Crim: w 6-7 - SEXUAL OFFENCES Flashcards
What act applies to most sexual offences and when did it come into force?
Sexual Offences (Scotland) Act 2009
came into force 1st December 2010
The 2009 act was implemented after a major report by the SLC. What were the aims of the Scottish Law Commission report?
- Modernise the law - build in a more contemporary view of sexual relations and gender equality.
- Consent and sexual autonomy. - Make sure offences reflective ‘protective’ principle: protecting vulnerable groups with tricky consent issues. children/mental health
Why is the pre-2009 Act law still important?
Because the 2009 act only applies to cases after it came into force. Historic cases will use the old common law.
What section is rape?
s1
What is the actus reus for rape?
penile penetration of the vagina, anus or mouth of another without their consent
What are the two parts of the mens rea for rape?
- Intention OR recklessness as to penetration
AND
- lack of reasonable belief in consent.
Why did the SLC think rape should be a separate offence from sexual assault?
SLC felt that penile penetration was a very specific type of wrong.
Rape was narrowly defined pre-2009 act as _____
sexual intercourse with force - had to show the woman had been overcome.
How is the change to rape as ‘penile penetration of vagina, anus or mouth’ significant?
It is now possible for both men and women to be victims of rape.
Lack of consent was a fairly recent development in common law for rape, which case was it confirmed in?
Lord Advocate’s Reference no.1 2001
Can a woman be a victim of rape by another woman? Why?
No. Because other body parts/objects do not count. Must be ‘penile’
Which subsection of s1 stated that rape applied to surgically-made body parts too?
1(4)
How is penetration defined in s 1(2)?
continuing act
Where in the 2009 act is the offence of sexual assault found?
s2
What is the actus reus for sexual assault by penetration?
sexual penetration of the vagina or anus of another person without their consent
What is the mens rea for sexual assault by penetration? Is it the same for rape?
Yes it is the same as for rape:
- Intention or recklessness as to penetration.
AND
- lack of reasonable consent
How is ‘sexual’ defined?
Is it an objective or subjective test?
something a reasonable person would consider sexual
objective test: accused’s particularities not considered
What offence is covered in s 3 of the 2009 act?
Sexual assault
What are the 5 different actus reus for sexual assault?
- sexual penetration of vagina, anus or mouth of another person
- sexual touching of another person
- other sexual contact (bodily or otherwise)
- sexually ejaculating semen onto another
- sexually emitting urine or saliva onto another person
Why is there an overlap with sexual assault by penetration and sexual assault and rape?
To ensure prosecution is possible where:
- it is uncertain whether penetration was penile or not.
- it is uncertain whether there was penetration.
What is covered by s4-7 of the act?
coercing or compelling sexual activity