Part 3b: Sexual offences Flashcards
How did the 2009 Act change the legal definition of rape?
The 2009 Act abolished common law rape and introduced a new legal framework. Under the Act, rape is now a crime of violence that can be committed by a man. Section 1 of the Act defines rape as when the accused has sex with someone without their consent and without any reasonable belief in consent, with penetration occurring to any extent.
What is Sexual Assault by Penetration under the 2009 Act?
Sexual Assault by Penetration occurs when the accused, without the complainer’s consent, penetrates them sexually using any part of their body or an object, to any extent. This is treated as a distinct crime under the Act.
What does consent mean under the 2009 Act?
Consent is defined as free agreement. For consent to be valid, it must be given willingly and voluntarily without any manipulation, force, or deception.
What circumstances under Section 13 of the 2009 Act make it impossible for someone to consent?
The following circumstances make consent invalid under Section 13 of the 2009 Act:
If the person is extremely drunk.
If violence has been used against them.
If they have been unlawfully detained or kidnapped.
If the accused deceives them (e.g., pretending a medical examination is for another purpose).
If the accused impersonates someone the complainer knows (e.g., pretending to be their husband).
If the person is unconscious or asleep.
If someone else consents on their behalf.
What does Section 15 of the 2009 Act state about consent in sexual offences?
Section 15 of the 2009 Act clarifies that the accused cannot argue that they assumed the victim consented to sexual activity. Furthermore, consent can be withdrawn at any point, even during the act itself.
What does Section 16 of the 2009 Act require from the accused regarding consent?
Section 16 of the 2009 Act states that if the accused claims they genuinely believed the victim was consenting, they must demonstrate what steps they took to ascertain consent. This is to ensure that the accused took reasonable care to confirm the victim’s consent.
Where is Incest defined in Scottish law?
Incest is a statutory offence under the Criminal Justice (Scotland) Act 1995 and is not part of the Sexual Offences (Scotland) Act 2009.
Who can be charged with incest under Scottish law?
Incest applies to close family relationships such as father, son, grandfather, great-grandfather, grandson, great-grandson, brother, uncle, nephew, and also to adoptive parents and siblings, not just blood relatives.
What type of sexual activity constitutes incest under Scottish law?
Incest only applies to sexual intercourse. Oral and anal sex do not fall under this offence.
What are the defences to a charge of incest?
A possible defence to incest is if the accused did not know they were related to the other person.
Does incest apply if the parties involved do not consent?
Incest does not apply if the parties involved did not consent. Both parties need to be consenting for the offence to be considered.
What is a key change introduced by the Domestic Abuse (Scotland) Act 2018?
The Domestic Abuse (Scotland) Act 2018 criminalises a wider range of abusive behaviours, including psychological and emotional abuse, such as coercive control, in addition to physical violence.
What must be proven for a charge of domestic abuse under the new law?
To prove domestic abuse, the following must be demonstrated:
The abuse was directed at a partner or ex-partner.
There was a pattern of abusive behaviour, with two or more incidents that caused fear, alarm, or distress.
The behaviour could be physical or sexual but doesn’t have to be.
The perpetrator intended to cause harm or was reckless as to whether harm would occur.
The law applies to any intimate partner or ex-partner, whether living together or not.
What type of abusive behaviours does the Domestic Abuse (Scotland) Act 2018 cover?
The Domestic Abuse (Scotland) Act 2018 covers a broad range of abusive behaviours, such as:
Physical abuse and sexual abuse.
Psychological abuse, including threats, intimidation, and controlling actions.
Isolation from family and friends.
Controlling finances or activities, including restricting freedom of movement or access to resources like bank cards or car keys.
How does the new law view the impact of domestic abuse on children?
Under the Domestic Abuse (Scotland) Act 2018, if a child (under 18) is adversely affected by domestic abuse, even if they were not the target, the offence is considered more serious and may result in a longer sentence.
