Sexual Offences (Scotland) Act 2009 PDF

🚨 sexual offences Sexual offences (Scotland) Act 2009 Major change to law that was implemented into Scottish law Commission suggestions (Report on the Law of Rape and Other Sexual Offences (Scot Law Com No 209 (2007)) b...

🚨 sexual offences Sexual offences (Scotland) Act 2009 Major change to law that was implemented into Scottish law Commission suggestions (Report on the Law of Rape and Other Sexual Offences (Scot Law Com No 209 (2007)) but with departures focuses on protective principles (where the idea of consent is problematic) sexual automomy rape Narrowly defined at common law (i.e. prior to the 2009 Act) - man having sexual intercourse by penetrating her vagina with his penis with woman without consent before the act, the lord advocates reference was use of force had to be used for it be considered rape. prior to 2009, it was not considered that a husband could rape his wife. s1 2009 Act: Actus reus: penile penetration of the vagina, anus or mouth of another person without that person’s consent. penetration is considered a continuing act. penis and vagina also include constructed penises and vaginas. (gender reassignment) victims of all genders can be victims of rape in Scots law penetration by another part of the body cannot constitute rape. - this is because penetration by penis is seen as a special type of wrong (std, pregnancy) sexual offences 1  male victims of ‘female rape’ : where someone is made to penetrate another person, they will not be a victim of rape. Mens rea: intention or recklessness as to penetration AND lack of reasonable belief in consent now the use of force is not necessary. s2 2009 Act: sexual assault by penetration: Actus reus: sexual penetration of the vagina or anus of another person without that person’s consent Mens rea: intention or recklessness as to penetration AND lack of reasonable belief in consent sexual assault: s3 2009 Act: Actus reus (all without consent): – sexual penetration of vagina, anus or mouth of another person; – sexual touching of another person; – other sexual contact (bodily or otherwise); – sexually ejaculating semen on to another person; – sexually emitting urine or saliva on to another person Mens rea: intention or recklessness as to the action AND lack of reasonable belief in consent OVERLAP: Both sexual assault by penetration (s2) and sexual assault (s3) cover penile penetration Overlap between these provisions and with section 1 (rape) Why the overlap? – To ensure that prosecution is possible where it is uncertain whether penetration was penile or not sexual offences 2  – To ensure that prosecution is possible where it is uncertain whether there was penetration coercing or compelling sexual activity ss4 - 7 Common components of these offences Actus reus: the complainer does not consent to the activity Mens rea: – All crimes of intention (cant be committed recklessly) – All require lack of reasonable belief in consent – All except s4 require purpose of either obtaining sexual gratification or humiliating, distressing or alarming the complainer – Accused has one of these purposes if in all the circumstances it may reasonably be inferred A was doing the thing for the purpose in question (s 49, Procurator Fiscal, Edinburgh v Aziz ): taxi driver communicating indecently, question was wether it could be inferred his primary purpose was sexual gratification. court held it could be delayed sexual gratification, and immediate sexual gratification by seeing how they reacted to their proposition. Sexual coercion (s 4): causing another to participate in sexual activity. (e.g. female rape) no definition of ‘causing’ - short chain of causation. e.g. if a woman goes into sex work after not receiving financial help from her husband - husband isn't to blame. victim could by their actions be committed of sa themselves. -e.g. if victim is having non - consensual sex but another third party watching also has no consented. Scottish law committee raised they may have a defence of coercion - however that requires threat of bodily harm. Coercing a person to be present during sexual activity (s 5): i) engaging in sexual activity in complainer’s presence or ii) causing the complainer to be present while other(s) engage in such activity sexual offences 3  requires sexual gratification or alarm etc in complainer. - has to relate to presence of complainer not only the sexual gratification itself. no requirement that the companies actually watches the act Coercing a person to look at a sexual image (s 6): causing another to look at a sexual image (i.e. a still or moving image of i) a person engaging in sexual activity or ii) a person’s genitals) [NB the offence of disclosing, threatening to disclose, an intimate photograph of a complainer (s2 Abusive Behaviour and Sexual Harm (Scotland) Act 2016)] doesn't relate to things other than genitals. e.g breasts. defence is consent, reasonable belief they consented, believed disclosure was necessary for detecting and prosecuting a crime, or believe it was in public interest to disclose image. Communicating indecently (s 7): i) sending sexual written/verbal communication to the complainer or ii) causing the complainer to see or hear such communication. the person doesn't even n need to receive it - could be intercepted. sexual exposure s8 Actus reus: exposing genitals to complainer in a sexual manner without complainer’s consent Mens rea: Intentional exposure and intention that complainer see genitals Lack of reasonable belief in consent Purpose of either obtaining sexual gratification or humiliating, distressing or alarming the complainer Offence is still carried out if they don't even see the genitals ‘sexual manner’ makes clear if someone exposes their genitals to urinate in public would not be liable of this offence if someone exposes themselves generally but not to specific people this could constitute breach of the peace or public indecency instead of exposure. sexual offences 4  voyeurism ss 9 & 10 Actus reus (all without consent): Observing the complainer doing a private act (KT v PF Falkirk 2019) : accused recording partner sleeping in underwear without her consent, in order for him or other person to see them for sexual gratification, court decided it was the recording dimension of the crime that got him convicted. simply observing her in this context was not enough as they lived together and shared a bed. Operating equipment with intention of enabling the accused or some other person (C) to observe the complainer doing a private act Recording the complainer doing a private act with the intention that the accused or some other person (C) will look at an image of the complainer doing the act Operating equipment under the complainer’s clothing with the intention of enabling the accused or some other person (C) to observe the complainer’s genitals, buttocks or underwear, where these would not otherwise be visible Recording an image under the complainer’s clothing with the intention of enabling the accused or some other person (C) to observe the complainer’s genitals, buttocks or underwear, where these would not otherwise be visible consent Central concept in the 2009 Act ‘Positive’ or ‘co-operative’ model of consent General definition (s 12): free agreement Consent is not free if they are pressured into it (HM Adv v SM 2019) - woman had sex with man but only to diffuse a situation where she was in danger. in the judges view there was consent in the eyes of the law. court of appeal disagreed and said consent is not free if it is brought about only by circumstances established by the accused. sexual offences 5  Non-exhaustive list of circumstances were the complainer is deemed not to consent (s 13) S 13(2)(a): Where B is incapable of consenting because of the effect of alcohol/other substance doesn't matter how the intoxication came about. R v Bree :someone can loose capacity to consent before unconsciousness. court held vommitting, memory losss and coming In and out of counciousness is not enough to say they codlin consent HM Advocate v MMI : woman was very drunk, didn't remember leaving with accused, next thing she remembered was being in a hotel room and the police arriving. bartender said he saw her arriving and accused had bought her straight vodka and half a pint of bear. woman outdent walk and had to be guided by accused. he said she looked ‘really drunk’. taxi driver said accused was holding complainer up so refused to take them to a hotel. court said she held capacity but court of appeal disagreed and said it was obvious by her actions that she didn't. what is the accused give prior consent ? : it would be possible for people to agree whilst sober to have sexual activity in the future whilst drunk and that sexual activity would still be lawful. however, even if there has been prior sober consent, if at the time the person has no capacity, there is no consent involved. DC v. DG & DR 2017: pursuer alleged she was raped by 2 professional footballers, brought a civil action for damages. court said people that are obviously intoxicated may be able to carry out sexual activity but not with mental capacity to consent. in this case, her conduct made clear she was incapable of consent. S 13(2)(b): Where B agrees or submits to conduct because of violence/threat of violence against B or any other person scopes to violence before or during the sexual offence. these threats must be towards the complainer by the accused. other types of threats are not covered by this section. if s 13 isn't satisfied, s 12 still exists. sexual offences 6  S 13(2)(c): Where B agrees or submits to conduct because unlawfully detained by A S 13(2)(d): Where B agrees or submits to conduct because mistaken, as result of deception by A, as to nature or purpose of conduct can it be either active or passive deception? (lying or failing vs disclose something) the court said the distinction doesn't matter. the complainer may know what happened to them physically but were deceived to think it was a non sexual act. e.g. medical procedure. R v Williams : In this case, a choir master deceived a girl into believing that the sexual act was a medical procedure to improve her breathing. The court found that she had been deceived as to the nature of the act. This case highlights that where the victim is unaware of the true nature of the act itself, the consent is considered invalid. Baillie v HM Advocate 2007: This case reinforced that deception about the nature of conduct can invalidate consent, particularly in cases of sexual activity where the victim is misled about the act's true character. R v Devenauld : In this case, the defendant posed as someone else online to persuade the victim to engage in sexual activity, leading to a lack of true consent as the victim was deceived about the identity of the person. R v B : Consent was considered valid even if one party was unaware of the other's HIV status, as it was not deception about the nature or purpose of the act itself. Assange v Swedish Prosecution Authority : This case involved deception about wearing a condom. It was held that deception regarding condom use could vitiate consent, as it altered the nature of the act agreed upon. sexual offences 7  R (F) v DPP (Admin): Deception about the use of the withdrawal method was found to affect consent, as it changed the agreed terms of the sexual activity. R v Lawrance : In this case, it was held that deception about having had a vasectomy did not relate to the nature or purpose of the act, and thus did not vitiate consent S 13 (2)(e): Where B agrees or submits to conduct because A induces B by impersonating someone known personally to B what does it mean to know someone personally? difficult to say where the section applies. what about deception as to characteristics of A, as opposed to A's identity? e.g. does deception as to the gender attributed to A at birth mean there is no consent? R v Mcnally 2014: the defendant, who identified as male, engaged in sexual activities with a female who believed the defendant to be biologically male. the court found that misrepresentation of gender could vitiate consent under the Sexual Offences Act 2003, as it constituted deception about a fundamental matter. the court ruled that such deception made the consent invalid, resulting in a conviction. Wilson 2013: involves a young trans man who was charged with obtaining sexual intimacy by fraud R(Monica) v DPP 2019: Monica was deceived into a sexual relationship with an undercover police officer who had assumed a false identity. She argued that this deception should extinguish her consent. The High Court held that while the deception was serious, it did not negate her capacity to consent under English law R v Singh : The COPFS has a transgender accused policy, section 5 of which provides guidance for prosecutors in relation to alleged sexual offences involving transgender accused persons. In December 2022, the Crown Prosecution Service consulted the public on updating legal guidance concerning ‘deception as to gender’ sexual offences 8  Factors determined to consider deciding legal indentity is if they have taken action to comply with the gender. Was the complainer mistaken instead of deceived and was the accused aware that they were mistaken? - wether they wilfully ignored aspects of the suspects gender or was there evidence they were exploring their own sexuality. S 13 (2)(f) : Where only expression or indication of agreement to conduct is from someone other than B DPP v Morgan : a man telling three other men they could have sex with his wife. he said his wife would resist but it was just for her own sexual pleasure. Consent while asleep / unconscious (s 14) Van der Schyff v HM Adv 2015 : fell asleep at a party and woke up to the accused digitally penetrating her vagina. claimed she didn't not agree or encourage the activity. accused was convicted but only on deletion of the complainer being asleep. Giving / withdrawing consent (s15) giving of consent to one sexual act does not by itself constitute consent to a different sexual act. consent may be withdrawn at any time before completion of conduct: s 15(3)-(4) prior consent law allow it in cases of unconsciousness or sleep?: suppose that B has given consent to sexual conduct in advance of its taking place. Is such 'prior consent' legally effective? Does it constitute an exception to the rules on, for example, consent while unconscious (s 14) or incapable due to intoxication (s 13(2)(a))? cant withdraw whilst asleep so the partner could go over the line of what was agreed. Case law has now made clear that prior consent is not effective – see e.g.: KT v PF Falkirk 2019 : sexual offences 9  GW v HM Adv 2019 : mens rea as to non-consent (s 16) Requirement of Non-Consent and Lack of Reasonable Belief For sexual offences under the 2009 Act, it is not enough to show that B (the complainant) did not consent. It must also be proven that A (the accused) lacked a reasonable belief in B’s consent. This standard is objective: it looks at what a “reasonable person” would believe under the circumstances, rather than the accused's subjective belief. Objective Standard vs. Old Common Law Under the Act, only reasonable mistakes about consent can negate liability. An honest belief that is unreasonable does not meet the standard. This is a shift from the common law standard (e.g., Jamieson v HM Adv (No 1) 1994), where an unreasonable mistake as to consent could still serve as a defense. Establishing Lack of Reasonable Belief Section 16 of the Act specifies that in assessing “reasonable belief,” the court should consider if the accused took steps to determine consent, and if so, the nature of those steps. Typically, lack of reasonable belief can be inferred from the same evidence used to establish non-consent. However, if there is evidence that A may have misunderstood the situation, the court may need to evaluate reasonable belief separately. Graham v HM Adv (2017): Reinforced that a lack of reasonable belief can be inferred from the same evidence as non-consent, doesn't require former proof. Maqsood v HM Adv (2019): raped a woman who was too drunk for consent, prosecution said the woman couldn't consent and accused must have known this. mens rea doesn't need formal proof. reaffirmed that the court should use an objective standard to assess reasonable belief, on evidence, try may find complainer did not consent but a reasonable person could find she was consenting. if there is a section of the relevant kind is present and the accused person knew it existed, there could be no belief in reasonable consent. sexual offences 10  Nyiam v HM Adv (2022): accused raped two complainer too drunk to give consent, argued they willingly participated. where the argument of the accused is that the complainer had capacity to consent, they cant also argue they were reasonably mistaken about the consent. LW v HM Adv (2023): pointed out if the accused dint know the circumstances existed, it is still necessary that the person in the circumstances as they existed did reasonably bereave they could give consent. the meaning of ‘sexual’ objective test according to the Act, these things are sexual "if a reasonable person would, in all the circumstances of the case, consider [them] to be sexual": s 60(2) Ferguson v HM Adv 2022: accused accused had grabbed woman's butt with no consent and it was objectively sexual. court agreed that it was a sexual offence, however as the man was very drunk it could have not been intended sexually. court rebutted and said it could be drunkeness and sexual not either or. ‘protective’ offences: offences against children Offences Involving Young Children (Under 13) The offences listed for young children are considered strict liability, meaning that the prosecution does not need to prove that the offender knew the child’s age or that consent was absent. The victim's age is the primary factor. R v G : 15 year old boy raped 12 year old girl and claimed he thought she was 15 and was consenting, however she disagreed. HOL upheld that imposing strict liability with age is compatible with the ECHR which gives the right of a fair trial. 2 of the 5 judges said they breached the defendants art 8 right but the rest disagreed. Types of Offences: Rape of a Young Child (s 18) Assault by Penetration and Sexual Assault of a Young Child (ss 19-20) Causing a Young Child to Participate in Sexual Activity (ss 21-22) Indecent Communication and Exposure (ss 24-25) sexual offences 11  Voyeurism (s 26) Indecent Images (s 23) No Defence of Mistake: Under section 27, offenders cannot claim a mistake regarding the child’s age as a defence. Offences Involving Older Children (Aged 13 to 15) Unlike younger children, older children may be capable of giving consent. The law seeks to protect them from exploitation and abuse rather than assuming they cannot consent. Types of Offences: Intercourse with an Older Child (s 28) Penetrative and Sexual Activity with an Older Child (ss 29-30) Similar offences to those involving young children, such as causing participation or exposure (ss 31-36). The offence of older children engaging in sexual conduct with each other (s 37) acknowledges that mutual consent can occur, although it criminalizes certain actions to prevent exploitation. Defences: Reasonable Belief in Age: There is a defence for those who reasonably believe the child was 16 or older, but this does not apply if there are prior relevant charges or convictions (s 39). NB v HM Adv 2017 : the section of the Scotland act which denies the defence of reasonable belief, is not law, as it violates art 8 of the ECHR - respect to private and family life. Age Proximity Defence: If A and B are within two years of age, this defence can apply, excluding penetrative sexual activity and oral-genital contact. this defence will not apply if crime involves penetrative sexual activity. it does apply to section 30 but not if there is penetration. Accused must be 16 or older sexual offences 12  interaction with older law the 3009 act abolished common law offences of rape; clandestine injury to women; lewd; indecent of libidinous practice or behaviour; and sodomy also abolished by a number of statutory offences relating to underage children and homosexual practices come older offences remain Incest (Criminal Law (Consolidation) (Scotland) Act 1995, ss 1 & 2); Stübing v Germany (2012) : there is a marginal appreciation for criminalisation of incest Public indecency (Webster v Dominick 2005) : abolishes ‘shameless indecency’ including absence publications and displays. it did not abolish ‘public indecency’ (sexual exposure, sexual acts in public) sexual offences 13