Sexual offences Flashcards
How does the Sexual Offences (Scotland) Act 2009 define consent?
“Free agreement” (s12).
s13 and 14 look at situations where consent is deemed to be absent.
s15 explains that consent can be withdrawn, is not implied for other acts.
s16 details the reasonable belief to consent and states that one must take steps to ascertain whether it is present.
Under s13 of the 2009 Act, what are the specific situations in which consent is deemed to be absent?
(a) intoxication.
(b) threats of violence.
(c) unlawful detention.
(d) mistake or deception.
(e) impersonating another.
(f) indication of agreement is from an individual other than B.
How does the 2009 Act define rape?
s1(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.
So, what are the actus reus and mens rea of rape?
Actus reus: sexual penetration without B’s consent.
Mens rea: absence of a reasonable belief that B consents.
What is the actus reus of sexual assault by penetration?
s2 of the 2009 Act.
- Where A penetrates B’s vagina or anus with any part of A’s body or anything else, and B does not consent to this.
What are the actus reus and mens rea of sexual assault?
s3 of the 2009 Act.
- Where A does any of the following without B’s consent:
(a) penetrates sexually, by any means or to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B sexually,
(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 ejaculate semen onto B,
(e) intentionally or recklessly emits urine or saliva onto B sexually.
What is the actus reus of sexual coercion?
Where A (intentionally) causes B to participate in a sexual activity and B does not consent to this.
What does it mean if conduct is “sexual”?
2009 Act s60(2).
- If “a reasonable person would, in all the circumstances of the case, consider it to be sexual”.
Where is the offence of administering a substance for sexual purposes listed?
s11 of the 2009 Act.
Where can you find the offence of disclosing, or threatening to disclose, an intimate photograph or film?
s2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2009.
What are the sexual offences against young children under the 2009 Act?
- Rape of a young child (s18).
- Sexual assault on a young child by penetration (s20).
- Sexual assault on a young child (s20).
- Causing a young child to participate in a sexual activity (s21).
- Causing a young child to be present during a sexual activity (s22).
- Causing a young child to look at a sexual image (s23).
- Communicating indecently with a young child (s24).
- Sexual exposure to a young child (s25).
- Voyeurism towards a young child (s26).
What does s27 of the 2009 Act state?
It is NOT a defence to any of the “young child” offences that A believe B to have attained the age of 13 years.
- THIS WOULD STILL BE AN OFFENCE REGARDLESS.
What is the connection between the “older child” offences and the Part 1 offences.
While an offence is committed regardless of consent, if prosecution believe consent is absent, they would charge it under the corresponding Part 1 offence (e.g. rape as opposed to rape of an older child).
- These offences would only be charged if consent was obtained, but is invalid.
What is the valid defence for “older child” offences?
That A reasonably believed that B had attained the age of 16 years (subject to exceptions)
- s39 of the 2009 Act.
What is the offence of older children engaging in sexual conduct with each other?
s37 of the 2009 Act.
- Where A and B are both older children.
- Both would be guilty of an offence (assuming conduct is consensual).
- If either A or B is over 16, they have a “proximity of age” defence if they are less than two years apart in age. Defence is not available if charge founded on vaginal/anal intercourse or orogenital contact.
