Criminal Law Y2S1 Week 6: L11 Sexual Offences & L12 Consent

Key terms and cases (Issue / Facts / Held) from my OneNote notes. 'Added' notes are from outside the notes.

Common law rape: what was the definition, and what were its three problems?

The actus reus was a man having sexual intercourse with a woman 'by FORCE and AGAINST HER WILL' (Charles Sweenie (1858) 3 Irv 109; your notes say 1853). Problems: (a) cases with no evidence of force, or no force used, despite absence of consent; (b) complainers who were UNCONSCIOUS or insensible; (c) MALE complainers (rape was limited to penile-vaginal penetration). Reforms before the 2009 Act: • S v HMA 1989: the MARITAL RAPE immunity was removed. • Lord Advocate's Reference (No 1 of 2001): the FORCE requirement was removed, so rape became intercourse without consent.

Sexual Offences (Scotland) Act 2009: what did it do, and what is its organising principle?

• It ABOLISHED the common law sexual offences (s.52) and replaced them with statutory offences. • Its organising principle is CONSENT, grounded in SEXUAL AUTONOMY, alongside a PROTECTIVE principle (e.g. for children). • It implemented most of the Scottish Law Commission's Report on Rape and Other Sexual Offences (Scot Law Com No 209, 2007), with some departures. The common law STILL applies to HISTORIC offending committed before the Act came into force (HMA v L 2009), because legislation is not retrospective.

The four categories of offence in the 2009 Act

1. CONSENT-BASED offences (rape, sexual assault, coercion, voyeurism…) The rest are criminal REGARDLESS OF CONSENT (the protective principle):
2. offences against YOUNG children (under 13)
3. offences against OLDER children (13 and over but under 16)
4. ABUSE OF TRUST offences Added: check the exact section ranges in your statute book (roughly ss.18–26 for young children, ss.28–37 for older children and ss.42–45 for abuse of trust).

Rape under s.1 of the 2009 Act: definition, actus reus and mens rea

s.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, A commits rape. • ACTUS REUS: penile penetration of the vagina, anus or mouth, WITHOUT B's CONSENT (lack of consent is part of the actus reus). • MENS REA (two parts): (1) intention or recklessness as to PENETRATION; and (2) NO REASONABLE BELIEF in consent. This widens the old law (which covered only penile-vaginal penetration) and changes the mens rea.

Why is s.1 rape NOT gender-neutral, unlike the rest of the 2009 Act?

Rape requires penetration with a PENIS, so only a person with a penis can commit it. The Act defines 'penis' to include a surgically constructed one (s.1), so the accused's gender identity is irrelevant. Justification: during reform there was a strong view (supported by the SLC and Rape Crisis Scotland) that rape is uniquely traumatic and inherently GENDERED, and should be marked out as a SEPARATE offence. It is the one major exception to the gender-neutrality of the Act. Note: if the person who PENETRATES does not consent, that is not rape (it may be sexual coercion under s.4).

Why does the 2009 Act use a 'negative' mens rea (an absence of reasonable belief in consent)?

Usually the prosecution proves a POSITIVE mental state. Here the Crown proves the ABSENCE of a reasonable belief in consent. Effect: it places an OBLIGATION on A to ensure there is consent. Sexual activity is not itself criminal; it becomes criminal through the LACK of consent. Added: s.16 provides that, in deciding whether a belief was reasonable, regard is to be had to whether A took any STEPS to ascertain whether B consented. This rejects DPP v Morgan's 'honest but unreasonable belief'.

s.2 sexual assault by penetration vs s.3 sexual assault: what is the difference, and why do they overlap?

• s.2: A penetrates B's VAGINA or ANUS to any extent with ANY PART OF A's BODY or ANYTHING ELSE, without B's consent. • s.3 covers, without consent, A: (a) penetrating sexually, by any means, the vagina, anus or mouth; (b) intentionally or recklessly TOUCHING B sexually; (c) any other sexual activity involving physical contact (bodily or by implement, through clothing or not); (d) ejaculating semen onto B; (e) emitting urine or saliva onto B sexually. Mens rea for both: intention or recklessness, plus no reasonable belief in consent. Why they overlap: PRAGMATISM. If penile penetration (s.1), or penetration at all (s.2), cannot be proved beyond reasonable doubt, a lesser offence still catches the conduct, so 'no one falls through the cracks'.

Coercing or compelling sexual activity (ss.4–7): what elements do they share?

Actus reus: the complainer does NOT CONSENT to the activity. Mens rea: • all are crimes of INTENTION; • all require NO REASONABLE BELIEF in consent; • all except s.4 require a PURPOSE of (i) obtaining SEXUAL GRATIFICATION or (ii) HUMILIATING, DISTRESSING or ALARMING the complainer. • s.49: A has the purpose if, in all the circumstances, it may REASONABLY BE INFERRED (an OBJECTIVE test). Whether the complainer was actually humiliated is irrelevant (PF Edinburgh v Aziz 2023). NB: 'coercion' is misleading. Nothing beyond the ABSENCE of consent is needed (e.g. sending unsolicited nude images).

ss.4–7 of the 2009 Act: what is each offence?

• s.4 SEXUAL COERCION: causing B to PARTICIPATE in sexual activity. A need not take a physical part. 'Causing' is undefined (probably proximate cause). • s.5 coercing B to BE PRESENT during sexual activity: A engaging in sexual activity in B's presence, or causing B to be present while others do. (Presence does not necessarily mean viewing.) • s.6 coercing B to LOOK AT A SEXUAL IMAGE: a still or moving image of a person engaging in sexual activity, or of a person's genitals. Distinguish disclosing or threatening to disclose an INTIMATE image of the complainer ('revenge porn': Abusive Behaviour and Sexual Harm (Scotland) Act 2016 s.2). • s.7 COMMUNICATING INDECENTLY: sending a sexual written or verbal communication to B, or causing B to see or hear one. It need not even be received (e.g. intercepted by police). In ss.5–7 the complainer is PASSIVE or inactive.

The s.4 coercion problem: a coerced person who penetrates a non-consenting third party

Scenario: B is coerced (s.4) into non-consensual sex with C. If B knows C is not consenting, B technically commits RAPE of C. • The defence of COERCION requires IMMEDIATE threats of DEATH or SERIOUS INJURY, which may not be present. • The Scottish Law Commission concluded that PROSECUTORIAL DISCRETION is a sufficient safeguard in such cases.

Sexual exposure (s.8): elements, and the meaning of 'in a sexual manner'

• ACTUS REUS: EXPOSING one's GENITALS to the complainer 'IN A SEXUAL MANNER', without consent. • MENS REA: intentional exposure, intending that the complainer SEE the genitals; no reasonable belief in consent; and a purpose of sexual gratification or of humiliating, distressing or alarming. 'In a sexual manner': the SLC wanted to EXCLUDE e.g. a man URINATING in public who is seen by a passer-by. That may be PUBLIC INDECENCY but not a sexual offence. The conduct must be DIRECTED at a specific person.

Voyeurism (ss.9–10): what does it cover?

Transplanted from English law. Without consent, A:

1. OBSERVES B doing a PRIVATE ACT;
2. OPERATES EQUIPMENT intending that A or C observe B doing a private act (e.g. a hidden camera in a changing room);
3. RECORDS B doing a private act, intending that A or C look at the image;
4. operates equipment UNDER B's CLOTHING to observe the genitals, buttocks or underwear ('UPSKIRTING'; it does not cover 'downblousing', criticised as rushed);
5. RECORDS an image under clothing for the same purpose;
6. INSTALLS equipment or adapts a structure to enable any of the above (s.9(5)). Mens rea: no reasonable belief in consent, plus a purpose of sexual gratification (for A or C) or humiliating, distressing or alarming B.

What is a 'private act' for voyeurism (s.10)?

B is in a place that, in the circumstances, would REASONABLY BE EXPECTED TO PROVIDE PRIVACY, and: • B's genitals, buttocks or breasts are EXPOSED or covered only with UNDERWEAR; or • B is using a LAVATORY; or • B is doing a SEXUAL ACT of a kind not ordinarily done in public (anything beyond, e.g., hugging or kissing). English case law: complete enclosure is not required (e.g. communal changing rooms can qualify). It depends on context.

The 2009 Act's model of consent, and the key sections

A 'POSITIVE' or 'CO-OPERATIVE' model centred on SEXUAL AUTONOMY. It moves away from force-based approaches that focus the trial (traumatically) on the complainer's resistance. • s.12: consent means FREE AGREEMENT. • s.13: a NON-EXHAUSTIVE list of circumstances in which there is NO free agreement. • s.14: a person who is ASLEEP or UNCONSCIOUS cannot consent. • s.15: consent can be WITHDRAWN at any time, and consent to one act is not consent to another. • Added: s.16 covers reasonable belief (regard is had to the steps A took to ascertain consent). The Jury Manual guides judges on how to direct juries on 'free agreement'.

s.12 'free agreement': is acquiescence enough?

No. FREE AGREEMENT is more than ACQUIESCENCE or submission. Agreement given only because of very pressing circumstances is not free (HMA v SM 2019). Contrast the old law's 'consent is consent' (Marr v HMA 1996). If a case does not fit a s.13 category (e.g. non-violent threats, economic pressure, or lawful detention), it can still be argued under the GENERAL s.12 test.

s.13(2): the six situations in which there is NO free agreement

(a) B is INCAPABLE of consenting because of the effect of ALCOHOL or another substance; (b) B agrees or submits because of VIOLENCE or the THREAT of violence against B or ANY OTHER PERSON; (c) B agrees or submits because B is UNLAWFULLY DETAINED by A; (d) B agrees or submits because B is MISTAKEN, as a result of DECEPTION by A, as to the NATURE or PURPOSE of the conduct; (e) B agrees or submits because A induces B by IMPERSONATING someone KNOWN PERSONALLY to B; (f) the only expression or indication of agreement comes from SOMEONE OTHER THAN B. If any of these applies there is simply NO consent (it is predetermined). The list is NON-EXHAUSTIVE, so s.12 is still available.

s.13(2)(a) intoxication: what is the threshold, and what principles apply?

The threshold is LACK OF CAPACITY. The SLC said a fixed level of intoxication was impossible to set. • CONSCIOUSNESS is not the same as CAPACITY. Being drunk, being sick, or memory loss does not in itself prove incapacity (R v Bree [2008]). • Physical ENGAGEMENT in sex is not the same as consent. A person can be active and still lack capacity (DC v DG and DR 2018). • Capacity is HIGHLY CONTEXTUAL and can be inferred from witnesses' evidence (HMA v MMI 2022). • PRIOR consent is IRRELEVANT once capacity is lost. • The CAUSE of incapacity is irrelevant: voluntary intoxication by the complainer does not matter (important because juries tend to blame complainers who drank voluntarily). • The accused's own voluntary intoxication is NO DEFENCE.

s.13(2)(b) and (c): violence and unlawful detention

(b) VIOLENCE or THREATS of violence: • the violence need NOT immediately precede the sexual act; • only threats of VIOLENCE count, not economic, social or other threats (those fall to s.12); • there must be a CAUSAL connection (B agreed BECAUSE of the violence or threat); • the threat can be directed at SOMEONE OTHER THAN B. (c) UNLAWFUL DETENTION by A: • the detention must be UNLAWFUL. Lawful detention (e.g. by police) falls to s.12 instead. • Example: HMA v SM 2019 (abduction in a car).

s.13(2)(d): deception as to NATURE or PURPOSE. What is covered and what is not?

COVERED: • NATURE: B does not understand the act as SEXUAL, e.g. a 'medical procedure' or 'breathing exercise' (R v Williams [1923]; Baillie v HMA 2007). • PURPOSE: B is deceived as to WHY the act is done (R v Devonald [2008]: a father posed as a young woman online to humiliate his daughter's ex-boyfriend). • Active deception about CONDOM use or stealthing (Assange; R(F) v DPP 2013: deception about withdrawal before ejaculation). NOT COVERED (or argued only under s.12): • UNINDUCED mistakes. • Non-disclosure of HIV status, which does not vitiate consent (R v B [2006]). • Lying about a VASECTOMY, which did not vitiate consent (R v Lawrance [2020]). The 'active' vs 'passive' deception distinction is unsettled, and Scottish courts take a similar approach.

s.13(2)(e) and (f): impersonation and third-party 'agreement'

(e) A induces B by IMPERSONATING someone KNOWN PERSONALLY to B. • The provision is about the impersonation of PERSONS, not deception about ATTRIBUTES. Undercover police officers' relationships did not vitiate consent (R (Monica) v DPP [2018/2019]). • Deception about biological sex or gender: R v McNally [2013/2014] (vitiated consent); Wilson (2013, unreported, Scotland: 'obtaining sexual intimacy by fraud'); see the COPFS transgender accused policy, section 6. (f) the ONLY expression of agreement comes from a THIRD PARTY. • Factual example: DPP v Morgan [1976], where a husband told friends his wife would pretend to resist. Its reasoning is OUTDATED, because it accepted an honest but UNREASONABLE belief, which s.16 rejects.

CASE: Charles Sweenie (1858) 3 Irv 109

Issue: Was it rape to have intercourse with a woman who was ASLEEP, where no force was used? Facts: Added: the accused had intercourse with a sleeping woman, so no force was used to overcome her will. Held: Not rape at common law. Rape required intercourse 'by FORCE and AGAINST HER WILL'. (The conduct was punishable as a lesser crime, 'clandestine injury to women'.) This is the source of the common law definition and its 'unconscious complainer' problem, later resolved by the Lord Advocate's Reference (No 1 of 2001) and ss.13–14 of the 2009 Act. (Note: Sweenie was 1858. Your notes say 1853.)

CASE: Lord Advocate's Reference (No 1 of 2001) 2002 SLT 466 (seven judges)

Issue: Is FORCE a necessary element of rape at common law, or is absence of consent enough? Facts: Added: the accused had intercourse with a woman without her consent but without using force, and was acquitted after the judge directed that force was required. The Lord Advocate referred the point of law. Held: Force is NOT required. Rape is a man having sexual intercourse with a woman WITHOUT HER CONSENT. The court overruled the force-based definition from Sweenie and its successors (relevant to pre-2009 offending).

CASE: S v HM Advocate 1989 SLT 469

Issue: Can a husband be guilty of raping his wife? Facts: Added: a husband was charged with raping his wife while they were cohabiting, and pleaded the traditional marital immunity (Hume). Held: There is NO MARITAL IMMUNITY in modern Scots law. A husband can be convicted of raping his wife. (Your notes: until 1989 it was not legally possible to recognise rape within marriage.)

CASE: Procurator Fiscal, Edinburgh v Aziz 2023 JC 51

Issue: How is the 'PURPOSE' requirement (sexual gratification, or humiliating, distressing or alarming) proved under s.49 of the 2009 Act? Facts: A TAXI DRIVER spoke inappropriately to young women passengers, suggesting SEXUAL ACTS as 'payment' when they could not pay the fare. The question was whether this was only breach of the peace or a sexual offence (communicating indecently). Held: The SEXUAL purpose was made out. The purpose was sexual gratification, even if that would come later if his proposition succeeded. s.49 does NOT require proof of the accused's actual SUBJECTIVE purpose. It is enough that 'an inference of one of the stated purposes is capable of being drawn from the accused's actings' (an OBJECTIVE test).

CASE: KT v Procurator Fiscal, Falkirk 2019 SCCR 11

Issue: Can secretly observing or recording a sleeping PARTNER be voyeurism under s.9? Facts: The accused was charged with OBSERVING and RECORDING his partner while she was ASLEEP, in order to view it later for sexual gratification. Held (from your notes): The appeal court held that the observing element was problematic between two partners who lived together, and there was insufficient evidence on that aspect. It is particularly difficult given s.14 (a sleeping person cannot consent). (Check the exact outcome against the report; your notes are brief here.)

CASE: HM Advocate v SM 2019 JC 176

Issue: Is submission to sex in order to defuse a dangerous situation 'free agreement' under s.12? Facts: The accused KIDNAPPED the complainer (his ex-partner) and tried to take her away in his car. To calm his RAGE and defuse the situation, she 'agreed' to sex. The trial judge treated this as consent. Held: The appeal court DISAGREED. There was no FREE AGREEMENT. Agreement arising only from very pressing circumstances is not free, and free agreement is MORE THAN ACQUIESCENCE. Contrast the old law: 'consent is consent' (Marr v HMA 1996).

CASE: R v Bree [2007] EWCA Crim 804, [2008] QB 131 (English)

Issue: When does an intoxicated complainer lack the CAPACITY to consent? Facts: Added: the complainer and the accused had both been drinking heavily. She was very drunk (being sick, with gaps in her memory) when intercourse occurred. Held: (1) CONSCIOUSNESS and CAPACITY are different: a drunk person may still have capacity. (2) Being drunk is NOT in itself enough to prove lack of capacity. The conviction was quashed because of inadequate jury directions. Criticised: being sick or having memory loss was treated as not proving incapacity, so a good test was misapplied.

CASE: DC v DG and DR 2018 SC 47 (civil damages for rape)

Issue: Can a person who physically engages in sex still lack capacity to consent, so that it is rape? Facts: The pursuer alleged she was RAPED by two FOOTBALLERS while incapacitated through alcohol. The Crown did not prosecute, so she sued for DAMAGES in the Court of Session. The CIVIL standard is the BALANCE OF PROBABILITIES. Held: She WON. A person can actively ENGAGE in sexual activity while LACKING CAPACITY. Since she was incapacitated, nothing she said or did amounted to free agreement.

CASE: HM Advocate v MMI [2022] HCJAC 19

Issue: Can incapacity through intoxication be inferred from witness evidence, so that the case should go to the jury? Facts: The complainer became separated from a friend, met the accused at a bar, and woke up in a hotel. The barman testified the accused kept buying her drinks and that she could walk but had to be GUIDED. A TAXI DRIVER refused to take them to the hotel because she was so drunk and called the POLICE. The trial judge held there was insufficient evidence of incapacity. Held: The appeal court DISAGREED. The evidence (especially the taxi driver's concern) could support a finding of INCAPACITY, so it was for the jury. Capacity is HIGHLY CONTEXTUAL.

CASE: R v Williams [1923] 1 KB 340 (English) and Baillie v HM Advocate 2007 SCCR 26

Issue: Is consent vitiated where the complainer is deceived about the NATURE of the act (believing it is not sexual)? Facts: In Williams, a singing teacher had intercourse with a pupil, telling her it was a technique to improve her BREATHING or voice. Held: NO valid consent, so it was rape. She consented to a 'medical/vocal procedure', not a sexual act. This is now codified in s.13(2)(d) (deception as to NATURE). Baillie v HMA 2007 is the Scottish authority cited in your notes on the same principle (check its facts).

CASE: R v Devonald [2008] EWCA Crim 527 (English)

Issue: Is consent vitiated by deception about the PURPOSE of a sexual act? Facts: A father, angry that a 16-year-old boy had ended a relationship with his daughter, posed online as a young WOMAN and persuaded the boy to masturbate on webcam, intending to HUMILIATE him. Held: The boy was deceived about the PURPOSE of the act. He thought it was for the 'woman's' sexual gratification, but it was to humiliate him. So there was no consent. This is the model for s.13(2)(d) (deception as to PURPOSE).

CASE: R v B [2006] EWCA Crim 2945, [2007] 1 WLR 1567 (English)

Issue: Does NON-DISCLOSURE of HIV-positive status vitiate consent to sex? Facts: The accused had sex with the complainer without telling her he was HIV-positive. Held: NO. Non-disclosure of HIV status does NOT vitiate consent for the purposes of RAPE. (Liability may instead lie for reckless transmission, as in HMA v Kelly 2001 in Scotland, Week 5.)

CASE: Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) and R(F) v DPP [2013] EWHC 945 (Admin)

Issue: Is deception about CONDOM use, or about withdrawing before ejaculation, capable of vitiating consent? Facts: • Assange: the complainant consented only to sex WITH a condom, and the accused allegedly had sex without one or removed it ('stealthing'). • R(F): the complainant agreed to sex on the basis that the man would WITHDRAW before ejaculation, which he deliberately did not intend to do. Held: In both, the conduct was CAPABLE of being a sexual offence. Consent was conditional, and deliberately breaching the condition (with the risks of pregnancy or disease) negates consent. (Note: your notes cite Assange as [2012] 3 WLR 1. That is the Supreme Court extradition decision; the consent point was decided by the Divisional Court in 2011.) Scottish courts take the same approach.

CASE: R v Lawrance [2020] EWCA Crim 971, [2020] 1 WLR 5025 (English)

Issue: Does lying about having had a VASECTOMY vitiate consent? Facts: The accused falsely told the complainant he had had a vasectomy. She agreed to unprotected sex on that basis and became pregnant. Held: NO. The lie related to the RISKS or consequences of the act, not to the act itself or its nature or purpose, so consent was not vitiated. Contrast condom deception (Assange), where the physical act consented to was different. The distinction between ACTIVE and PASSIVE deception remains debated.

CASE: R (Monica) v DPP [2018] EWHC 3508 (Admin), [2019] QB 1019 (English)

Issue: Does deception about IDENTITY or ATTRIBUTES (an undercover police officer's real identity) vitiate consent? Facts: An undercover police officer formed a sexual relationship with an activist while using a false identity. Held: NO. Deception about ATTRIBUTES (occupation, true identity or background) does not vitiate consent. Only deception as to the NATURE of the act, or IMPERSONATION of a specific person, does. This is relevant to the 'known personally' limit in s.13(2)(e).

CASE: R v McNally [2013] EWCA Crim 1051, [2014] QB 593 (English)

Issue: Can deception about GENDER vitiate consent? Facts: The accused, who was female, presented online and in person as a boy and engaged in sexual activity with a teenage girl who believed she was with a boy. Held: Deception as to GENDER can vitiate consent. The complainant chose to have sexual encounters with a boy, so her 'preference' was deprived of free choice. See also Wilson (2013, unreported, Scotland) and the COPFS transgender accused policy, section 6.

CASE: DPP v Morgan [1976] AC 182 (HL)

Issue: Must the accused's belief in consent be REASONABLE, or only honest? Facts: A husband invited three men to have sex with his wife, telling them she would PRETEND to resist. She did resist, and they had sex with her. Held: An HONEST belief in consent, even if UNREASONABLE, would negate the mens rea of rape. (The men were still convicted because the jury rejected their claimed belief.) Now OUTDATED: the 2009 Act requires a REASONABLE belief (s.1(1)(b), s.16). It remains a factual example for s.13(2)(f) (agreement expressed only by a THIRD PART