GUIDANCE ON THE SEXUAL OFFENCES (SCOTLAND) ACT 2009 PART 3: CAPACITY TO CONSENT OF PERSONS WITH A MENTAL DISORDER

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1 GUIDANCE ON THE SEXUAL OFFENCES (SCOTLAND) ACT 2009 PART 1: NON-CONSENSUAL OFFENCES SECTION 1: RAPE 3 SECTION 2: SEXUAL ASSAULT BY PENETRATION 3 SECTION 3: SEXUAL ASSAULT 4 SECTION 4: SEXUAL COERCION 4 SECTION 5: COERCING A PERSON INTO BEING PRESENT DURING A SEXUAL ACTIVITY 5 SECTION 6: COERCING A PERSON INTO LOOKING AT A SEXUAL IMAGE 5 SECTION 7: COMMUNICATING INDECENTLY ETC 6 SECTION 8: SEXUAL EXPOSURE 6 SECTION 9: VOYEURISM 7 SECTION 10: INTERPRETATION OF SECTION 9 8 SECTION 11: ADMINISTERING A SUBSTANCE FOR A SEXUAL PURPOSE 9 PART 2: CONSENT AND REASONABLE BELIEF SECTION 12: MEANING OF CONSENT AND RELATED EXPRESSIONS 11 SECTION 13: CIRCUMSTANCES IN WHICH CONDUCT TAKES PLACE WITHOUT FREE AGREEMENT 11 SECTION 14: CONSENT: CAPACITY WHILE ASLEEP OR UNCONSCIOUS 12 SECTION 15: CONSENT: SCOPE AND WITHDRAWAL 12 SECTION 16: REASONABLE BELIEF 12 PART 3: CAPACITY TO CONSENT OF PERSONS WITH A MENTAL DISORDER SECTION 17: CAPACITY TO CONSENT 13 PART 4: CHILD SEX OFFENCES SECTION 18: RAPE OF A YOUNG CHILD 14 SECTION 19: SEXUAL ASSAULT ON A YOUNG CHILD BY PENETRATION 14 SECTION 20: SEXUAL ASSAULT ON A YOUNG CHILD 15 SECTION 21: CAUSING A YOUNG CHILD TO PARTICIPATE IN A SEXUAL ACTIVITY 15 SECTION 22: CAUSING A YOUNG CHILD TO BE PRESENT DURING A SEXUAL ACTIVITY 15 SECTION 23: CAUSING A YOUNG CHILD TO LOOK AT A SEXUAL IMAGE 16 SECTION 24: COMMUNICATING INDECENTLY WITH A YOUNG CHILD ETC 16 SECTION 25 SEXUAL EXPOSURE TO A YOUNG CHILD 17 SECTION 26: VOYEURISM TOWARDS A YOUNG CHILD 17 SECTION 27: BELIEF THAT CHILD HAD ATTAINED THE AGE OF 13 YEARS 17 SECTION 28: HAVING INTERCOURSE WITH AN OLDER CHILD 18 SECTION 29: ENGAGING IN PENETRATIVE SEXUAL ACTIVITY WITH OR TOWARDS AN OLDER CHILD 18 SECTION 30: ENGAGING IN SEXUAL ACTIVITY WITH OR TOWARDS AN OLDER CHILD 18 SECTION 31: CAUSING AN OLDER CHILD TO PARTICIPATE IN A SEXUAL ACTIVITY 19 SECTION 32: CAUSING AN OLDER CHILD TO BE PRESENT DURING A SEXUAL ACTIVITY 19 SECTION 33: CAUSING AN OLDER CHILD TO LOOK AT A SEXUAL IMAGE 19 SECTION 34: COMMUNICATING INDECENTLY WITH AN OLDER CHILD ETC 20 SECTION 35: SEXUAL EXPOSURE TO AN OLDER CHILD 20 SECTION 36: VOYEURISM TOWARDS AN OLDER CHILD 20 1

2 SECTION 37: OLDER CHILDREN ENGAGING IN SEXUAL CONDUCT WITH EACH OTHER 21 SECTION 38: PENETRATION AND CONSENT FOR THE PURPOSES OF SECTION SECTION 39: DEFENCES IN RELATION TO OFFENCES AGAINST OLDER CHILDREN 22 SECTION 40: SPECIAL PROVISION AS REGARDS FAILURE TO ESTABLISH WHETHER CHILD HAS OR HAS NOT ATTAINED CERTAIN AGES 23 SECTION 41: SPECIAL PROVISION AS REGARDS AGE: DEEMING PROVISIONS 23 PART 5: ABUSE OF POSITION OF TRUST SECTION 42: SEXUAL ABUSE OF TRUST 25 SECTION 43: POSITIONS OF TRUST 25 SECTION 44: INTERPRETATION OF SECTION SECTION 45: SEXUAL ABUSE OF TRUST: DEFENCES 26 SECTION 46: SEXUAL ABUSE OF TRUST OF A MENTALLY DISORDERED PERSON 27 SECTION 47: SEXUAL ABUSE OF TRUST OF A MENTALLY DISORDERED PERSON: DEFENCES 27 PART 6: PENALTIES SECTION 48: PENALTIES 28 PART 7: MISCELLANEOUS AND GENERAL SECTION 49: ESTABLISHMENT OF PURPOSE FOR THE PURPOSES OF SECTIONS 5 TO 9, 22 TO 26 AND 32 TO SECTION 50: POWER TO CONVICT FOR OFFENCE OTHER THAN THAT CHARGED 29 SECTION 51: EXCEPTIONS TO INCITING OR BEING INVOLVED ART AND PART IN OFFENCES UNDER PART 4 OR 5 29 SECTION 52: COMMON LAW OFFENCES 30 SECTION 53: CONTINUITY OF LAW ON SEXUAL OFFENCES 30 SECTION 54: INCITEMENT TO COMMIT CERTAIN SEXUAL ACTS OUTSIDE THE UNITED KINGDOM 31 SECTION 55: OFFENCES COMMITTED OUTSIDE THE UNITED KINGDOM 31 SECTION 56: CONTINUITY OF LAW ON SEXUAL OFFENCES COMMITTED OUTSIDE THE UNITED KINGDOM 32 SECTION 57: OFFENCES BY BODIES CORPORATE ETC 32 ANNEX A PENALTIES FOR OFFENCES 34 ANNEX B - REVISED LIST OF OFFENCES AGAINST CHILDREN UNDER THE AGE OF 17 YEARS TO WHICH SPECIAL PROVISIONS APPLY 39 2

3 Part 1: Non-Consensual Offences 1. Sections 1 to 10 deal with offences in which the accused is alleged to have engaged in sexual activity with, or directed towards, the complainer without the complainer s consent. 2. The offences at Part 1 of the Act are committed where the complainer does not consent to the conduct and the accused has no reasonable belief that the complainer consents to the conduct. Consent is defined at Part 2 of the Act and the guidance on that Part should be considered alongside the guidance on the non-consensual offences. 3. It should be noted that where reference is made to penalties and to the courts in which an offence is tried, if the accused is a child (under 16 years of age or aged 16 or 17 and subject to a supervision requirement), the child may be dealt with in the Children s Hearings System through being referred to the Children s Reporter rather than through the criminal courts. Section 1: Rape 4. Section 1 provides that it is an offence for a person (A) to penetrate with his penis the vagina, anus or mouth of another person (B), either intentionally or recklessly, without that person s consent, and without any reasonable belief that B consents. 5. This section replaces the common law offence of rape, which is restricted to vaginal penetration, with a wider offence covering vaginal, anal and oral penetration. As such, it covers conduct which would previously have been prosecuted using the common law offences of indecent assault and sodomy and, unlike the common law offence of rape, covers both female and male victims. 6. The offence covers surgically constructed genitalia, for example as a result of gender reassignment surgery. 7. The offence is triable in the High Court on indictment only, and the maximum penalty is life imprisonment. Section 2: Sexual assault by penetration 8. Section 2 provides that it is an offence for a person (A) intentionally or recklessly to sexually penetrate the vagina or anus of another person (B), without B s consent and without any reasonable belief that B consents. The offence is committed where penetration is by a part of A s body (for example, a finger) or any other object (for example, a bottle or vibrator). Such conduct would previously have been prosecuted under the common law as an indecent assault. 9. Sexual is defined at section 60(2) of the Act. The requirement that the penetration is sexual ensures that practitioners who conduct intimate 3

4 searches and medical procedures without a sexual motive do not commit this offence. 10. The offence of sexual assault by penetration provides that penetration is defined as including penile penetration. There is therefore an element of overlap between the offences of rape and sexual assault by penetration. However, it is not intended that rape would be prosecuted using this section. The purpose of the overlap is to provide for the situation in which the complainer alleges that he or she was penetrated but is unsure whether penetration was or was not with a penis because, for example, because he or she was blindfolded at the time of the alleged assault. 11. The offence is triable on indictment only and has a maximum penalty of life imprisonment. Section 3: Sexual assault 12. Section 3 provides that it is an offence for a person (A) intentionally or recklessly to: sexually penetrate the vagina, anus or mouth of another person (B), to sexually touch B; to engage in any other form of sexual activity resulting in physical contact with B, whether directly or through clothing, and whether with a body part or with an implement; to ejaculate semen onto B; or to emit urine or saliva onto B sexually. Previously, such conduct would have been prosecuted as indecent assault. 13. There is an overlap between the offences of rape, sexual assault by penetration and that of sexual assault. Where there is sufficient evidence, non-consensual penile penetration of the vagina, anus or mouth would be charged as rape, and non-consensual penetration of the vagina or anus with any other part of a person s body or another object would normally be charged as sexual assault by penetration. 14. Touching covers all physical contact, including touching with any part of the body or with anything else, and would cover touching through clothing, for example, where a person rubs up against someone s private parts through their clothing for sexual gratification. 15. The offence is triable summarily or on indictment. Where tried on indictment, the maximum penalty is life imprisonment. Section 4: Sexual coercion 16. Section 4 provides that it is an offence for a person (A) intentionally to cause another person (B) to participate in a sexual activity, without B s consent, and without any reasonable belief that B consents. 4

5 17. There is a degree of overlap with the offence of sexual assault in cases where the perpetrator compelled the victim to engage in conduct which involved physical contact with the perpetrator. However, this offence is also intended to capture coercive sexual conduct which does not involve physical contact between the offender and the victim. This may occur in a range of circumstances. For example, the offence would be committed where an offender compelled the victim to have sex with a third party, to engage in masturbation, or to have sexual contact with an animal. 18. The offence is triable summarily or on indictment. Where tried on indictment, the maximum penalty is life imprisonment. Section 5: Coercing a person into being present during a sexual activity 19. Section 5 provides that it is an offence for a person (A) to intentionally engage in a sexual activity in the presence of another person (B) or intentionally cause B to be present while a third person engages in a sexual activity, without B s consent and without any reasonable belief that B consents. At present, such conduct might be prosecuted at common law as a breach of the peace or as public indecency. 20. The offence is committed where it may reasonably be inferred that A acted for the purpose of obtaining sexual gratification, or for the purpose of humiliating, distressing or alarming B. As such, the offence would not be committed in circumstances where a couple engage in a sexual activity in a room in which another person is present if it was not their intent to obtain sexual gratification from the presence of that other person, and they were merely indifferent to that person s presence. However, depending on the circumstances of the case, such conduct may nonetheless constitute the offences of breach of the peace or public indecency (for example where it takes place in public.) 21. Where it is alleged that the accused acted for the purpose of humiliating, alarming or distressing the complainer, it is not necessary that the person who was present during the sexual activity was caused actual humiliation, alarm or distress. It is the accused s intent to cause such humiliation, alarm or distress which determines whether an offence was committed. 22. The offence is triable summarily or on indictment. The maximum penalty on conviction on indictment is 10 years imprisonment. Section 6: Coercing a person into looking at a sexual image 23. Section 6 provides that it is an offence for a person (A) to intentionally cause another person (B) to look at a sexual image without B s consent and without any reasonable belief that B consents. At present, such conduct might, depending on the circumstances, be prosecuted at common law as a breach of the peace. Where the sexual image is displayed publicly, it might 5

6 also constitute an offence under the Indecent Displays (Control) Act 1981, which prohibits the display, in a public place, of indecent materials. 24. As with the offence at section 5, the offence is committed where it may reasonably be inferred that A acted for the purpose of obtaining sexual gratification, or for the purpose of humiliating, distressing or alarming B. As such, this offence would not be committed by, for example, a teacher who used an image of genitalia in the teaching of biology or sex education as his or her intent would not be to cause humiliation, alarm or distress or to obtain sexual gratification. 25. A sexual image is defined as an image, whether moving or still, of a person engaging in a sexual activity, or of a person s genitals (including an imaginary person s genitals). 26. The offence is triable summarily or on indictment. The maximum penalty on conviction on indictment is 10 years imprisonment. Section 7: Communicating indecently etc 27. Section 7 provides for two offences concerning non-consensual sexual communication. 28. Section 7(1) provides that it is an offence for a person (A) to send or otherwise direct, by whatever means, a sexual verbal communication to another person (B) without B s consent and without any reasonable belief that B consents. 29. Section 7(2) provides that that it is an offence for a person (A) to intentionally cause by any other means a person (B) to see or hear a sexual written communication or sexual verbal communication, without B s consent and without any reasonable belief that B consents. This offence might be committed in circumstances where a person (A) communicates sexually with a third person with the intent that the victim (B) would hear the communication and be caused humiliation, alarm or distress. 30. Both of these offences are committed where it may reasonably be inferred that A acted for the purpose of obtaining sexual gratification, or for the purpose of humiliating, distressing or alarming B. Previously, such conduct might, depending on the circumstances, have been prosecuted as a breach of the peace or under section 127 of the Communications Act 2003 and where the necessary intent cannot be proven, this may still be appropriate. 31. The offence is triable summarily or on indictment. The maximum penalty on conviction on indictment is 10 years imprisonment. Section 8: Sexual exposure 32. Section 8 provides that it is an offence for a person (A) to expose their genitals in a sexual manner to another person (B) without B s consent, and 6

7 without any reasonable belief that B consents. Such conduct would previously have been prosecuted under the common law as public indecency or as a breach of the peace. 33. The offence is committed where it may reasonably be inferred that A acted for the purpose of obtaining sexual gratification, or for the purpose of humiliating, distressing or alarming B. 34. The offence is primarily intended to catch activity such as flashing. The reference to consent is required to ensure that the offence does not inadvertently criminalise consensual conduct occurring in private, whilst at the same time ensuring that non-consensual flashing does not cease to be an offence because it takes place in a private place. Where it does not appear that the offender acted for the purpose of obtaining sexual gratification or causing fear, alarm or distress, or where the exposure does not appear to be sexual in manner (e.g. a streaker at a sporting event), in certain circumstances the conduct may nonetheless constitute an offence of breach of the peace, or of public indecency. 35. The offence is triable summarily or on indictment. The maximum penalty on conviction on indictment is 5 years imprisonment. Section 9: Voyeurism 36. Section 9, as amended by section 43 of the Criminal Justice and Licensing (Scotland) Act 2010, provides for an offence of voyeurism. It provides that it may be constituted by any of six types of conduct. In all cases, the offence is committed where A acts without B s consent and without any reasonable belief that B consents. Such conduct would previously have been prosecuted under the common law as a breach of the peace. 38. Section 9(2) provides that the offence is committed where a person (A) observes another person (B) doing a private act. This would, for example, cover the case where the accused looks through a window or peephole at someone using a lavatory or getting dressed. 39. Section 9(3) provides that the offence is committed where a person (A) operates equipment with the intention of enabling A or another person to observe B doing a private act. This would cover the case, for example, where a landlord operated a webcam to allow people, via the internet, to view for their sexual gratification live images of his tenant getting undressed. 40. Section 9(4) provides that the offence is committed where a person (A) records B doing a private act with the intention that A or another person will look at an image of B doing the act. This would cover the case, for example, where a person secretly recorded another person engaging in sexual activity to show others for their sexual gratification. Proof that the recording was done to provide sexual gratification might come from the fact that the images were subsequently posted on a pornographic website or published in a 7

8 pornographic magazine. The offence criminalises the person who records the image, rather than the person who looks at it. 41. Section 9(4A) provides that the offence is committed where a person (A) operates equipment beneath B s clothing to observe B s genitals or buttocks (whether exposed or covered by underwear) in circumstances where the genitals, buttocks or underwear would not otherwise be visible. This would cover the case where, for example, a person uses a hidden videocamera to view the buttocks or genitals of passers-by. 42. Section 9(4B) provides that the offence is committed where a person (A) records an image beneath B s clothing of B s genitals or buttocks (whether exposed or covered by underwear) in circumstances where the genitals or underwear would not otherwise be visible. This would cover the case, for example, where a person uses a hidden camera to record so-called up-skirt photographs of people. 43. Section 9(5) provides that the offence is committed where a person (A) installs equipment or constructs or adapts a structure or part of a structure with the intent of enabling himself or another person to do any of the acts above (e.g. observe or record B doing a private act.) This would cover the case where someone drilled a peep hole into a wall with the intention of spying on someone for sexual gratification. It would not be necessary for the peephole to have actually been used in that way. 44. In all cases, the offence is committed where it may reasonably be inferred that A acted for the purpose of obtaining sexual gratification, or for the purpose of humiliating, distressing or alarming B. As such, these provisions would not apply where, for example, a shop fitted CCTV in changing rooms for security purposes (though an offence under this section may be committed by someone who subsequently misused the CCTV for voyeuristic purposes). In circumstances where it is not possible to establish that the accused acted for the purpose of obtaining sexual gratification or causing humiliation, alarm or distress to the victim, the behaviour may, depending on circumstances, constitute a criminal offence (e.g. breach of the peace.) 45. The offence is triable summarily or on indictment. The maximum penalty on conviction on indictment is 5 years imprisonment. Section 10: Interpretation of section Section 10, as amended by section 43 of the Criminal Justice and Licensing (Scotland) Act 2010, provides definitions of private act, operating equipment and structure for the purpose of the voyeurism offence at section A private act is defined as an act done in a place and in circumstances in which the person would have a reasonable expectation of privacy where: 8

9 the person s genitals, buttocks or breasts are exposed or covered only with underwear, or the person is using a lavatory, or the person is doing a sexual act that is not of a kind ordinarily done in public. (this would not for example, include observing people cuddling or kissing in private.) 48. It would be a matter for the court to determine in each individual case whether the complainer was in a place which in the circumstances would reasonably be expected to provide privacy. 49. For the purposes of section 9, this section states that a structure includes a tent, vehicle or vessel or other temporary or moveable structure. Section 11: Administering a substance for a sexual purpose 50. Section 11 provides that it is an offence for a person (A) to intentionally administer a substance or cause a substance to be taken by another person (B) without B s knowledge and without any reasonable belief that B knows where A intends to stupefy or overpower B so that any person can engage in sexual activity involving B. 51. The offence replaces the provision at section 7(2)(c) of the Criminal Law (Consolidation) (Scotland) Act 1995, which provided that it is a criminal offence for a person to administer any drug, matter or thing to a woman or girl with the intent of stupefying or overpowering her so as to enable any person to engage in unlawful sexual intercourse with her. The new provision is wider in that it applies to both male and female victims, and in respect of any sexual activity and not only sexual intercourse. 52. The offence is intended to cover the use of so-called date rape drugs (for example chloroform, Gammahydroxybutyrate (GHB) and Rohypnol) administered without the victim s knowledge. It also covers the use of any other substance with the same intention. As such, it would cover the situation in which A spikes B s drinks with alcohol without B s knowledge (i.e. where B did not know that he was consuming alcohol). On the other hand, the offence would not cover A encouraging B to get drunk, or to take other intoxicating drugs, so that A could have sex with B, where B knew that he was consuming alcohol or drugs. However, if A subsequently engaged in sexual activity with B while he or she was incapacitated through drink or drugs, this may itself be a criminal offence (see section 13). 53. The substance may be administered to B in any way, for example, in a drink, by injection, or by covering B s face with a cloth impregnated with the substance. 54. The intended sexual activity need not involve the person (A) who administers the substance. If A administers a substance to B with the intention of enabling a friend (C) to engage in sexual activity with B, A would commit this offence. 9

10 55. The offence would be completed where A administered the substance or caused B to take it with the relevant purpose in mind, regardless of whether any sexual activity actually took place. Where the intended sexual activity does take place, both the administering of the substance and the substantive sexual offence could be charged. Even if the accused was acquitted of the substantive sexual offence, because there was doubt as to whether the sexual activity had in fact taken place, it should still be possible to convict the person of the administration of the substance with intent to commit the sexual offence, if the intent is proven. 10

11 Part 2: Consent and reasonable belief 56. Part 2 of the Act concerns consent. It provides for a definition of consent for the purpose of the offences at Part 1 of the Act concerning sexual activity without consent. This Part also makes provision concerning specific factual circumstances in which consent is absent, the scope and withdrawal of consent and factors to be taken into consideration in determining whether, when a person claims that they believed that another person was consenting, that person s belief as to consent was reasonable. Section 12 Meaning of consent and related expressions 57. Section 12 provides that consent means free agreement and related expressions are to be construed accordingly. Section 13 Circumstances in which conduct takes place without free agreement 58. Section 13 provides for a non-exhaustive list of factual circumstances in which conduct takes place without free agreement. Where the prosecution is able to prove that the accused did the relevant act, and that one of the circumstances outlined in subsection (2) existed, it is established as a matter of fact that the complainer did not consent to the conduct. 59. Subsection (2)(a) provides that there is no free agreement where the conduct takes place at a time where the complainer is incapable, because of the effect of alcohol or any other substance, of consenting to it. The effect of this subsection is not to provide that a person cannot consent to sexual activity after consuming any alcohol or taking any intoxicating substance. A person may have consumed alcohol (or any other intoxicating substance), and may even be quite drunk, without having lost the capacity to consent. However at the point where he or she is so intoxicated as to lose the capacity to choose whether to participate in sexual activity, any sexual activity that takes place, does so without the complainer s consent. 60. Subsection (2)(b) provides that there is no free agreement where the complainer agrees or submits to the conduct because of violence used against the complainer or any other person, or because of threats of violence against the complainer or any other person. 61. Subsection (2)(c) provides that there is no free agreement where the complainer agrees or submits to conduct because he or she is unlawfully detained by the accused. 62. Subsection (2)(d) provides that there is no free agreement where the complainer agrees or submits to the conduct because he or she is mistaken, as a result of deception by the accused, as to the nature or purpose of the conduct. This would apply, for example where a person is falsely told that digital vaginal penetration is a necessary medical procedure. 11

12 63. Subsection (2)(e) provides that there is no free agreement where the complainer agrees or submits to conduct because the accused induces the complainer to agree or submit to the conduct by impersonating a person known personally to the complainer. The inducement must be made by the accused, and not by a third person. The provision does not require that the person in question was in any particular relationship with the victim. 64. Subsection (2)(f) provides that there is no free agreement where the only expression or indication of agreement to the conduct is from a person other than the complainer. Section 14: Consent: capacity while asleep or unconscious 65. Section 14 provides that a person has no capacity, while asleep or unconscious, to consent to any conduct. Section 15: Consent: scope and withdrawal 66. Section 15 makes further provision regarding the scope of consent. It provides that consent to conduct does not of itself imply consent to any other conduct, that consent to conduct may be withdrawn at any time before or during the conduct and that if conduct takes place, or continues to take place, after consent has been withdrawn, it does so without consent. Section 16: Reasonable belief 67. Section 16 makes provision regarding factors to be taken into account by a court in determining, for the purpose of the offences at Part 1, whether a person s belief as to consent was reasonable. It provides that regard is to be had as to whether the person took any steps to ascertain whether there was consent, and, if so, what those steps were. The effect of this is not that a person who takes no steps to ascertain consent necessarily could not have a reasonable belief that the other person consented, but that the court would have to take into consideration this failure to take any steps to ascertain that there was consent in determining whether the accused s belief as to consent was, in fact, reasonable. 12

13 Part 3: Capacity to consent of persons with a mental disorder Section 17: Capacity to consent 68. Section 17 makes provision regarding the capacity to consent to sexual activity of a person with a mental disorder. It states that a person is incapable of consenting to conduct where, by reason of a mental disorder, he or she is unable to do one or more of the following: Understand what the conduct is; Form a decision as to whether to engage in the conduct, or as to whether the conduct should take place; or Communicate any such decision. 69. A mental disorder has the same meaning as in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (i.e. any mental illness, personality disorder or learning disability). 70. An offence of sexual abuse of trust of a mentally disordered person is provided for at section 47 of the Act. This offence concerns persons responsible for the care or treatment of persons with a mental disorder and applies irrespective of whether the person s mental disorder is such as to make them incapable of consenting to sexual activity. 13

14 Part 4: Child sex offences 71. Part 4 of the Act provides for specific offences which criminalise sexual activity with children who are under 16, the age of consent for sexual activity. 72. The Act distinguishes between young children, aged under 13, who are deemed to have no capacity to consent to sexual activity, and older children aged between who might be considered to have a limited capacity to consent to sexual activity but whose consent is to be disregarded in order to protect them from sexual exploitation and abuse. 73. The offences at sections concerning sexual activity with children aged under 13 have maximum penalties which are equivalent to the offences at Part 1 of the Act, on which they are modelled. 74. The offences at sections 28-36, concerning sexual activity with children aged have lower maximum penalties than the equivalent offences at Part 1 of the Act concerning sexual activity without consent. Where a person is accused of engaging in non-consensual sexual activity with a year old child, the presumption is that they would be charged with an offence under Part 1 of the Act, which have higher maximum penalties. The offences at sections can only be committed by a person who has attained the age of 16 years. However, section 37 provides that sexual intercourse and oral sex between year olds shall remain unlawful. Section 18: Rape of a young child 75. Section 18 provides that it is an offence for a person (A) to penetrate with his penis, either intending to do so, or reckless as to whether there is penetration, the vagina, anus or mouth of a child (B) who has not attained the age of 13 years. The offence is modelled on the offence of rape at section 1 but there is no need to establish an absence of consent as a child under the age of 13 is deemed to be incapable of consenting to sexual activity. It replaces the provision at section 5(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, though in certain circumstances this conduct may previously have been charged under the common law as lewd and libidinous conduct or practices. 76. The offence is triable in the High Court on indictment only, and the maximum penalty is life imprisonment. Section 19: Sexual assault on a young child by penetration 77. Section 19 provides that it is an offence for a person (A) to penetrate sexually the vagina or anus of a child (B) who has not attained the age of 13 years. The offence is modelled on the offence of sexual assault by penetration at section 2 but there is no need to establish an absence of consent as a child under the age of 13 is deemed to be incapable of consenting to sexual activity. 14

15 78. The offence is triable on indictment only, and the maximum penalty is life imprisonment. Section 20: Sexual assault on a young child 79. Section 20 provides that it is an offence for a person (A) intentionally or recklessly to: sexually penetrate the vagina, anus or mouth of a child (B) who as not attained age of 13 years; to sexually touch B; to engage in any other form of sexual activity resulting in physical contact with B, whether directly or through clothing, and whether with a body part or with an implement; or to ejaculate semen onto B; or to emit urine or saliva onto B sexually. The offence is modelled on the offence of sexual assault at section 3, but there is no need to establish an absence of consent as a child under the age of 13 is deemed to be incapable of consenting to sexual activity. 80. The offence is triable summarily or on indictment. Where tried on indictment, the maximum penalty is life imprisonment. Section 21: Causing a young child to participate in a sexual activity 81. Section 21 provides that it is an offence for a person (A) to intentionally cause a child (B) who has not attained the age of 13 years to participate in a sexual activity. This offence also applies where A does not directly participate in the sexual activity themselves, for instance by causing the child to participate in a sexual activity with a third person, whether that third party is a willing participant or another victim. The offence also covers cases where the accused makes the child carry out a sexual act, such as masturbation or stripping. The offence is based on the offence at section 4 but there is no need to establish an absence of consent as a child under the age of 13 is deemed to be incapable of consenting to sexual activity. 82. Examples of an adult causing or inciting a child to engage in a sexual activity could be promising a reward, persuading the child that it is perfectly acceptable behaviour that other children engage in all the time and that he or she would be abnormal not to agree. It is not intended to cover health professionals, or anyone else, who provides sex education to children. 83. The offence is triable summarily or on indictment. Where tried on indictment, the maximum penalty is life imprisonment. Section 22: Causing a young child to be present during a sexual activity 84. Section 22 provides that it is an offence for a person (A) to intentionally engage in a sexual activity in the presence of a child (B) who has not attained the age of 13 years or to intentionally cause B to be present while a third 15

16 person engages in a sexual activity, where A acts for the purpose of obtaining sexual gratification or for the purpose of causing humiliation, alarm or distress to the child. 85. The offence is intended to cover the situation where someone seeks sexual gratification not from the sexual act itself, but rather from the fact that he or she is performing that act in the presence of a young child. 86. The offence is based on the offence at section 5 but there is no need to establish an absence of consent as a child under the age of 13 is deemed to be incapable of consenting to sexual activity. 87. The offence is triable summarily or on indictment. Where tried on indictment, the maximum penalty is 10 years imprisonment. Section 23: Causing a young child to look at a sexual image 88. Section 23 provides that it is an offence for a person (A) to intentionally cause a child (B) who has not attained the age of 13 years to look at a sexual image, where A acts for the purpose of obtaining sexual gratification or for the purpose of causing humiliation, alarm or distress to the child. The offence is based on the offence at section 6 but there is no reference to consent as a child under the age of 13 is deemed to be incapable of consenting to sexual activity. 89. The offence is triable summarily or on indictment. Where tried on indictment, the maximum penalty is 10 years imprisonment. Section 24: Communicating indecently with a young child etc. 90. Section 24 provides for two offences, modelled on those at section 7, concerning indecent communication. 91. Section 24(1) provides that it is an offence for a person (A) to send or otherwise direct, by whatever means, a sexual written or verbal communication to a child who has not attained the age of 13 years. 92. Section 24(2) provides that it is an offence for a person (A) to intentionally cause by any other means a child who has not attained the age of 13 years to see or hear a sexual written or verbal communication. 93. Both of these offences are committed where it may reasonably be inferred that A acted for the purpose of obtaining sexual gratification, or for the purpose of humiliating, distressing or alarming the child. 94. The offence is triable summarily or on indictment. Where tried on indictment, the maximum penalty is 10 years imprisonment. 16

17 Section 25: Sexual exposure to a young child 95. Section 25 provides that it is an offence for a person (A) to expose their genitals in a sexual manner to a child (B) who has not attained the age of 13 years with the intention that B will see them, and for the purpose of obtaining sexual gratification or of humiliating, alarming or distressing B. The offence is modelled on the offence at section 8 but there is no need to establish an absence of consent as a child under the age of 13 is deemed to be incapable of consenting to sexual activity. 96. The offence is triable summarily or on indictment. Where tried on indictment, the maximum penalty is 10 years imprisonment. Section 26: Voyeurism towards a young child 97. Section 26, as amended by the Criminal Justice and Licensing (Scotland) Act 2010, provides for an offence of voyeurism towards a young child. It provides that a person (A) commits an offence if he or she does any of the following towards a child (B) who has not attained the age of 13 years: Observes B doing a private act Operates equipment with the intention of enabling A or another person to observe B doing a private act. Records B doing a private act with the intention that A or another person will look at an image of B doing the act. Operates equipment beneath B s clothing with the intention of enabling A or another person to observe B s genitals or buttocks (whether exposed or covered by underwear). Records an image beneath B s clothing of B s genitals or buttocks (whether exposed or covered by underwear). Installs equipment or constructs or adapts a structure or part of a structure (e.g. by drilling a peep hole ) with the intent of enabling A or another person to do any of the acts listed above. 98. The offence is modelled on the offence at section 9, but there is no need to establish an absence of consent as a child aged under 13 is deemed to be incapable of consenting to sexual activity. The offence is committed where it may reasonably be inferred that the accused acted for the purpose of obtaining sexual gratification, or for the purpose of humiliating, distressing or alarming the child (B). 99. The offence is triable summarily or on indictment. Where tried on indictment, the maximum penalty is 10 years imprisonment. Section 27: Belief that child had attained the age of 13 years 100. Section 27 provides that it is not a defence to any of the offences concerning children under the age of 13 that the accused believed that the child had attained the age of 13 years. This is in contrast with the offences concerning children aged 13-15, where it is provided that it is a defence that 17

18 the accused reasonably believed that the child had attained the age of 16 (see paragraphs , concerning section 39.) Section 28: Having intercourse with an older child 101. Section 28 provides that it is an offence for a person (A) who has attained the age of 16 years, to penetrate with his penis, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of a child (B) who has attained the age of 13 years and has not attained the age of 16 years (i.e. who is aged between 13 and 15) The offence is modelled on the offences at section 1 (rape) and section 18(rape of a young child) but there is no need to establish an absence of consent as the offence is committed regardless of whether or not the child consents. Where the child does not consent, however, it would be more appropriate to charge the accused with an offence of rape under section 1, for which the maximum penalty is higher The offence is triable summarily or on indictment. Where tried on indictment, the maximum penalty is 10 years imprisonment. Section 29: Engaging in penetrative sexual activity with or towards an older child 104. Section 29 provides that it is an offence for a person (A), who has attained the age of 16 years, to sexually penetrate the vagina or anus of a year old child (B) with any part of A s body or with any implement. The offence is modelled on the offence at section 2 of the Act but there is no need to establish an absence of consent as the offence is committed regardless of whether or not the child consents to the activity. However, where the child does not consent, it would be more appropriate to charge the accused with an offence under section 2, for which the maximum penalty is higher The offence is triable summarily or on indictment. Where tried on indictment, the maximum penalty is 10 years imprisonment. Section 30: Engaging in sexual activity with or towards an older child 106. Section 30 provides that it is an offence for a person (A) who has attained the age of 16 years intentionally or recklessly to: sexually penetrate the vagina, anus or mouth of a child (B) who is aged 13-15; sexually touch B; engage in any other form of sexual activity resulting in physical contact with B, whether directly or through clothing, and whether with a body part or with an implement; ejaculate semen onto B; or emit urine or saliva onto B sexually. 18

19 The offence is modelled on the offence of sexual assault at section 3, but there is no need to establish an absence of consent as the offence is committed regardless of whether the child consents to the activity. However, where the child does not consent, it would be more appropriate to charge the accused with an offence under section 3, for which the maximum penalty is higher The offence is triable summarily or on indictment. Where tried on indictment, the maximum penalty is 10 years imprisonment. Section 31: Causing an older child to participate in a sexual activity 108. Section 31 provides that it is an offence for a person who has attained the age of 16 years to intentionally cause a child who is aged to participate in a sexual activity. The offence is modelled on the provision at section 4 but there is no requirement that the child did not consent to participate in the sexual activity. However, where the child does not consent, it would be more appropriate to charge the accused with an offence under section 4, for which the maximum penalty is higher The offence is triable summarily or on indictment. Where tried on indictment, the maximum penalty is 10 years imprisonment. Section 32: Causing an older child to be present during a sexual activity 110. Section 32 provides that it is an offence for a person (A) who has attained the age of 16 years to intentionally engage in a sexual activity in the presence of a child (B) who is aged 13-15, or to intentionally cause B to be present while a third person engages in a sexual activity, where A acts for the purpose of obtaining sexual gratification or for the purpose of causing humiliation, alarm or distress. The offence is based on the offence at section 5 but there is no need to establish an absence of consent as the offence is committed irrespective of whether the child consents. However, where the child does not consent, it would be more appropriate to charge the accused with an offence under section 5, for which the maximum penalty is higher The offence is triable summarily or on indictment. Where tried on indictment, the maximum penalty is 5 years imprisonment. Section 33: Causing an older child to look at a sexual image 112. Section 33 provides that it is an offence for a person (A) who has attained the age of 16 years, to intentionally cause a child (B) aged to look at a sexual image, where A acts for the purpose of obtaining sexual gratification or for the purpose of causing humiliation, alarm or distress. The offence is based on the offence at section 6 but there is no need to establish an absence of consent as the offence is committed irrespective of whether the child consents. However, where the child does not consent, it would be more appropriate to charge the accused with an offence under section 6, for which the maximum penalty is higher. 19

20 113. The offence is triable summarily or on indictment. Where tried on indictment, the maximum penalty is 5 years imprisonment. Section 34: Communicating indecently with an older child etc 114. Section 34 provides for two offences concerning indecent communication with a year old child, modelled on the offences at section Section 34(1) provides that it is an offence for a person (A) to send or otherwise direct, by whatever means, a sexual verbal or written communication to a child aged Section 34(2) provides that that it is an offence for a person (A) who has attained the age of 16 years to intentionally cause by any other means a child aged to see or hear a sexual written communication or sexual verbal communication Both of these offences are committed in circumstances where it may reasonably be inferred that the accused acted for the purpose of obtaining sexual gratification, or for the purpose of humiliating, distressing or alarming the child. As such, a teacher giving sex education classes would not be committing the offence because any communication, even if it could be considered to be sexual, would not have been made for the purpose of causing humiliation, alarm or distress, or for the purpose of obtaining sexual gratification but for educational purposes. On the other hand, a person sending sexually explicit text messages or s to a child for the purpose of obtaining sexual gratification, or in order to cause distress to the child, would commit the offence The offence is triable summarily or on indictment. Where tried on indictment, the maximum penalty is 5 years imprisonment. Section 35: Sexual exposure to an older child 119. Section 35 provides that it is an offence for a person who has attained the age of 16 years to expose their genitals in a sexual manner to a child aged years with the intention that the child will see them, and for the purpose of obtaining sexual gratification or of humiliating, alarming or distressing the child The offence is triable summarily or on indictment. Where tried on indictment, the maximum penalty is 5 years imprisonment. Section 36: Voyeurism towards an older child 121. Section 36, as amended by section 43 of the Criminal Justice and Licensing (Scotland) Act 2010, provides for an offence of voyeurism towards 20

21 an older child. The offence is modelled on that at section 9 and provides that a person (A), who has attained the age of 16 years commits an offence if he or she does any of the following towards a child (B) who is aged years: Observes another person (B) doing a private act (this would for example include a someone looking through a window or peephole at someone using a lavatory.) Operates equipment with the intention of enabling A or another person to observe B doing a private act. Records B doing a private act with the intention that A or another person will look at an image of B doing the act. Operates equipment beneath B s clothing with the intention of enabling A or another person to observe B s genitals or buttocks (whether exposed or covered by underwear). Records an image beneath B s clothing of B s genitals or buttocks (whether exposed or covered by underwear). Installs equipment or constructs or adapts a structure or part of a structure (e.g. by drilling a peep hole ) with the intent of enabling A or another person to do any of the acts listed above The offence is committed where it may reasonably be inferred that A acted for the purpose of obtaining sexual gratification, or for the purpose of humiliating, distressing or alarming the child. As such, these provisions would not apply where, for example, a shop fitted CCTV in changing rooms for security purposes (though an offence under this section may be committed by a person who subsequently misused such equipment for voyeuristic purposes) The offence is triable summarily or on indictment. Where tried on indictment, the maximum penalty is 5 years imprisonment. Section 37: Older children engaging in sexual conduct with each other 124. The offences concerning sexual activity with children aged at sections can only be committed by a person who has attained the age of 16 years. Where it is alleged that a child under the age of 16, or anyone else, has committed a non-consensual sexual offence against a year old child, this may be prosecuted using the offences at Part 1 of the Act. The offences at section 37 provide that certain sexual activity between year olds is unlawful, even if it is apparently consensual Section 37(1) provides that it is an offence for a child (A) who is aged to penetrate with his penis the vagina, anus or mouth of another year old child (B), or to intentionally or recklessly touch the vagina, anus or penis of B with A s mouth. Section 37(4) provides that, in the circumstances specified in subsection (1), if B engages by consent in the conduct in question, B commits an offence. The effect of this is to provide that sexual intercourse and oral sex between year old children is unlawful. It is expected that, as with the great majority of other offences committed by children, such offences would normally be dealt with by the Children s Reporter, rather than through prosecution in the criminal courts, in line with 21

22 the Lord Advocate s Guidelines on the reporting of offences committed by children The Scottish Government intends to publish Guidance on under-age sexual activity for practitioners working with children and young people to consider what local policy and procedures are required to effectively support those engaged in under-age sexual activity, in particular where there might be a child protection concern. The Scottish Government undertook a public consultation on a draft version of this Guidance between April and July The offence is triable summarily or on indictment. Where tried on indictment, the maximum penalty is 10 years imprisonment. Section 38: Penetration and consent for the purposes of section This section defines penetration and consent for the purpose of the offence at section 37. Section 38(2) provides that, for the purpose of the offence at section 37, penetration is a continuing act from entry under withdrawal of whatever is intruded. Section 38(3) provides that consent means free agreement, and further provision on consent which is based on the provisions at Part 2 of the Act, is contained at subsections (4)-(8). Section 39: Defences in relation to offences against older children 129. Section 39 as amended by section 71 of and schedule 4 to the Criminal Justice and Licensing (Scotland) Act 2010 provides for defences to the offences concerning sexual activity with older children at sections Reasonable mistaken belief as to age of child 130. Section 39(1) provides that it is a defence to the offences at sections that the accused reasonably believed that the child had attained the age of 16 years. It would be for the court to determine whether, in all the circumstances of the case, it is satisfied that the accused s belief that the child had attained the age of 16 years was reasonable Section 39(2) provides that this defence is not available if the accused has previously been charged by the police with a relevant sexual offence or if there is in force with respect to the accused a risk of sexual harm order. Relevant sexual offences under Scots, English & Welsh or Northern Irish law are listed at schedule 1 to the Act and consist of sexual offences against children under the age of consent. The amendments introduced by the Criminal Justice and Licensing (Scotland) Act 2010 extend this so as to provide that the defence is not available to anybody convicted of a relevant foreign offence, which is defined as a conviction by a Court of a Member State of the European Union (other than the UK) for an offence equivalent to one listed in Paragraphs 1, 4, 7, 10, 13 or 14 of Schedule 1. Proximity of age 22