Sexual Offences

Question 1

What piece of legislation regulates the offence of rape?

Answer 1

Sexual Offences (Scotland) Act 2009, Section 1.

Question 2

What is stated in s1(1) of the SOSA 2009?

Answer 2

That if a person (A) with A’s penis (a) without another person (B) consenting and (b) without any reasonable belief B consents, penetrates to any extent, with intention or recklessly as to whether there is penetration, the vagina, anus or mouth of B then A has committed the offence of rape.

Question 3

If a person originally consents to sexual intercourse but at some point withdraws consent when would rape occur?

Answer 3

s1(3) of SOSA 2009 states that where penetration is originally consented to but at some point of the time the consent is withdrawn, subsection (2) is to be construed as if the reference in it to a continuing act from entry were a reference to a continuing act from that point of time.

Question 4

What does s1(4) of SOSA 2009 deal with?

Answer 4

Surgically constructed penis’, surgically constructed vaginas and the vulva are all deemed part of A and B’s body.

Question 5

Sexual assault by penetration is an offence in Scotland, what regulates this offence?

Answer 5

The Sexual Offences (Scotland) Act 2009, section 2 regulates sexual assault by penetration.

Question 6

How is ‘sexual assault by penetration’ defined?

Answer 6

s2(1) of SOSA 2009 defines this as penetration, without consent, using any part of A’s body or anything else.

Question 7

If a person initially consents to ‘penetration’ but then withdraws it at what point is an offence committed?

Answer 7

With reference to s2(3) of SOSA 2009 as the point consent is withdrawn and A does not stop, subsection (2) applies where penetration is a continuing act from entry (point of withdrawl) to withdrawl.

Question 8

Given that rape covers penetration of the penis without consent, can any other offence also be charged?

Answer 8

Yes, s2(4) states that the penis is included as ‘any part of A’s body’ per s2(1) and s3(5) states ‘penetration by any means’ also includes the penis.

Question 9

s3(1) of the Sexual Offences (Scotland) Act 2009 states “anything mentioned in subsection (2) without consent is sexual assault”. What are these things?

Answer 9

s3(2)

(a) penetrates by any means the vagina, mouth or anus of b.
(b) intentionally or recklessly touches B
(c) engages in ANY other sexual activity where A has physical contact with B’s body or by using an implement, through clothing or not
(d) ejaculates semen on to B
(e) emits urine or saliva on to B sexually.

Question 10

How is “consent” described in the Sexaual Offences (Scotland) Act 2009?

Answer 10

s12 states that: “consent” is described as free agreement in Parts 1 and 3 of the act.

Question 11

the Sexual Offences (Scotland) Act 2009 states “free agreement is absent in certain circumstances, what are they?

Answer 11

s13(2)

(a) B is under the effects of alcohol or any other substance
(b) B, or any other person has violence used against them to submit to the conduct, or violence is threatened against them
(c) B submits due to being unlawfully detained.
(d) B is mistaken due to deception by A as to the nature of the conduct?
(e) where B accepts because A is impersonating someone B knows personally
(f) where expression or agreement comes from someone other than B

Question 12

A person cannot consent to any conduct whilst asleep or unconscious, which piece of legislation regulates this.

Answer 12

Sexual Offences (Scotland) Act 2009 s14.
s14(1) applies to sections 1 to 9 of the act
s14(2) states a person who is asleep or unconscious cannot consent to anty conduct

Question 13

In relation to sexual activities when can consent (already given) be withdrawn?

Answer 13

s15(3) of Sexual Offences (Scotland) Act 2009 states that consent can be withdrawn at any time before conduct, or any time during conduct.

Question 14

When does conduct take place without consent?

Answer 14

s15(5) of Sexual Offences (Scotland) Act 2009 states that conduct takes place without consent as soon as the conduct takes place, or continues after consent has been withdrawn.

Question 15

What does s16 of the Sexual Offences (Scotland) Act 2009 deal with?

Answer 15

This section deals with ‘Reasonable Belief’. It determines, for the purposes of part 1, whether a person’s belief as to consent or knowledge was reasonable.
The section also states a person must have taken steps to find out whether there was consent or, knowledge there was consent.

Question 16

How is the offence of incest described?

Answer 16

The Criminal Law (Consolidation) Act 1995 section 1 definies incest as any male person who has sexual intercourse with persons set out in column 1 (include, mother, daughter, niece, aunt), and female persons who have sexual intercourse with persons set out in column 2 (son, father, uncle, nephew)

Question 17

When would a person not be guilty of incest despite satisfying s1(1) of the Criminal Law (Consolidation) Act 1995?

Answer 17

Where that person could show that s1(1)(a) they did not know they were related to that person and had no reason to suspect they were related

(b) they did not consent to sexual intercourse, or to have sexual intercourse with that person
(c) they were married at the time, marriage took place outside Scotland but was recognised as valid by Scots Law.