Sexual Offences Act (Scotland) 2009.pdf

Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) Sexual Offences (Scotland) Act 2009 2009 asp 9 The Bill for this Act of the Scottish Parliament was passed by the Parliament on 10th June 2009 and...

Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) Sexual Offences (Scotland) Act 2009 2009 asp 9 The Bill for this Act of the Scottish Parliament was passed by the Parliament on 10th June 2009 and received Royal Assent on 14th July 2009 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— (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 (3) In a case where penetration is initially consented to but at some point of time the consent is withdrawn, subsection (2) is to be construed as if the reference in it to a continuing act from entry were a reference to a continuing act from that point of time.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 a surgically constructed penis if it forms part of A, having been created in the course of surgical treatment, and “vagina” includes— (a) the vulva, and (b) a surgically constructed vagina (together with any surgically constructed vulva), if it forms part of B, having been created in the course of such treatment. 2 Sexual Offences (Scotland) Act 2009 asp 9 Part 1 – Rape etc. Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) Commencement Information I1 S. 1 wholly in force; s. 1(4) in force at Royal Assent see s. 62(2); s. 1 otherwise in force at 1.12.2010 by S.S.I. 2010/357, art. 2(a) Sexual assault by penetration 2 Sexual assault by penetration (1) If a person (“A”), with any part of A's body or anything else— (a) without another person (“B”) consenting, and (b) without any reasonable belief that B consents, penetrates sexually to any extent, either intending to do so or reckless as to whether there is penetration, the vagina or anus of B then A commits an offence, to be known as the offence of sexual assault by penetration. (2) For the purposes of this section, penetration is a continuing act from entry to withdrawal of whatever is intruded; 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) Without prejudice to the generality of subsection (1), the reference in that subsection to penetration with any part of A's body is to be construed as including a reference to penetration with A's penis. Sexual assault and other sexual offences 3 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, (e) intentionally or recklessly emits urine or saliva onto B sexually. (3) 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 (4). Sexual Offences (Scotland) Act 2009 asp 9 Part 1 – Rape etc. Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) 3 (4) In a case where penetration is initially consented to but at some point of time the consent is withdrawn, subsection (3) 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. (5) 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. 4 Sexual coercion 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. 5 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) 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. 6 Coercing a person into looking at a sexual image (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 a sexual image, then A commits an offence, to be known as the offence of coercing a person into looking at a sexual image. (2) The purposes are— (a) obtaining sexual gratification, 4 Sexual Offences (Scotland) Act 2009 asp 9 Part 1 – Rape etc. Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) (b) humiliating, distressing or alarming B. (3) For the purposes of subsection (1), a sexual image is an image (produced by whatever means and whether or not a moving image) of— (a) A engaging in a sexual activity or of a third person or imaginary person so engaging, (b) A's genitals or the genitals of a third person or imaginary person. 7 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— “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 “verbal communication” means a communication in whatever verbal form, and without prejudice to that generality includes— (a) a communication which comprises sounds of sexual activity (whether actual or simulated), and (b) a communication by means of sign language. 8 Sexual exposure (1) If a person (“A”)— (a) without another person (“B”) consenting, and (b) without any reasonable belief that B consents, intentionally and for a purpose mentioned in subsection (2), exposes A's genitals in a sexual manner to B with the intention that B will see them, then A commits an offence, to be known as the offence of sexual exposure. Sexual Offences (Scotland) Act 2009 asp 9 Part 1 – Rape etc. Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) 5 (2) The purposes are— (a) obtaining sexual gratification, (b) humiliating, distressing or alarming B. 9 Voyeurism (1) A person (“A”) commits an offence, to be known as the offence of voyeurism, if A does any of the things mentioned in subsections (2) to (5). (2) The first thing is that A— (a) without another person (“B”) consenting, and (b) without any reasonable belief that B consents, for a purpose mentioned in subsection (6) observes B doing a private act. (3) The second thing is that A— (a) without another person (“B”) consenting, and (b) without any reasonable belief that B consents, operates equipment with the intention of enabling A or another person (“C”), for a purpose mentioned in subsection (7), to observe B doing a private act. (4) The third thing is that A— (a) without another person (“B”) consenting, and (b) without any reasonable belief that B consents, records B doing a private act with the intention that A or another person (“C”), for a purpose mentioned in subsection (7), will look at an image of B doing the act. [F1(4A) The fourth thing is that A— (a) without another person (“B”) consenting, and (b) without any reasonable belief that B consents, operates equipment beneath B's clothing with the intention of enabling A or another person (“C”), for a purpose mentioned in subsection (7), to observe B's genitals or buttocks (whether exposed or covered with underwear) or the underwear covering B's genitals or buttocks, in circumstances where the genitals, buttocks or underwear would not otherwise be visible. (4B) The fifth thing is that A— (a) without another person (“B”) consenting, and (b) without any reasonable belief that B consents, records an image beneath B's clothing of B's genitals or buttocks (whether exposed or covered with underwear) or the underwear covering B's genitals or buttocks, in circumstances where the genitals, buttocks or underwear would not otherwise be visible, with the intention that A or another person (“C”), for a purpose mentioned in subsection (7), will look at the image.] (5) The [F2sixth] thing is that A— (a) installs equipment, or [F3(b) constructs or adapts a structure or part of a structure, with the intention of enabling A or another person to do an act referred to in subsection (2), (3), (4), (4A) or (4B).] (6) The purposes referred to in subsection (2) are— 6 Sexual Offences (Scotland) Act 2009 asp 9 Part 1 – Rape etc. Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) (a) (b) obtaining sexual gratification, humiliating, distressing or alarming B. (7) The purposes referred to in subsections (3) [F4, (4), (4A) and (4B)] are— (a) obtaining sexual gratification (whether for A or C), (b) humiliating, distressing or alarming B. Textual Amendments F1 F2 F3 F4 10 S. 9(4A)(4B) inserted (1.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 43(2)(a), 206; S.S.I. 2010/357, art. 2(b) Word in s. 9(5) subsitituted (1.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 43(2)(b)(i), 206; S.S.I. 2010/357, art. 2(b) S. 9(5)(b) subsitituted (1.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 43(2)(b)(ii), 206; S.S.I. 2010/357, art. 2(b) Words in s. 9(7) subsitituted (1.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 43(2)(c), 206; S.S.I. 2010/357, art. 2(b) Interpretation of section 9 (1) For the purposes of section 9, a person is doing a private act if the person is in a place which in the circumstances would reasonably be expected to provide privacy, and— (a) the person's genitals, buttocks or breasts are exposed or covered only with underwear, (b) the person is using a lavatory, or (c) the person is doing a sexual act that is not of a kind ordinarily done in public. (2) For the purposes of section 9(3) [F5and (4A)], operating equipment includes enabling or securing its activation by another person without that person's knowledge. (3) In section 9(5), “structure” includes a tent, vehicle or vessel or other temporary or movable structure. Textual Amendments F5 11 Words in s. 10(2) inserted (1.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 43(3), 206; S.S.I. 2010/357, art. 2(b) 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 any person 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), if A, whether by act or omission, induces in B a reasonable belief that the substance administered or taken is (either or both)— Sexual Offences (Scotland) Act 2009 asp 9 Part 2 – Consent and reasonable belief Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) 7 (a) of a substantially lesser strength, or (b) 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. PART 2 CONSENT AND REASONABLE BELIEF Consent 12 Meaning of “consent” and related expressions In Parts 1 and 3, “consent” means free agreement (and related expressions are to be construed accordingly). 13 Circumstances in which conduct takes place without free agreement (1) For the purposes of section 12, 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 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 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, (c) where B agrees or submits to the conduct because B is unlawfully detained by A, (d) 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, (e) 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 (f) 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 9. 14 Consent: capacity while asleep or unconscious (1) This section applies in relation to sections 1 to 9. (2) A person is incapable, while asleep or unconscious, of consenting to any conduct. 15 Consent: scope and withdrawal (1) This section applies in relation to sections 1 to 9. (2) Consent to conduct does not of itself imply consent to any other conduct. 8 Sexual Offences (Scotland) Act 2009 asp 9 Part 3 – Mentally disordered persons Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) (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. Reasonable belief 16 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. PART 3 MENTALLY DISORDERED PERSONS Mentally disordered persons 17 Capacity to consent (1) This section applies in relation to sections 1 to 9. (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). Commencement Information I2 S. 17 wholly in force; s. 17(3) in force at Royal Assent see s. 62(2); s. 1 otherwise in force at 1.12.2010 by S.S.I. 2010/357, art. 2(a) Sexual Offences (Scotland) Act 2009 asp 9 Part 4 – Children Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) 9 PART 4 CHILDREN Young children 18 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. 19 Sexual assault on a young child by penetration (1) If a person (“A”), with any part of A's body or anything else, penetrates sexually to any extent, either intending to do so or reckless as to whether there is penetration, the vagina or anus 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 sexual assault on a young child by penetration. (2) Without prejudice to the generality of subsection (1), the reference in that subsection to penetration with any part of A's body is to be construed as including a reference to penetration with A's penis. 20 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, (e) intentionally or recklessly emits urine or saliva onto B sexually. (3) 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. 21 Causing a young child to participate in a sexual activity 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. 10 22 Sexual Offences (Scotland) Act 2009 asp 9 Part 4 – Children Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) 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) 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. 23 Causing a young child to look at a sexual image (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 a sexual image, then A commits an offence, to be known as the offence of causing a young child to look at a sexual image. (2) The purposes are— (a) obtaining sexual gratification, (b) humiliating, distressing or alarming B. (3) For the purposes of subsection (1), a sexual image is an image (produced by whatever means and whether or not a moving image) of— (a) A engaging in a sexual activity or of a third person or imaginary person so engaging, (b) A's genitals or the genitals of a third person or imaginary person. 24 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, Sexual Offences (Scotland) Act 2009 asp 9 Part 4 – Children Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) 11 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— “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 “verbal communication” means a communication in whatever verbal form, and without prejudice to that generality includes— (a) a communication which comprises sounds of sexual activity (whether actual or simulated), and (b) a communication by means of sign language. 25 Sexual exposure to a young child (1) If a person (“A”) intentionally and for a purpose mentioned in subsection (2) exposes A's genitals in a sexual manner to a child (“B”) who has not attained the age of 13 years, with the intention that B will see them, then A commits an offence, to be known as the offence of sexual exposure to a young child. (2) The purposes are— (a) obtaining sexual gratification, (b) humiliating, distressing or alarming B. 26 Voyeurism towards a young child (1) If a person (“A”) does any of the things mentioned in subsections (2) to (5) in relation to a child (“B”) who has not attained the age of 13 years, then A commits an offence, to be known as the offence of voyeurism towards a young child. (2) The first thing is that A, for a purpose mentioned in subsection (6), observes B doing a private act. (3) The second thing is that A operates equipment with the intention of enabling A or another person (“C”), for a purpose mentioned in subsection (7), to observe B doing a private act. (4) The third thing is that A records B doing a private act with the intention that A or another person (“C”), for a purpose mentioned in subsection (7), will look at an image of B doing the act. [F6(4A) The fourth thing is that A operates equipment beneath B's clothing with the intention of enabling A or another person (“C”), for a purpose mentioned in subsection (7), to observe— (a) B's genitals or buttocks (whether exposed or covered with underwear), or (b) the underwear covering B's genitals or buttocks, in circumstances where the genitals, buttocks or underwear would not otherwise be visible. 12 Sexual Offences (Scotland) Act 2009 asp 9 Part 4 – Children Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) (4B) The fifth thing is that A records an image beneath B's clothing of— (a) B's genitals or buttocks (whether exposed or covered with underwear), or (b) the underwear covering B's genitals or buttocks, in circumstances where the genitals, buttocks or underwear would not otherwise be visible, with the intention that A or another person (“C”), for a purpose mentioned in subsection (7), will look at the image.] (5) The [F7sixth] thing is that A— (a) installs equipment, or F8 [ (b) constructs or adapts a structure or part of a structure, with the intention of enabling A or another person to do an act referred to in subsection (2), (3), (4), (4A) or (4B).] (6) The purposes referred to in subsection (2) are— (a) obtaining sexual gratification, (b) humiliating, distressing or alarming B. (7) The purposes referred to in subsections (3) [F9, (4), (4A) and (4B)] are— (a) obtaining sexual gratification (whether for A or C), (b) humiliating, distressing or alarming B. (8) Section 10 applies for the purposes of this section as it applies for the purposes of section 9 (the references in that section to section 9(3) [F10, (4A)] and (5) being construed as references to subsections (3) [F11, (4A)] and (5) of this section). Textual Amendments F6 F7 F8 F9 F10 F11 27 S. 26(4A)(4B) inserted (1.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 43(4)(a), 206; S.S.I. 2010/357, art. 2(b) Word in s. 26(5) substituted (1.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 43(4)(b)(i), 206; S.S.I. 2010/357, art. 2(b) S. 26(5)(b) substituted (1.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 43(4)(b)(ii), 206; S.S.I. 2010/357, art. 2(b) Words in s. 26(7) substituted (1.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 43(4)(c), 206; S.S.I. 2010/357, art. 2(b) Word in s. 26(8) inserted (1.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 43(4)(d), 206; S.S.I. 2010/357, art. 2(b) Word in s. 26(8) inserted (1.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 43(4)(d), 206; S.S.I. 2010/357, art. 2(b) Belief that child had attained the age of 13 years It is not a defence to a charge in proceedings under any of sections 18 to 26 that A believed that B had attained the age of 13 years. Sexual Offences (Scotland) Act 2009 asp 9 Part 4 – Children Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) 13 Older children 28 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 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. 29 Engaging in penetrative sexual activity with or towards an older child (1) If a person (“A”), who has attained the age of 16 years, with any part of A's body or anything else penetrates sexually to any extent, either intending to do so or reckless as to whether there is penetration, the vagina or anus of a child (“B”) who— (a) has 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 penetrative sexual activity with or towards an older child. (2) Without prejudice to the generality of subsection (1), the reference in that paragraph to penetration with any part of A's body is to be construed as including a reference to penetration with A's penis. 30 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 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, (e) intentionally or recklessly emits urine or saliva onto B sexually. (3) 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. 14 31 Sexual Offences (Scotland) Act 2009 asp 9 Part 4 – Children Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) Causing an older child to participate in a sexual activity If a person (“A”), who has attained the age of 16 years, intentionally causes a child (“B”), who— (a) has 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. 32 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 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) 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. 33 Causing an older child to look at a sexual image (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 the age of 13 years, but (b) has not attained the age of 16 years, to look at a sexual image, then A commits an offence, to be known as the offence of causing an older child to look at a sexual image. (2) The purposes are— (a) obtaining sexual gratification, (b) humiliating, distressing or alarming B. (3) For the purposes of subsection (1), a sexual image is an image (produced by whatever means and whether or not a moving image) of— (a) A engaging in a sexual activity or of a third person or imaginary person so engaging, (b) A's genitals or the genitals of a third person or imaginary person. Sexual Offences (Scotland) Act 2009 asp 9 Part 4 – Children Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) 34 15 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 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 written 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— “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 “verbal communication” means a communication in whatever verbal form, and without prejudice to that generality includes— (a) a communication which comprises sounds of sexual activity (whether actual or simulated), and (b) a communication by means of sign language. 35 Sexual exposure to an older child (1) If a person (“A”), who has attained the age of 16 years, intentionally and for a purpose mentioned in subsection (2) exposes A's genitals in a sexual manner to a child (“B”) who— (a) has attained the age of 13 years, but (b) has not attained the age of 16 years, with the intention that B will see them, then A commits an offence, to be known as the offence of sexual exposure to an older child. (2) The purposes are— (a) obtaining sexual gratification, (b) humiliating, distressing or alarming B. 36 Voyeurism towards an older child (1) If a person (“A”), who has attained the age of 16 years, does any of the things mentioned in subsections (2) to (5) in relation to a child (“B”) who— 16 Sexual Offences (Scotland) Act 2009 asp 9 Part 4 – Children Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) (a) has 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 voyeurism towards an older child. (2) The first thing is that A, for a purpose mentioned in subsection (6), observes B doing a private act. (3) The second thing is that A operates equipment with the intention of enabling A or another person (“C”), for a purpose mentioned in subsection (7), to observe B doing a private act. (4) The third thing is that A records B doing a private act with the intention that A or another person (“C”), for a purpose mentioned in subsection (7), will look at an image of B doing the act. [F12(4A) The fourth thing is that A operates equipment beneath B's clothing with the intention of enabling A or another person (“C”), for a purpose mentioned in subsection (7), to observe— (a) B's genitals or buttocks (whether exposed or covered with underwear), or (b) the underwear covering B's genitals or buttocks, in circumstances where the genitals, buttocks or underwear would not otherwise be visible. (4B) The fifth thing is that A records an image beneath B's clothing of— (a) B's genitals or buttocks (whether exposed or covered with underwear), or (b) the underwear covering B's genitals or buttocks, in circumstances where the genitals, buttocks or underwear would not otherwise be visible, with the intention that A or another person (“C”), for a purpose mentioned in subsection (7), will look at the image.] (5) The [F13sixth] thing is that A— (a) installs equipment, or F14 [ (b) constructs or adapts a structure or part of a structure, with the intention of enabling A or another person to do an act referred to in subsection (2), (3), (4), (4A) or (4B).] (6) The purposes referred to in subsection (2) are— (a) obtaining sexual gratification, (b) humiliating, distressing or alarming B. (7) The purposes referred to in subsections (3) [F15, (4), (4A) and (4B)] are— (a) obtaining sexual gratification (whether for A or C), (b) humiliating, distressing or alarming B. (8) Section 10 applies for the purposes of this section as it applies for the purposes of section 9 (the references in that section to section 9(3) [F16, (4A)] and (5) being construed as references to subsections (3) [F17, (4A)] and (5) of this section). Textual Amendments F12 S. 36(4A)(4B) inserted (1.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 43(5)(a), 206; S.S.I. 2010/357, art. 2(b) Sexual Offences (Scotland) Act 2009 asp 9 Part 4 – Children Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) F13 F14 F15 F16 F17 37 17 Word in s. 36(5) subsitituted (1.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 43(5)(b)(i), 206; S.S.I. 2010/357, art. 2(b) S. 36(5)(b) subsitituted (1.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 43(5)(b)(ii), 206; S.S.I. 2010/357, art. 2(b) Words in s. 36(7) subsitituted (1.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 43(5)(c), 206; S.S.I. 2010/357, art. 2(b) Word in s. 36(8) inserted (1.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 43(5)(d)(i), 206; S.S.I. 2010/357, art. 2(b) Word in s. 36(8) inserted (1.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 43(5)(b)(ii), 206; S.S.I. 2010/357, art. 2(b) Older children engaging in sexual conduct with each other (1) If a child (“A”), being a child mentioned in subsection (2), does any of the things mentioned in subsection (3), “B” being in each case a child mentioned in subsection (2), then A commits an offence, to be known as the offence of engaging while an older child in sexual conduct with or towards another older child. (2) The child is a child who— (a) has attained the age of 13 years, but (b) has not attained the age of 16 years. (3) The things are that A— (a) penetrates sexually, with A's penis 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 the vagina, anus or penis of B sexually with A's mouth. (4) In the circumstances specified in subsection (1), if B engages by consent in the conduct in question, then B commits an offence, to be known as the offence of engaging while an older child in consensual sexual conduct with another older child. (5) In paragraph (b) of subsection (3), the reference to A's mouth is to be construed as including a reference to A's tongue or teeth. 38 Penetration and consent for the purposes of section 37 (1) This section applies for the purposes of section 37. (2) Penetration is a continuing act from entry until withdrawal of whatever is intruded. (3) “Consent” means free agreement (and related expressions are to be construed accordingly). (4) Without prejudice to the generality of subsection (3), free agreement to conduct is absent in the circumstances set out in section 13(2) (references in that section to A and B being construed in accordance with section 37). (5) A person is incapable, while asleep or unconscious, of consenting to any conduct. (6) Consent to conduct does not of itself imply consent to any other conduct. (7) Consent to conduct may be withdrawn at any time before, or in the case of continuing conduct, during, the conduct. 18 Sexual Offences (Scotland) Act 2009 asp 9 Part 4 – Children Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) (8) 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. 39 Defences in relation to offences against older children (1) It is a defence to a charge in proceedings— (a) against A under any of sections 28 to 37(1) that A reasonably believed that B had attained the age of 16 years, (b) against B under section 37(4) that B reasonably believed that A had attained the age of 16 years. (2) But— (a) the defence under subsection (1)(a) is not available to A— (i) if A has previously been charged by the police with a relevant sexual offence, F18. . . [F19(ia) if A has a previous conviction for a relevant foreign offence committed against a person under the age of 16 [F20and the court before which the charge is brought considers it is appropriate for that conviction to have that effect], or] (ii) if there is in force in respect of A a risk of sexual harm order, (b) the defence under subsection (1)(b) is not available to B— (i) if B has previously been charged by the police with a relevant sexual offence, F21. . . [F22(ia) if B has a previous conviction for a relevant foreign offence committed against a person under the age of 16 [F23and the court before which the charge is brought considers it is appropriate for that conviction to have that effect], or] (ii) if there is in force in respect of B a risk of sexual harm order. (3) It is a defence to a charge in proceedings under any of the sections mentioned in subsection (4) that at the time when the conduct to which the charge relates took place, the difference between A's age and B's age did not exceed 2 years. (4) Those sections are— (a) section 30(2)(a), but not in so far as the charge is founded on— (i) penetration of B's vagina, anus or mouth with A's penis, (ii) penetration of B's vagina or anus with A's mouth, tongue or teeth, (b) section 30(2)(b) or (c), but not in so far as the charge is founded on sexual touching or other physical activity involving— (i) B's vagina, anus or penis being touched sexually by A's mouth, (ii) A's vagina, anus or mouth being penetrated by B's penis, (iii) A's vagina, anus or penis being touched sexually by B's mouth, (c) section 30(2)(d) [F24or (e)], (d) any of sections 31 to 36. (5) In paragraphs (a) and (b) of subsection (2)— (a) “a relevant sexual offence” means an offence listed in schedule 1, [F25(aa) “a previous conviction for a relevant foreign offence” means a previous conviction by a court in a member State of the European Union F26... for an Sexual Offences (Scotland) Act 2009 asp 9 Part 4 – Children Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) (b) 19 offence that is equivalent to one listed in paragraph 1, 4, 7, 10, 13 (so far as applying to an offence listed in paragraph 1, 4, 7 or 10) or 14 of schedule 1,] “a risk of sexual harm order” means an order under section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9) or section 123 of the Sexual Offences Act 2003 (c. 42). [F27(5A) Any issue of equivalence arising in pursuance of subsection (5)(aa) is for the court to determine. (5B) For that purpose, an offence may be equivalent to one listed in paragraph 1, 4, 7, 10, 13 (so far as applying to an offence listed in paragraph 1, 4, 7 or 10) or 14 of schedule 1 even though, under the law of the member State (or part of the member State) in question, it is an offence— (a) regardless of the age of the victim, or (b) only if committed against a person under an age other than 16 years.] (6) The Scottish Ministers may by order modify schedule 1 so as to add an offence against a child which involves sexual conduct or delete an offence listed there. (7) It is not a defence to a charge in— (a) proceedings under any of sections 28 to 37(1) against A that A believed that B had not attained the age of 13 years, (b) proceedings under section 37(4) against B that B believed that A had not attained the age of 13 years. Textual Amendments F18 F19 F20 F21 F22 F23 F24 F25 F26 F27 Word following s. 39(2)(a) repealed (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss 71(1), 206, Sch. 4 para. 13(2)(a)(i); S.S.I. 2010/413, art. 2, Sch. S. 39(2)(a)(ia) inserted (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss 71(1), 206, Sch. 4 para. 13(2)(a)(ii); S.S.I. 2010/413, art. 2, Sch. Words in s. 39(2)(a)(ia) inserted (31.12.2020) by The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/339), regs. 1(3), 14(a) (with reg. 16) Word following s. 39(2)(b) repealed (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss 71(1), 206, Sch. 4 para. 13(2)(b)(i); S.S.I. 2010/413, art. 2, Sch. S. 39(2)(b)(ia) inserted (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss 71(1), 206, Sch. 4 para. 13(2)(b)(ii); S.S.I. 2010/413, art. 2, Sch. Words in s. 39(2)(b)(ia) inserted (31.12.2020) by The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/339), regs. 1(3), 14(a) (with reg. 16) Word. in s. 39(4)(c) inserted (1.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 44, 206; S.S.I. 2010/357, art. 2(b) S. 39(5)(aa) inserted (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss 71(1), 206, Sch. 4 para. 13(3); S.S.I. 2010/413, art. 2, Sch. Words in s. 39(5)(aa) omitted (31.12.2020) by virtue of The Criminal Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/339), regs. 1(3), 14(b) (with reg. 16) S. 39(5A)(5B) inserted (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss 71(1), 206, Sch. 4 para. 13(4); S.S.I. 2010/413, art. 2, Sch. 20 Sexual Offences (Scotland) Act 2009 asp 9 Part 4 – Children Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) General 40 Special provision as regards failure to establish whether child has or has not attained certain ages (1) Deeming provision 1 applies to a trial where— (a) A is charged with an offence under any of sections 28 to 36 or 37(1), (b) there is a failure to establish beyond reasonable doubt that B was a child who had attained the age of 13 years at the relevant time, and (c) the court or, in the case of a trial of an indictment, the jury is satisfied it is established beyond reasonable doubt that B had not attained the age of 16 years at the time. (2) Deeming provision 2 applies to a trial where— (a) B is charged with an offence under section 37(4), (b) there is a failure to establish beyond reasonable doubt that A was a child who had attained the age of 13 years at the relevant time, and (c) the court or, in the case of a trial of an indictment, the jury is satisfied it is established beyond reasonable doubt that A had not attained the age of 16 years at the time. (3) Deeming provision 3 applies to a trial where— (a) A is charged with an offence under section 37(1), (b) there is a failure to establish beyond reasonable doubt that A was a child who had not attained the age of 16 years at the relevant time, and (c) the court or, in the case of a trial of an indictment, the jury is satisfied it is established beyond reasonable doubt that A had attained the age of 13 years at the time. (4) Deeming provision 4 applies to a trial where— (a) B is charged with an offence under section 37(4), (b) there is a failure to establish beyond reasonable doubt that B was a child who had not attained the age of 16 years at the relevant time, and (c) the court or, in the case of a trial of an indictment, the jury is satisfied it is established beyond reasonable doubt that B had attained the age of 13 years at the time. (5) Where any of the deeming provisions apply, references in sections 28 to 37 to A or B having or not having attained a particular age are to be construed in accordance with this section and section 41. (6) In this section and section 41, the “relevant time” is when the conduct to which the proceedings relate occurred. 41 Special provision as regards age: deeming provisions The deeming provisions are— Deeming provision 1 B is to be deemed for the purposes of the proceedings to be a person who has attained the age of 13 years at the relevant time. Sexual Offences (Scotland) Act 2009 asp 9 Part 5 – Abuse of position of trust Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) Deeming provision 2 A is to be deemed for the purposes of the proceedings to be a person who has attained the age of 13 years at the relevant time. Deeming provision 3 A is to be deemed for the purposes of the proceedings to be a child who has not attained the age of 16 years at the relevant time. Deeming provision 4 B is to be deemed for the purposes of the proceedings to be a person who has not attained the age of 16 years at the relevant time. 21 PART 5 ABUSE OF POSITION OF TRUST Children 42 Sexual abuse of trust 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. 43 Positions of trust (1) For the purposes of section 42, a person (“A”) is in a position of trust in relation to another person (“B”) if any of the five conditions set out below 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 persons under 18 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 (c. 36) and A looks after persons under 18 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 persons under 18 in that place. (5) The fourth condition is that B is receiving education at— 22 Sexual Offences (Scotland) Act 2009 asp 9 Part 5 – Abuse of position of trust Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) (a) (b) a school and A looks after persons under 18 in that school, or a further or higher education institution and A looks after B in that institution. (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) A looks after a person for the purposes of this section if A regularly cares for, teaches, trains, supervises, or is in sole charge of the person. (8) The Scottish Ministers may by order modify this section (other than this subsection) and section 44 so as to add, delete or amend a condition. 44 Interpretation of section 43 In section 43— “care home service” has the meaning given by [F28paragraph 2 of schedule 12 to the Public Services Reform (Scotland) Act 2010 (asp 8) (“the 2010 Act”)], “further or higher education institution” means a body listed in schedule 2 to the Further and Higher Education (Scotland) Act 2005 (asp 6) [F29or a college of further education which is assigned to a regional strategic body by order made under section 7C(1) of that Act], “hospital” means a health service hospital (as defined in section 108(1) of the National Health Service (Scotland) Act 1978 (c. 29)), [F30“independent health care service” means any of the following— (a) an independent hospital; (b) a private psychiatric hospital; (c) an independent clinic; or (d) an independent medical agency, as each of those terms is defined in section 10F(2) of the National Health Service (Scotland) Act 1978 (c.29) ,. ] “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” has the same meaning as in the Education (Scotland) Act 1980 (c. 44), “school care accommodation service” has the meaning given by [F31paragraph 3 of schedule 12 to the 2010 Act], and “secure accommodation service” has the meaning given by [F32paragraph 6 of schedule 12 to the 2010 Act]. Sexual Offences (Scotland) Act 2009 asp 9 Part 5 – Abuse of position of trust Document Generated: 2023-04-25 Changes to legislation: There are currently no known outstanding effects for the Sexual Offences (Scotland) Act 2009. (See end of Document for details) 23 Textual Amendments F28 F29 F30 F31 F32 45 Words in s. 44 substituted (1.4.2011) by The Public Services Reform (Scotland) Act 2010 (Consequential Modifications) Order 2011 (S.S.I. 2011/211), art. 1, Sch. 1 para. 20(2)(a) Words in s. 44 inserted (31.3.2015) by The Post-16 Education (Scotland) Act 2013 (Modification of Legislation) Order 2015 (S.S.I. 2015/153), art. 1, Sch. para. 5 Definition in s. 44 substituted (1.4.2011) by The Public Services Reform (Scotland) Act 2010 (Consequential Modifications) Order 2011 (S.S.I. 2011/211), art. 1, Sch. 2 para. 11 Words in s. 44 substituted (1.4.2011) by The Public Services Reform (Scotland) Act 2010 (Consequential Modifications) Order 2011 (S.S.I. 2011/211), art. 1, Sch. 1 para. 20(2)(b) Words in s. 44 substituted (1.4.2011) by The Public Services Reform (Scotland) Act 2010 (Consequential Modifications) Order 2011 (S.S.I. 2011/211), art. 1, Sch. 1 para. 20(2)(c) Sexual abuse of trust: defences (1) It is a defence to a charge in proceedings under section 42 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 in proceedings under section 42— (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 43(6). Mentally disordered persons 46 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) References in this section to the provision of care services are referenc