Sexual Offences Flashcards
What is the actus reus of rape prior to 2009 act?
Constituted by a man having vaginal sexual intercourse with a woman without her consent - Lord Advocates Reference (No 1 of 2001)
What is the mens Rea of rape prior to the 2009 act?
Where the man knew that the woman was not consenting or was at any rate reckless as to whether she was consenting - Lord Advocates Reference (No 1 of 2001)
What did Jamieson v HM Advocate show?
If a man has intercourse with a woman in honest belief that she is consenting to this he cannot be guilty of rape
What were limitations of the Scots law common law crime of rape?
Belief in consent did not need to be reasonable to satisfy mens Rea requirement
No such thing as oral or anal rape (only a woman could be raped)
Rape required penile penetration - meaning only men could be convicted of rape
What did the Sexual Offences (Scotland) Act 2009 do?
Modernised Scots law of sexual offences
Only applies to crimes after it came into force
Abolished certain common law crimes
What does section 1 of the Sexual Offences Act refer to?
Rape
What did the section 1 state?
Penile penetration is required - still only men who can commit rape
Rape is no longer restricted to vaginal penetration - vagina, anus or mouth
Consent can be withdrawn at any time
What does consent mean under this act and when can someone not consent?
Free agreement
Cannot consent when asleep or unconscious and consent can. be withdrawn at any time
When is free agreement absent?
When conduct occurs when under effect of alcohol or any substance
Because of violence
As a result of deception
Impersonation
What is the mens Rea for rape under the Sexual Offences (Scotland) Act 2009?
Where someone is without any reasonable belief that B is consenting and penetrates to any extent either intending to do so or reckless as to whether there is penetration
What does section 16 of the 2009 act state?
Regard is to be had whether the person took any steps to ascertain whether there was consent or as the case may be knowledge to what those steps were
