Sexual Offences (Scotland) Act 2009 Patrick Down Criminal Law & Licensing Division

Overview Replaces patchwork of common law and statutory provision – putting Scots law on sexual offences into a single Act. Provides for the first time a statutory definition of consent Ensures law reflects values of contemporary society – e.g. wider definition of rape

Provisions Part One – Sexual offences involving absence of consent Part Two – Definition of consent Part Four – Sexual offences against children Part Five - Abuse of trust offences.

Sexual Offences – Part One Rape Sexual Assault by penetration Sexual Assault Sexual Coercion Coercing - being present Coercing – image of sexual activity Communicating indecently Exposure, Voyeurism & Administering of Substances for a sexual purpose

Consent and Reasonable Belief Consent means “free agreement” Circumstances in which conduct takes place without free agreement Scope & Withdrawal of Consent Determining Reasonable Belief

Sexual Offences against children Young Children – under 13 – no capacity to consent Older Children – 13, 14 and 15 – limited capacity to consent. Consensual sexual activity between older children

Abuse of Trust Offences Sexual activity an offence where the perpetrator is in a position of trust. Applies to children and persons with a mental disorder. Protects those under 18 from those over 18 Positions of trust include where the perpetrator fills a parental role or looks after the victim in e.g. –A hospital or care home –An educational establishment ‘Looks after’ = trains, supervises, teaches or in charge of

Extra-territorial offences Act amends law relating to sexual offences against children committed by UK nationals outside of Scotland. Removes requirement for ‘dual criminality’ so no longer need be an offence in the country in which conduct takes place. Meets obligations under the Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Abuse.

The bigger picture Reform of substantive legislation only one part of the wider picture COPFS Review of Investigation and Prosecution of serious sexual offences Work to address public attitudes Wider criminal law – e.g. evidence of bad character.