Lewd Practices (common law) Flashcards
Crime to behave in a “lewd, indecent and libidinous” manner to children under/around the age of puberty (14 boys, 12 girls)
Age if the victim may not be the essence of the crime (Batty v HMA referring to Lord Morison’s opinion in McLaughlan v Boyd which stated that “all shamelessly indecent conduct is criminal” in support of its decision that the victim did not have to be 12 or less. (Batty v HMA - it is not the indecency of the conduct itself which makes it criminal but the quality of shamelessness. The question in each case is whether that necessary requirement has been demonstrated. In the case of complainers who are below the age of puberty the nature of the conduct and the age of the child will provide all that is needed on this point. When the child is at or above the age of puberty, something else is needed to demonstrate that the conduct complained of has the quality of shamelessness which is required to render it criminal. This point cannot be made the subject of fixed rules and each case will depend on its own facts.
In this case the relationship between the appellant as houseparent and the complainers as girls in his charge was such that indecent conduct by him towards them could properly be held to be shameless. This was a relationship of trust, which placed the girls in his house under his care and authority
What the jury were being asked to do was to examine the relationship and the conduct which had been described in the evidence. They were being asked to decide whether the relationship of houseparent to pupil existed between the parties at the relevant time and they were told that, if that relationship existed and the conduct complained of was deliberate, not accidental, they were entitled to find the appellant guilty. In our opinion it was not necessary for the sheriff to go further, on the facts of this case, and we are not persuaded that there was a misdirection.
Consent is no defence
Can involve touching
Can involve indecent deisplays towards children
Mens rea is knowlingly or intentionally committing the act agains the child in question.
NB statutory protections for girls under s6 the Criminal Law (Consolidation) (Scotland) Act 1995 (repealed by 2009 act - see that Act for offences post 1 dec 2010. Common law would provide equivalent protection for boys. -Case on S6 is kissing a girl (above 12 but under 16) whilst in bed with him and his girlfriend having suggested within her hearing a 3 some. Boyle v Ritchie.
