Review of sexual offences

[Project now completed]

Patrick Layden QC

Team member
Charles Garland, Project Manager
Susan Robb, Solicitor

In June 2004 the Scottish Ministers asked the Scottish Law Commission to "examine the law relating to rape and other sexual offences, and the evidential requirements for proving such offences, and to make recommendations for reform." This reference followed two widely-reported High Court cases which sparked public, academic and professional concern that the law on sexual offences, particularly rape, was in confusion.

The Commission's Discussion Paper on Rape and Other Sexual Offences (DP 131) was published in January 2006, inviting responses by May. More than 80 responses were received, from a variety of organisations as well as from many members of the public.

The main issues covered in the Discussion Paper were the need to define consent; the redefinition of rape to cover a wider range of sexual acts; and the enhancement of the protection of persons vulnerable to sexual exploitation.

Defining consent: Since the decision of the High Court in Lord Advocate's Reference (No 1 of 2001) rape has been defined as a man having sexual intercourse with a woman without her consent. However, 'consent' is not defined and juries are expected to apply what they consider to be the ordinary meaning of that word. The Discussion Paper proposed that the meaning of consent should be defined in statute and that a list of factual situations should be provided to indicate where consent is not present. The list, which would not be exhaustive, would include situations where the victim was subject to violence, including violence against a third party; and where the victim was unconscious or asleep, or lacked capacity to consent as a result of drink or drugs.

Redefining rape: The Discussion Paper proposed a redefinition of the physical act constituting the crime of rape to include non-consensual penetration with a penis of the vagina, anus or mouth of the victim. Other consent-based offences would include sexual assault by penetration, sexual assault by touching and a new offence of compelling another person to engage in sexual activity. This last offence would cover a wide range of sexual conduct such as where the victim is compelled to have sex with a third party or where a woman compels a man to have sex with her.

Protection of vulnerable people: The Commission recognises that protection should be given not only to people who cannot consent to sexual activity (such as young children) but also people who have a limited capacity to consent and who may still be vulnerable to sexual exploitation. Such persons include children, people with a mental disorder and people over whom others hold a position of trust or authority. In relation to children the Discussion Paper proposed that sexual conduct with young children should be a strict liability offence, for which no defences of mistake as to age or consent would be available. It also proposed the abolition of the offence of lewd, indecent and libidinous practices, which would be replaced by specific statutory offences such as touching a child in a sexual manner; engaging in sexual activity in the presence of a child; and causing a child to watch a sexual act.

The Paper emphasised the need for gender equality, proposing that common law and statutory homosexual offences should be replaced by offences which were neutral as to gender and sexual orientation. It also considered arguments for and against the requirement of corroboration and sought public views as to whether this requirement should be modified or abolished for sexual offences.

The Commission published its final Report (Scot Law Com No 209) on 19 December 2007. It contains 62 recommendations and a draft Bill. There is also a news release containing a summary of the main recommendations.

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Page archive date: 1 September 2008