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
What is the actus reus for the offences in ss 4-7
Causing B to participate in/ or become involved in sexual activity without their consent.
Are ss-4-7 offences crimes of intention?
yes
Do coercing or compelling sexual activity offences require a lack of reasonable consent?
yes
Which offence out of the ss4-7 offences does not require the purpose of either obtaining sexual gratification or humiliating, distressing or alarming the complainer?
s 4 - sexual coercion
What is the offence in s4 of the 2009 act?
s 4 - sexual coercion - causing another to participate in sexual activity
Which section could cover female rape not covered by s2 and 3?
s 4
s 5 of the 2009 covers what offence?
s 5 - Coercing person into being present during sexual activity
Which section covers coercing person into looking at a sexual image?
s 6
what is a sexual image as per s 6?
still or moving image of someone engaging in sexual activity
OR
genitals
Does s 6 include images if the complainer? (i.e. revenge porn)
No this is covered in the Abusive behaviour and Sexual Harm (s) Act 2016
What would be a defence for s 6?
If complainer consented to the image or if there was reasonable belief of consent.
What is defined as communicating indecently under s 7?
sending sexual communication to B
OR
causing B to see/hear communication
Focused on actions sender - not necessary for receiver to appreciate sexual nature or even know it was sent.
What is covered by the s 8 offence of sexual exposure?
exposing genitals in a sexual manner without B’s consent.
What Is the mens rea for s 8 sexual exposure?
Intention to expose
intention B will see A’s genitals
(Lack of reasonable belief in B’s consent & for the purpose of obtaining sexual gratification or humiliating, distressing or alarming B)
s 9 and 10 cover which offence?
Voyeurism
- observing private act/operating equip with intention that A or C will look at B doing act / recording / upskirting
How is ‘private act’ defined in s10?
in a place you would reasonable expect privacy.
- genitals/buttocks/breasts uncovered or in underwear
- toilet OR performing sexual act not ordinarily done in public.
Where is the general definition of consent and what is it?
s 12 - consent = free agreement
What section specifically describes circumstances where consent is absent?
s 13 (2)
What is covered in s 13(2)(a)
13(2)(a) - incapable of consent because of intoxication
Was there deemed to be consent in R v Bree?
Yes
R v Bree
* passing out/vomiting/memory loss NOT considered a lack of capacity to consent
What is covered in s 13(2)(b)
Where B agrees or submits to conduct because of violence/threat of violence against B or any other person
i.e. so if threat happens before and is the reason for agreeing - no consent.
Must be a threat of violence - other threats may be covered by s 12 lack of free agreement
What is covered in s 13(2)(c)
13(2)(c) B agrees/submits because unlawfully detained by A
What is covered in s 13(2)(d)
13(2)(d) B is mistaken as a result of deception by A, as to nature/purpose of conduct
What is covered in s 13(2)(e)
13(2)(e) A impersonates someone known personally to B
What is covered in s 13(2)(f)
13(2)(f) no one can consent on B’s behalf
what does s14 say?
person who is asleep or unconscious cannot consent.
consenting to one sexual act does not mean consent to others & consent can be withdrawn at any time - which section says this?
s 15
2 key mens rea points required for sexual assault crimes?
- B’s non-consent
2. A’s lack of reasonable belief in B’s consent
Will court look at steps taken b A to ascertain B’s consent with regards to whether belief was reasonable? (s)
s 16 - yes.
But honest but unreasonable mistake of consent would not negate liability.
Which section covers offences against under-13s?
ss 18-27
What 2 things are distinctive about sexual offences against under-13s?
- consent is irrelevant
2. sex with a young child is always ‘rape’
Is there a defence if mistaken of age for:
- under 13s?
- 13-16s?
- under 13s -NO defence if mistaken of age
2. 13-16s - yes if A reasonable believed B was over 16. or if A and B within 2 years of age (not penetration/oral)
Which 2 common law offences remain after the 2009 act abolished most?
- incest
2. Public indecency
