Lesson 9.2 sexual Offences Legislation Flashcards
What is consent?
The sexual offences (Scotland) Act 2009 provides that consent is to be defined as “free agreement”. Covering situations where someone may have consented under duress.
The act gives examples of where there is not consent:
Where sexual conduct occurs at a time when the victim is incapable of consenting to it because of the effects of alcohol or any other substance
Where the victim agrees or submits to the sexual conduct because of violence or threats of violence against them or any other person
Where the victim agrees or submits to the sexual conduct because they are unlawfully detained by the assailant
Where the victim agrees or submits to the sexual conduct because he or she is mistaken as to the nature or purpose of the conduct as a result of deception by the assailant
Where the victim agrees or submits to the sexual conduct because the assailant induces him or her to agree or submit to the conduct by impersonating a person known personally to the victim
Where the only expression or indication of agreement to the sexual conduct is from the person other than the victim
Where victim is asleep of unconscious
What is meant by consent withdrawn
The act also clarifies the position where consent is given then subsequently withdrawn. It states the following:-
Consent to one type of conduct does not itself imply consent to any other type of conduct
Consent to conduct may be withdrawn at any time before or on the case of continuing conduct, during the conduct.
If the conduct takes place or continues to take place after consent has been withdrawn, it takes place or continues to take place without consent.
What is meant by reasonable belief?
Each offence which follows refers to absence of consent and where the accused has no reasonable belief that the victim had consented.
In terms of proving reasonable belief, the suspect would have to demonstrate how they had reasonable belief of consent and what actions they had taken to conclude they had consent.
