Criminal Legislation Flashcards
Sexual Offences (Scotland) Act 2009, s 1
(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 (3) In a case where penetration is initially consented to but at some point of time theconsent is withdrawn, subsection (2) is to be construed as if the reference in it to acontinuing act from entry were a reference to a continuing act from that point of time.(4) In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.
Sexual Offences (Scotland) Act 2009, s 2
(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 (3) In a case where penetration is initially consented to but at some point of time the consent is withdrawn, subsection (2) is to be construed as if the reference in it to a continuing act from entry were a reference to a continuing act from that point of time.(4)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 Offences (Scotland) Act 2009, s 3
(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 actfrom entry until withdrawal of whatever is intruded; but this subsection is subject to subsection (4). (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.12
(5) Without prejudice to the generality of paragraph (a) of subsection (2), the referencein that subsection to penetration by any means is to be construed as including areference to penetration with A’s penis.
Sexual Offences (Scotland) Act 2009, s 12
In Parts 1 and 3 [of this Act] “consent” means free agreement (and related expressionsare to be construed accordingly)
Sexual Offences (Scotland) Act 2009, s 13
(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.
Sexual Offences (Scotland) Act 2009, s 14
(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
Sexual Offences (Scotland) Act 2009, s 15
(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. (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 beenwithdrawn, it takes place, or continues to take place, without consent.
Sexual Offences (Scotland) Act 2009, s 16
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
Criminal law (Consolidation) (Scotland) Act 1995, s 1
(1) Any male person who has sexual intercourse with a person related to him in a degree specified in column 1 of the Table set out at the end of this subsection, or any female person who has sexual intercourse with a person related to her in a degree specified in column 2 of that Table, shall be guilty of incest, unless the accused proves that he or she—(a) did not know and had no reason to suspect that the person with whom he or she had sexual intercourse was related in a degree so specified; or (b) did not consent to have sexual intercourse, or to have sexual intercourse with that person; or (c) was married to that person, at the time when the sexual intercourse took place, by a marriage entered into outside Scotland and recognised as valid by Scots law.
Domestic Abuse (Scotland) Act 2018
Tutorial
Criminal Justice and Licensing (Scotland) Act 2010, ss 38 and 39
Behaving in a threatening or abusive manner and stalking
Criminal Procedure (Scotland) Act 1995, s 51A: mental disorderCriminal Procedure (Scotland) Act 1995, S 51B: diminished responsibility
Burdens of proof: Two burdens of proof: “persuasive”, and “evidential“. “Incidence”: who carries burden of proof in criminal cases? Standards of proof: “beyond a reasonable doubt” and “on the balance of probabilities”.
Criminal Procedure (Scotland) Act 1995, ss 101(1) and 166 (3)
Previous convictions
Criminal Procedure (Scotland) Act 1995, ss 274, 275 and 275A.
Character of complainers
Criminal Procedure (Scotland) Act 1995, s 259 - hearsay evidence
Exceptions apply where the person who made the original statement: (1) is dead or physically or mentally unfit (2) is outwith the UK and it is not reasonably practicable to secure his or her attendance at the trial or otherwise obtain their evidence …(3) cannot be found and all reasonable steps have been taken to find him. (4) by leave of the court, refuses to give evidence. (5) refuses to give evidence, having been “directed” by the judge to do so”.
