INCEST & step children & member of same household Flashcards
Incest - S1 Criminal Law Consolidation (Scotland) Act 1995 (as amended & still in force
Applies only to heterosexual penetrative intercourse.
Illegitimacy = irrelevant
Half blood relationships are covered.(s1(2))
Forbidden degrees of relationship:
Parent (adoptive or former adoptive) (includes as defined by Human Fertilisation and Embryology Act 2008 and 2nd mother)
child (ie son/daughter) (adoptive or former adoptive)includes as defined by Human Fertilisation and Embryology Act 2008) - NOT STEP CHILD - SEE s2
grandparent
grandchild
brother
sister
aunt/uncle
nephew/niece
great grandparent
great grandchild
Defence
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.
CONSENT IRRELEVANT - if no consent = rape.
Encouragement might be relevant in sentencing but not relevant to guilt.
Intercourse with a step child/former step child:
s2 Criminal Law Consolidation (Scotland) Act 1995 (as amended & still in force
s2 Criminal Law Consolidation (Scotland) Act 1995 (as amended & still in force
guilty of an offence if:
step-child is either under the age of 21 years
or
step-child before the age of 18 years lived in the same household and was treated as a child of his or her family
Defence
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 a step-child or former step-child; or
(b) believed on reasonable grounds that that person was of or over the age of 21 years; or
(c) did not consent to have sexual intercourse, or to have sexual intercourse with that person; or .
(d) 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. ..
CONSENT IRRELEVANT - if no consent = rape.
Encouragement might be relevant in sentencing but not relevant to guilt
Pre 1 Dec 2010 - Sex with someone under 16 who is a member of the same household and who he/she is in a position of trust.
s3 Criminal Law Consolidation (Scotland) Act 1995 (Repealed by 2009 Act)
s3 Criminal Law Consolidation (Scotland) Act 1995 (Repealed by 2009 Act)
Offence for any person of or over the age of 16 years who—
.
(a)has sexual intercourse with a child under the age of 16 years; .
(b) is a member of the same household as that child; and .
(c) is in a position of trust or authority in relation to that child,
Defence
the accused proves he/she
(a) believed on reasonable grounds that the person with whom he or she had sexual intercourse was of or over the age of 16 years; 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.
CONSENT IRRELEVANT - if no consent = rape.
Encouragement might be relevant in sentencing but not relevant to guilt
Pre 1 Dec 2010 - Sex with someone under 16
s5 Criminal Law Consolidation (Scotland) Act 1995 (Repealed by 2009 Act)
Pre 1 Dec 2010 - Sex with someone under 16
s5 Criminal Law Consolidation (Scotland) Act 1995 (Repealed by 2009 Act
NO DEFENCE if child is below 13 (and liable on indictment to life imprisonment).
If child 13 - 16 - defence:
(a) had reasonable cause to believe that the girl was his wife; or .
(b) being a man under the age of 24 years who had not previously been charged with a like offence, had reasonable cause to believe that the girl was of or over the age of 16 years.
CONSENT IRRELEVANT - if no consent = rape.
Encouragement might be relevant in sentencing but not relevant to guilt
