Domestic Abuse and Coercive Control, Sexual Offence and Public Indecency

Abusive Behaviour and Sexual Harm (Scotland) Act 2016 

Section 1- An aggravation to an offence libelled by involving abusive behaviour which caused or intended to cause either physical or psychological harm to a partner or ex partner 

Note- The Act fails to acknowledge domestic abuse as a course of conduct and does not include any provision for dealing with psychological abuse or coercive and controlling behaviour as a stand-alone offence

Course of Conduct : a Single Charge or an ‘Omnibus Charge’?

Case Examples

Single Charge

HMA v Taylor 2019 HCJAC 2

4 separate incidents of assault were accepted as a ‘course of conduct. Each similar in time, place and character

Omnibus Charge 

Wilson v HMA 2019 HCJAC 36

One ‘omnibus charge’  of a series of assaults 

Conviction was overturned on appeal – there was not sufficient evidence to prove the ‘course of conduct ’ 

Series of Assaults

Case example

Spinks v PF 2018 HCJAC 37

A number of assaults committed against the same person over a period of four years – the accused was charged on a single ‘omnibus’ charge 

But did the evidence represent a course of conduct that was a series of assaults? Conviction overturned on appeal – this was a number of separate assaults – not a single offence of a ‘series of assaults’ 

Disclosure or threat of disclosure of photograph or film 

section 2 Abusive Behaviour and Sexual Harm (Scotland) Act 2016 

It is an offence to disclose or threaten to disclose a photograph or film which shows another person in an intimate situation 

Ref: Shanks v PF 2018 SAC 18

Serious Crime Act 2015 

• English statute 

• section 76:  Controlling or coercive behaviour in an intimate or family relationship

• Created an offence for a person to ‘repeatedly or continuously engage in behaviour towards another person that is controlling or coercive’ and criminalises ‘coercive and controlling behaviour’ 

• Ref: R v Challen 2019 EXCA 916

Domestic Abuse (S) Act 2018

Section 1 introduces a new offence of abusive behaviour towards partner or ex-partner

Section 10 (4) the offence involves a course of behaviour and not a one-off incident i.e behaviour on at least two occasions 

Section 1(2)(a) the test of whether the course of behaviour is abusive or not is an objective one i.e. whether a reasonable person would consider the behaviour likely to cause physical or psychological harm

Section 1(2)(b) the mens rea is intention or recklessness

Engaging in course of abusive behaviour 

Condition one  

A engages in a course of behaviour which is abusive of A’s partner or ex-partner (“B”)

Condition two

A reasonable person would consider that the course of behaviour would be likely to cause B to suffer physical or psychological harm

Condition three

A either intends by the course of behaviour to cause B to suffer physical or psychological harm, or else is reckless as to whether the course of behaviour causes B to suffer physical or psychological harm

Defining abusive behaviour

Section 2(2) behaviour which is abusive of B includes:

1. behaviour directed at B that is violent threatening 

or 

2. intimidating behaviour directed at B, at a child of B or at another person that either has as its purpose one or more of the “relevant effects” set out in the Act or would be considered by a reasonable person to be likely to have one or more of the relevant effects

Section 10 defines references to behaviour to include saying or otherwise communicating something as well as doing something or intentionally failing to do something or say something

Examples of coercive and controlling behaviour

• Exhaustion

• Enforcing trivial demands

• Isolation

• Breach of trust 

• Threats

• Sexual abuse

• Economic abuse

• Humiliation/degradation

• Using children 

• Gaslighting

‘Coercive effect’ of the behaviour

Five categories 

• making B dependent on or subordinate to A

• isolating B from friends and relatives or other sources of support

• controlling regulating or monitoring day-to-day activities

• depriving B of or restricting B’s freedom of action

• frightening, humiliating, degrading or punishing B

Proving a course of conduct 

 Case Example CA v HMA [2022] HCJAC 33

•  The appellant unsuccessfully argued that each incident of allegedly abusive behaviour within the overall course of conduct needed to be proved by corroborative evidence. 

•  It is the course of behaviour which is the core of the offence … proof of behaviour ‘on at least’ two occasions

The section 6 defence

Defence on grounds of reasonableness in s 6

   ‘In proceedings for an offence under section 1(1), it is a defence for A to show that the course of behaviour was reasonable in the particular circumstances’

Domestic Abuse Act 2021 

New statutory provisions introduced in England & Wales

• creates a statutory definition of domestic abuse,  emphasising that domestic abuse is physical violence, and emotional, coercive or controlling, and economic abuse. 

• children are explicitly recognised as victims if they witness abuse

• establishes a Domestic Abuse Commissioner

Common Law Background for Sexual Offences and Public Indecency Offences

In Lord Advocate's Reference (No 1 of 2001) rape was defined as a man having sexual intercourse with a woman without her consent. 

Para 44: 

1. the general rule is that the actus reus of rape is constituted by the man having sexual intercourse with the woman without her consent 

2. In the case of females under the age of 12 or who for any other reason are incapable of giving such consent, the absence of consent should be presumed  and 

3. The mens rea on the part of the man present where he knows that the women is not consenting, or at any rate is reckless as to whether she is consenting 

Rape pre Sexual Offences (Scotland) Act 2009

At common law absence of evidence of consent was critical 

Jamieson v HM Advocate (No 1) 1994 SCCR 181

The mens rea of this crime includes the intention to haveintercourse with the woman without her consent. The Absence of a belief that she was consenting is an essential element in it. If a man has intercourse with a woman in the belief that she is consenting to this he cannot be guilty of rape.

(Lord Hope)

Sexual Offences (Scotland) Act 2009 

Modernised the Scots law of sexual offences replacing the common law offences with statutory provisions 

Created a broader, statutory definition of rape

Sets out an offence of sexual assault by penetration, which covers, for example, penetration by objects, and which is equivalent in seriousness to rape

Creates specific offences in relation to the rape and sexual assault of children and makes it clear that anyone under the age of 13 is considered unable to consent to sexual activity.

Only applies to crimes committed after it came into force (December 2010) – i.e. it has no retrospective application

Sexual Offences (Scotland) Act 2009 Part 1-5

Part 1: sections 1 – 11 statutory offences 

Part 2: sections 12 – 16 consent and reasonable belief 

Part 3: sections 17 – 27 offences against ‘young children’ (under)13 

Part 4: sections 28 – 41 offences against ‘young children’ (between 13 -16) 

Part 5: sections 42 – 47 abuse of positions of trust

Sexual Offences (Scotland) Act 2009 Rape

Section 1(1) 

If a person (“A”), with A's penis

(a) without another person (“B”) consenting, and

(b) without any reasonable belief that B consents,

penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B then A commits an offence, to be known as the offence of rape.

Sexual Offences (Scotland) Act 2009 Sexual Offences that are not rape

Section 2: Sexual Assault by penetration 

Section 3: Sexual Assault

Section 4: Sexual Coercion

Section 5: Coercing a person into being present during sexual activity

 Section 6: Coercing a person into looking at a sexual image

 Section 8: Sexual Exposure

 Section 11: Administering a substance for sexual purposes

Actus reus and mens rea for sections 1, 2 and 3 offences 

Actus reus- Actions carried out with either a lack of consent by the victim or a lack of reasonable belief that the victim was consenting

Mens rea- Intention to carry out the act or recklessness to the consequences

Consent

Section 12: Consent means ‘free agreement’

Section 13: Outlines circumstances when ‘free agreement’ will be absent  (i.e. when there will be no consent) 

Section 14: Explicitly provides that someone cannot consent when asleep or unconscious 

Section 15: Provides that consent can be withdrawn at any time and that consent to one type of conduct does not imply consent to other conduct 

Section 17: Mental disorder and consent

Sexual Offences (S) Act 2009 Influence on the law

Changed the requirement from the common law offences re the mens rea from the absence of an honest belief to the absence of a reasonable one 

Graham v HMA 2017 SCCR 497

Maqsood v HMA [2018] HCJAC 74

Whether an accused had a reasonable belief that the victim was consenting was an inference to be drawn from the proven facts

Mutebi v HMA 2014 SCCR 52 

This was the first reported rape case under the Sexual Offences (Scotland) Act 2009.

At trial, the complainer testified that she remembered being in her bathroom, and being in bed, and then ‘coming to’ from unconsciousness to find the accused on top of her, sexually penetrating her. She could not remember whether she had agreed to have sex with him, but stated that when she realised what was happening, she said no, and tried to push him off. 

Accused was found guilty of rape and appealed 

Appeal Decision

• Mutebi appealed against a conviction for rape.

• The conviction was overturned on appeal because there was insufficient corroboration of lack of consent, or of the appellant’s lack of reasonable belief in consent.  

• Concern expressed that the case undermines the purpose of section 15 of the Act i.e withdrawing consent should be recognised  

Gow v HM Advocate 2019 JC 109

Appeal against a conviction for rape raised the issue of whether, in terms of the 2009 Act, a person can consent in advance to having sexual intercourse whilst asleep. 

Accused had lodged defence of consent

Appeal refused, conviction upheld:

• Consent which is expressed at a point materially remote from the conduct said to constitute the crime cannot provide a defence in terms of the statutory provisions. 

• Section14 is clear in its statement that a person cannot consent to conduct whilst she is asleep or unconscious. There can never be a reasonable belief of consent in such circumstances

Offences against Young Children (aged under 13) 

Sections 18-26

• s18. Rape of a young child

• s19. Sexual assault on a young child by penetration

• s20. Sexual assault on a young child

• s21. Causing a young child to participate in a sexual activity

• s22. Causing a young child to be present during a sexual activity

• s23. Causing a young child to look at a sexual image

• s24. Communicating indecently with a young child etc.

• s25. Sexual exposure to a young child

• s26. Voyeurism towards a young child

Note S27 Belief a child was 13. 

It is not a defence to a charge in proceedings under any of sections 18 to 26 that A believed that B had attained the age of 13 years.

Offences against Older Children (aged 13 -16) 

Sections 28-36

• s28. Having intercourse with an older child

• s29. Engaging in penetrative sexual activity with or t owards an older child

• s30. Engaging in sexual activity with or towards an older child

• s31. Causing an older child to participate in a sexual activity

• s32. Causing an older child to be present during a sexual activity

• s33. Causing an older child to look at a sexual image

• s34. Communicating indecently with an older child etc.

• s35. Sexual exposure to an older child

• s36. Voyeurism towards an older child

Dorrian Review 2021

Conviction rates for sexual offences are low and for rape/attempted rape cases between 6% - 10%

Improving the Management of sexual offence cases report 2021

Recommendations
A national (Scottish) specialist sexual offences court

• Pre-recorded evidence

• A legal right to anonymity for complainers

• A pilot of judge only trials

Public Indecency 

Webster v Dominick 2005 1 JC 65 

Lord Gill at para [52]

In my view, if such conduct [public indecency] is seen as a public order offence, questions about the depraving and corrupting effects of the conduct complained of are at most of indirect relevance…

The effect of the conduct on the minds of the public

•  Element is satisfied if the indecent conduct occurs in public or members of the public can see it.

•  The conduct needs to affront public sensibility – but this is to be decided by reference to the circumstances of the case and changing social standards. To be judged objectively.

 Webster v Dominick 2005 1 JC 65

Actus Reus Public indecency

Indecent conduct

Classic examples include indecent exposure; or engaging in  sexual intercourse or sexual acts in public view 

 McNair v Murphy 2015 SLT 673 

• The act of having oral sex on a bus amounted to public indecency

• Public indecency can be committed on private property, but with the opportunity for ‘public offence’

• Usai v Russell 2000 JC 144

Mens rea Indecent Conduct

 Intention to engage in indecent conduct that will affect the minds of the public  or 

 Recklessness as to whether one is engaging in indecent conduct that will affect the minds of the public

 F v Griffiths [2010] HCJAC 108