would fall within the scope of our terms of reference but, in any case, given the activities of the Working Group, this is not a subject which we examine in this project.

What are sexual offences?

1.17      In order to identify which areas of substantive law and evidence we should examine as falling within our terms of reference, we need to consider the question of what constitute sexual offences. In the Discussion Paper we examined definitions and classifications of sexual offences used in the existing law,^[32] and in the Draft Criminal Code.^[33] We also considered how sexual offences are characterised in legal writings. On the basis of these sources we adopted the following approach.^[34]
1.18      We classified sexual offences into three broad categories. First, there are offences which are concerned with promoting or protecting a person's sexual autonomy. Secondly, there are offences which seek to provide protection to persons who are vulnerable to sexual exploitation or about whom there are doubts concerning their capacity to engage in consenting sexual conduct. Thirdly, there are offences which seek to promote a social or moral goal other than those in the previous two categories (that is, autonomy and protection). Later we discuss the key ideas which are used in this framework (sexual autonomy, protection, and public morality).^[35] The types of sexual offences which we consider fall within the scope of our project can be classified in the following way.
1.19      The first set of offences, which we consider in Part 3 of this Report, are those prohibiting conduct which infringes the sexual autonomy of a person involved in it. These offences can generally be described as sexual assaults and under the existing law encompass the crimes of rape and indecent assault.
1.20      The next category, considered in Part 4, concerns offences which protect persons who are vulnerable in respect of sexual matters. The two most obvious types of person in this situation are young persons and people with a form of mental disorder. There is a range of existing offences which deal with these types of vulnerable person. In addition to common law offences (for example lewd, indecent or libidinous behaviour), there are several statutory provisions specifically criminalising sexual activity with children. These are contained within sections 5(1),^[36] 5(3),^[37] 6^[38] and 13^[39] of the Criminal Law (Consolidation) (Scotland) Act 1995. Sections 311-313 of the Mental Health (Care and Treatment) (Scotland) Act 2003^[40] make provision in respect of persons who are mentally disordered, criminalising both non-consensual sexual acts^[41] with such persons, as well as sexual acts (regardless of consent) involving the carers of such persons.^[42] In addition the law has widened its use of the protective principle to deal with other situations involving vulnerability, including regulation of sexual conduct between persons one of whom has a position of trust or authority over the other.^[43]
1.21      The final range of sexual offences, discussed in Part 5, are those where the underlying rationale is a social or moral principle or goal other than protecting sexual autonomy or protecting vulnerable persons. These offences can be generally labelled as offences against public morality. This label is useful even if not entirely accurate, for, as we point out later, all sexual offences are based on some or other moral principle. The offences we consider under this heading are homosexual offences, incest, indecent conduct formerly falling within the offence of shameless indecency, assaults involving sado-masochistic activity, and bestiality. Certain other offences which come within the broad heading of public morality offences such as prostitution-related offences, and pornography, are not considered in this project for the reasons set out earlier.^[44]

Guiding principles for reforming the law of sexual offences

1.22      In the Discussion Paper we formulated certain principles which we identified as appropriate sources of guidance for the task of reforming the law on sexual offences. These principles have influenced out thinking in making our final recommendations and we consider that it will be of value in reading this Report if we now restate those principles.^[45]
1.23      We do not see any discussion of principles for reforming this area of law as dealing with the 'enforcement of morals'. That debate, often presented in the context of sexual offences, is concerned about the extent to which social views should influence legal development.^[46] But, in one sense, all of the major issues about reforming the law on sexual offences involve giving legal effect to some or other underlying moral principle and for us the important issue is to identify what those principles are.^[47]

Clarity of the law

1.24      One important goal for any law reform project is to make the law clear.^[48] The need for clarity is especially significant in the criminal law, where the consequence of infringement is the liability of incurring a penalty involving deprivation of liberty or property. This need is perhaps all the greater in respect of the law regulating sexual conduct. Persons contemplating engaging in a particular form of sexual conduct should be able to know, or find out without difficulty, whether what they are intending to do is, or is not, legal. There are two important issues in seeking clarity of the law in this context. The first is that each sexual offence must be defined in such a way that what it prohibits is directly stated. The second is that each offence must be comprehensive in scope; it prohibits certain forms of conduct but nothing more. There should not be open-ended sexual offences, a criticism that was made of the former offence of shameless indecency and could also be made about the offence of lewd, indecent or libidinous behaviour. Rather, we favour classifying sexual offences according to the specific type of wrong which the prohibited act does to the victim.

Respect for sexual autonomy

1.25      In trying to locate the wrongs involved in certain forms of sexual conduct the most fundamental principle is respect for a person's sexual autonomy. Autonomy is a complex idea but in the context of legal regulation of sexual conduct it involves placing emphasis on a person freely choosing to engage in sexual activity. Respect for autonomy operates at two levels. Where a person participates in a sexual act in respect of which she has not freely chosen to be involved, that person's autonomy has been infringed, and a wrong has been done to her. This generates a fundamental principle for the law on sexual offences, namely that any activity which breaches someone's sexual autonomy is a wrong which the law should treat as a crime. But respect for autonomy has also a different type of implication for the criminal law. Where a person freely chooses to engage in a sexual activity, the law should in principle not prohibit that activity. There may be exceptional instances where a person's free choice in sexual activity is overridden and the conduct is made criminal. But these instances are truly exceptional and must be based on clear and convincing reasons.
1.26      Often the idea of consent is seen as a key element of giving effect to sexual autonomy. At a general level this concept helps to explain exactly what is wrong about certain forms of sexual conduct. Sexual activity usually involves social interaction between different people. In order for one person to respect the sexual autonomy of another, it is necessary to obtain that other person's consent to a sexual act. This requirement applies to every person who is or may be a party to a particular act. Where one person engages in sex with another without her consent there has not been an appropriate form of interaction between them. Engaging in sexual activity without the consent of another person is a particular form of wrongdoing to that person.^[49]
1.27      One value of using consent to explain the more abstract idea of sexual autonomy is that it acts as a more concrete way of stating a crucial general principle for assessing rules of the criminal law. The general principles about promoting and respecting sexual autonomy can also be reformulated in terms of consent. First, non-consenting sexual conduct should be criminalised. And secondly, consenting sexual conduct should not be criminalised unless there are strong reasons for doing so.

Protective principle

1.28      One possible approach is to state that the two main principles based on consent provide all that is needed for reforming the law on sexual offences, albeit to achieve this purpose the consent model would have to be developed in some detail. However, we have identified a further possible principle which, at least at first glance, does not sit entirely easily with using consent as the key element of sexual autonomy. We refer to this as the protective principle. The underlying idea here is that the criminal law should give special protection to persons about whom consenting to sexual activity is problematic. The categories of persons are children, persons with a mental disorder, and persons over whom others hold a position of trust. There are several rationales for the protective principle. One is that it simply adds to the consent requirement, in that such persons cannot consent to sexual activity. This is the position in regard to young children. However, the protective principle goes further and applies in cases where the person to be protected can give consent (for example, older children or persons over whom others hold a position of trust or authority). Here the protective principle acts to protect vulnerability and to prevent exploitation. It must be noted that in these situations the protective principle overrides the principle that sexual conduct based on the consent of the parties should not be criminalised. We further examine the protective principle and its relationship with the consent model in Part 4.

Distinctions based on sexual orientation or gender

1.29      A further guiding principle is that the law on sexual offences should not involve distinctions based on sexual orientation or types of sexual practice. If sexual conduct involves consenting parties, none of whom falls within the scope of the protective principle, then that conduct should not be made criminal unless there are clear and convincing reasons to do so. An allied but subsidiary point is that the criminal law on sexual offences should, as far as possible, not make distinctions based on gender.

Other types of legal and social intervention

1.30      This project is concerned with reforming a part of the criminal law. However, not all legal regulation of sexual conduct needs to be done by way of the criminal law, and other types of legal process may be a more appropriate way of dealing with problematic sexual conduct. For example, in Scotland most offences committed by children do not result in prosecution in the criminal courts but are dealt with by the welfare-based children's hearings system. Still less should the criminal law cover every possible type of morally wrong sexual conduct. Matters such as adultery or infidelity are not issues for the criminal law or perhaps even for the law generally.

European Convention on Human Rights

1.31      Finally, we would draw attention to the provisions of the European Convention on Human Rights. The Convention provisions are a crucial element in the legislative competence of the Scottish Parliament.^[50] The Scots law on sexual offences has already been amended to ensure compliance with the Convention.^[51] But the Convention is also of importance as a statement of the basic values of the law on sexual offences.^[52] In that context there are various principles which the Convention sets out.

(1) Clarity and certainty of criminal law.^[53] The Convention sets out various rights which must be observed by States. A State may limit the exercise of these rights in various circumstances but must do so in accordance with 'law'. In explaining this idea the European Court of Human Rights has observed:^[54]

"a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail."

(2) Need for an effective system of sexual offences. There is a duty on a State to formulate adequate measures on sexual offences and to ensure that the law is properly implemented. The effect of Article 3 (prohibition of degrading treatment) and Article 8 (right to respect for private life) is that a State must provide for the penalisation of non-consensual sexual activity, including where there was no evidence of physical resistance by the victim, in order to secure protection of the individual's sexual autonomy.^[55]

(3) Prohibition of discrimination based on sexual orientation.^[56] Decisions of the European Court of Human Rights, such as Sutherland,^[57] indicate that a difference of treatment of homosexual men as opposed to heterosexual men and women cannot be justified, which suggests that there can be no place for specifically homosexual offences in any reforming legislation. Furthermore any 'protective' legislation cannot apply to homosexual conduct without also covering heterosexual acts.^[58]

A note on terminology: victims and complainers

1.32      In Scots law there are two terms which refer to the person against whom a crime has been, or may have been, committed. The more technical term 'complainer' is used to indicate the person who alleges that an offence has been committed against him or her.^[59] The word is neutral in respect of whether any crime has been committed against that person, and therefore does not assume that another person, especially the accused in a trial, committed the crime. Strictly speaking, a complainer does not become a victim unless and until the accused is convicted. In contrast, in everyday language the term 'victim' is not restricted to persons in this situation. A person can be the victim of a crime even though no one is ever charged or prosecuted. The law also uses this wider term. The Criminal Justice (Scotland) Act 2003 makes provision for victims' rights. Some of these rights (for example, the right to make a victim statement) apply to a person against whom an offence has been, or appears to have been, perpetrated.^[60] Other provisions (for example, disclosure of information to victim support services) apply simply in respect of a person against whom an offence appears to have been perpetrated.^[61] Generally in this Report we will use the more common, and more easily understood, term 'victim'. However, where the point in issue is whether or not a crime has been committed against a person, we will use the more technical term 'complainer'.

Structure of the Report and outline of our recommendations

1.33      In Part 2 we consider the idea of consent in relation to sexual offences. We recommend that the law should provide a definition of consent. This definition should have two elements: first, a general definition of consent as meaning 'free agreement'; secondly, a non-exhaustive list of factual situations which define when a person has not consented to sexual activity. In Part 3 we deal with offences of rape and other types of sexual attack. We recommend that the definition of rape should be widened so as to include various types of sexual penetration, which can be committed against victims of either sex. We also recommend that there should be a detailed definition of the offence of sexual assault, and that there should be offences dealing with coerced sexual activity. A further recommendation concerns the mens rea for these offences. In assessing whether an accused person lacked reasonable belief that the victim consented, regard is to be taken of the steps (if any) which the accused took to find out whether there was consent. Part 4 deals with offences which fall within the protective principle. We recommend that there should be offences of strict liability where someone engages in sexual activity with a child under the age of 13. We also recommend that there should be criminal liability on someone aged 16 or older who has sexual activity with a consenting child aged 13, 14, or 15. There should also be offences designed to protect a variety of people who are owed duties by someone else under a relationship of trust. In Part 5 we consider various types of sexual offences which fall within the heading of public morality. We recommend that existing laws prohibiting consenting homosexual conduct should be abolished or repealed. We further recommend the creation of an offence of sexual exposure, and that criminal liability should be removed from people over the age of 16 who agree to engage in physical attack for the purpose of sexual gratification. Part 6 examines issues in the law of evidence concerning proof of sexual offences. For the reasons we explain there we do not make recommendations for any change to the law of evidence. In Part 7 we consider miscellaneous matters such as transitional issues, continuity of the law, alternative verdicts, and penalties. Part 8 contains a list of our recommendations. Appendix A contains our Draft Bill, with notes on sections, and Appendix B set out the list of consultees who submitted a written response to our Discussion Paper.

Legislative competence

1.34      The recommendations set out in this Report relate to criminal law. With a few exceptions, which do not concern any of the matters in this Report, this area of law is not reserved to the United Kingdom Parliament.^[62] We consider that our recommendations would therefore be capable of being implemented by legislation of the Scottish Parliament.
1.35      A further aspect of the legislative competence of the Scottish Parliament is that an Act of the Parliament must be compatible with the rights set out in the European Convention on Human Rights.^[63] We deal specifically with Convention matters at various places in this Report.^[64] We have also considered the competence of the Scottish Parliament in respect of European Community law.^[65] In our view enactment of the recommendations made in this Report would be compatible with Convention rights and with Community law.

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Note 1   Amended by the Scotland Act 1998 (Consequential Modifications) (No 2) Order 1999 (SI 1999/1820).    [Back]

Note 2   Under the Law Commissions Act 1965, s 3(1)(e).    [Back]

Note 3   The membership of the Advisory Group was as follows: Sandy Brindley, Rape Crisis Scotland; James Chalmers, University of Aberdeen School of Law; Brian Dempsey, Outright Scotland; Iain Fleming, Law Society Criminal Law Committee; Janette de Haan, Glasgow Women's Support Project; Tim Hopkins, Equality Network; Louise Johnson, Scottish Women's Aid; Frances McMenamin QC, Faculty of Advocates; Stephanie Whitehead, Policy and Development Manager, Brook.    [Back]

Note 4   Scottish Law Commission, Discussion Paper on Rape and Other Sexual Offences (Scot Law Com DP No 131 (2006)). Full details of the steps which we followed in preparing our Discussion Paper are set out in para 1.2 of the Paper.    [Back]

Note 5   We received a total of 82 responses and we reckon that over 30 of these were submitted by people who were not writing in a professional capacity. A list of consultees who submitted a written response is set out in Appendix B.     [Back]

Note 6   2002 SLT 466.    [Back]

Note 7   2004 JC 87. In this case, the Court held that where a charge of rape did not involve force, the Crown had to lead specific evidence from which the accused's knowledge of the victim's lack of consent could be inferred.     [Back]

Note 8   2004 JC 103. Here the Court re-iterated a further point made in McKearney that evidence of distress by the victim after an alleged rape could not act as corroboration of the accused's state of mind at the time of the rape.    [Back]

Note 9   Hume, I, 469 mentions the case of Swan and Litster decided in 1570.    [Back]

Note 10   Stallard v HM Advocate 1989 SLT 469.    [Back]

Note 11   The seven judge case of Lord Advocate's Reference (No 1 of 2001) was decided by a majority of five to two. The view of at least one of the dissenting judges was that the courts lacked the authority to change an established legal rule, and that reform should be done by Parliament which would be better placed to assess the contemporary social values at the root of the decision (2002 SLT 466 at 488-490 (Lord McCluskey)).    [Back]

Note 12   For a useful assessment of these reforms, see Temkin, chapter 3.    [Back]

Note 13   ACT LRC Report No 18 (2001).    [Back]

Note 14   SALC Project 107 (2002).    [Back]

Note 15   Victorian Law Reform Commission, Sexual Offences: Final Report (2004).    [Back]

Note 16   Part 1 of the 2003 Act deals with the law on sexual offences in England and Wales. It came into effect on 1 May 2004. Part 2 of the Act, which relates to the procedures for notification in respect of convicted sex offenders (sometimes referred to as the 'sex offenders register'), also applies to Scotland and Northern Ireland.    [Back]

Note 17   The provisions deal with such matters as rape and sexual assault, child sex offences, offences involving abuse of trust, offences against child family members and persons with mental disorder, child pornography, prostitution, and miscellaneous offences such as exposure and voyeurism.    [Back]

Note 18   We consider consent as a part of the law on sexual offences in Part 2 of this Report.    [Back]

Note 19   Home Office (2000).    [Back]

Note 20   A Draft Criminal Code for Scotland with Commentary (2003, published under the auspices of the Scottish Law Commission).     [Back]

Note 21   In March 2005 we held a seminar at the University of Edinburgh to explore how far we could build upon the work of the Code group for our own project. The speakers were Professor Jennifer Temkin, University of Sussex; Professor Christopher Gane, University of Aberdeen; Dr Victor Tadros, University of Edinburgh; and Professor Eric Clive, University of Edinburgh. The seminar was of considerable assistance in helping us to identify and understand the complex issues involved in reforming the law on sexual offences, and we wish to repeat our expression of gratitude to the speakers and other participants at the seminar.    [Back]

Note 22   Paras 1.17-1.21.    [Back]

Note 23   Crown Office and Procurator Fiscal Service, Review of the Investigation and Prosecution of Sexual Offences in Scotland. Report and Recommendations (June 2006).     [Back]

Note 24   "The essence of [soliciting] is the nuisance - that is, the fear, alarm or offence - caused by the conduct to the individuals importuned and to members of the public." (Commentary to the Draft Criminal Code, p 175.)    [Back]

Note 25   Scottish Executive, Being Outside: Constructing a Response to Street Prostitution (2004), p v.     [Back]

Note 26   Ibid.     [Back]

Note 27   The main provisions of the Act came into force on 15 October 2007 (SSI 2007/382).    [Back]

Note 28   The 2003 Act in England and Wales deals with pornography only in relation to children and young persons (ss 45-46, 48-51). However, the Home Office Review was criticised for not dealing with pornography more generally (see N Lacey, "Best by Boundaries: The Home Office Review of Sex Offences" [2001] Crim LR 3, 13). The Draft Criminal Code includes a section on child pornography in the part on sexual offences (Part 3, s 72). This section is based mainly on the existing law in the Civic Government (Scotland) Act 1982. The Code also contains a section on obscene material in the part of the Code dealing with offensive conduct (Part 8, s 106).    [Back]

Note 29   Sections 52 and 52A.     [Back]

Note 30   The 2005 Act came into effect in October 2005.    [Back]

Note 31   Letter dated 9 October 2006 to the chairman of the Working Group from Tom McCabe MSP, Minister for Finance & Public Service Reform.    [Back]

Note 32   For example, Criminal Procedure (Scotland) Act 1995, s 288C; Sexual Offences Act 2003, Sch 3.    [Back]

Note 33   Draft Criminal Code, ss 60-74.    [Back]

Note 34   We found particular value in the discussion in Gane (pp 1-6) and also a broadly similar approach used in the article on Criminal Law in the Stair Memorial Encyclopaedia, vol 7, paras 294-320. This model has not been followed in 2005 Reissue of this article.     [Back]

Note 35   Paras 1.22-1.31.    [Back]

Note 36   Unlawful sexual intercourse with a girl under the age of 13.    [Back]

Note 37   Unlawful sexual intercourse with a girl over the age of 13 and under the age of 16.    [Back]

Note 38   Extension of the offence of lewd, indecent or libidinous conduct to include girls aged between 12 and 16.    [Back]

Note 39   Homosexual offences: this section would cover homosexual acts with a boy under the age of 16 (s 13(5)(c)).    [Back]

Note 40   The relevant provisions of this Act came into force on 5 October 2005.     [Back]

Note 41   Mental Health (Care and Treatment) (Scotland) Act 2003, s 311.    [Back]

Note 42   Ibid, s 313.    [Back]

Note 43   See Sexual Offences (Amendment) Act 2000, ss 3 and 4 which make it an offence for a person over the age of 18 to have sexual intercourse or engage in any other sexual activity with a person under that age where there is a position of trust between them. The scope of this offence in English law has been extended by the Sexual Offences Act 2003, ss 16-24.    [Back]

Note 44   Paras 1.13-1.15.    [Back]

Note 45   In the Discussion Paper we set out principles concerning the law of evidence. In Part 6 we state our reasons for not making any recommendations for reforming the law of evidence, and we do repeat those guiding principles here.    [Back]

Note 46   The classical statements of the issues in this debate are P Devlin, The Enforcement of Morals (1965); H L A Hart, Law, Liberty, and Morality (1963).    [Back]

Note 47   We have found useful earlier discussions of reforming the law of sexual offences. See, for example, D J West, "Thoughts on Sex Law Reform" in R Hood (ed), Crime, Criminology and Public Policy (1974) 469; B Hogan, "On Modernising the Law of Sexual Offences" in P R Glazebrook (ed), Reshaping the Criminal Law (1978) 174.     [Back]

Note 48   One of the duties of the Scottish Law Commission is to review Scots law with a view to "the simplification and modernisation of the law" (Law Commissions Act 1965, s 3(1)).    [Back]

Note 49   This approach to consent as a feature of sexual autonomy is explored in J Gardner and S Shute, "The Wrongness of Rape" in J Horder (ed), Oxford Essays in Jurisprudence, Fourth Series (2000) 193.     [Back]

Note 50   Para 1.35.    [Back]

Note 51   See, for example, the Sexual Offences (Amendment) Act 2000, s 1 which standardised the heterosexual and homosexual 'age of consent' at 16. See also the Convention Rights (Compliance) (Scotland) Act 2001, s 10, which removed the prohibition of consensual homosexual activity involving more than two men.    [Back]

Note 52   Setting the Boundaries, paras 1.2.1-1.2.6.    [Back]

Note 53   Article 7 of the ECHR.    [Back]

Note 54   Silver v United Kingdom (1983) 5 EHRR 347, para 88.    [Back]

Note 55   MC v Bulgaria (2005) 40 EHRR 20. This case concerned an allegation by a 14 year-old girl of rape (14 was the age of consent in Bulgaria), proceedings for which had been terminated by the district prosecutor due to a lack of evidence of the use of force or threats and, in particular, lack of evidence of resistance on the part of the applicant. The European Court of Human Rights held that the approach of the Bulgarian authorities amounted to a violation of Articles 3 and 8. The focus of the Bulgarian authorities should have centred on evidence of lack of consent, rather than on evidence of physical force or resistance. In reaching this decision, the Court placed considerable emphasis on the fact that other European countries had reformed traditional legal definitions of rape requiring force, and had removed this requirement in favour of a lack of consent.     [Back]

Note 56    Article 8 (right to respect for private and family life), read with Article 14 (prohibition of discrimination).    [Back]

Note 57   Sutherland v United Kingdom (App No 25186/94), para 36. The European Commission of Human Rights held that a minimum age of 18 for lawful sexual practices between men in the United Kingdom rather than 16 (the age limit for heterosexual and lesbian sexual activity) violated the applicant's right to respect for private life guaranteed under Article 8, taken in conjunction with Article 14 (prohibition of discrimination).     [Back]

Note 58   SL v Austria (2003) 37 EHRR 39.     [Back]

Note 59   See for example Criminal Procedure (Scotland) Act 1995, s 274(2): "In subsection (1) above — 'complainer' means the person against whom the offence referred to in that subsection is alleged to have been committed."     [Back]

Note 60   Criminal Justice (Scotland) Act 2003, s 14(2).    [Back]

Note 61   Ibid, s 18(1).    [Back]

Note 62   Scotland Act 1998, s 126(5); Sch 5.    [Back]

Note 63   Ibid, ss 29(2)(d), 126(1); Human Rights Act 1998, s 1(1).    [Back]

Note 64   Paras 4.34-4.38; 4.71-4.73; 4.79-4.80; 5.19; 6.32; 7.3; 7.20.    [Back]

Note 65   Scotland Act 1998, ss 29(2)(d), 126(9). We consider a specific issue of EU law at paras 4.111 and 4.127.    [Back]

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