Sexual offences in Scots law

There are a number of sexual offences under the law of Scotland.

Common features

General interpretation

Consent

As to consent, see sections 12 to 15 of the Sexual Offences (Scotland) Act 2009. As to whether a sleeping or unconscious person has capacity to consent, see section 14 of that Act. As to whether a mentally disordered person has capacity to consent, see section 17 of that Act.

Reasonable belief

As to reasonable belief, see section 16 of the Sexual Offences (Scotland) Act 2009.

Sexual

As to the meaning of "sexual", see section 60(2) of the Sexual Offences (Scotland) Act 2009.

Notification requirements

As to notification requirements, see sections 80 to 85, 86 to 91 and 92 of the Sexual Offences Act 2003.

Orders

As to notification orders, see sections 97 to 100 and 102 of the Sexual Offences Act 2003. (Sections 101 and 103 of that Act were repealed as to Scotland by section 170(6) of the Police, Crime, Sentencing and Courts Act 2022).

As to sexual harm prevention orders, see Chapter 3 of Part 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22) . As to sexual risk orders, see Chapter 4 of that Part .

Jury directions

As to jury directions relating to sexual offences, see section 6 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

Procedure and evidence

As to procedure and evidence, see Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9)

Pardons and disregards

As to pardons and disregards, see the Historical Sexual Offences (Pardons and Disregards) (Scotland) Act 2018 (asp 14)

Rape

The offence of rape is created by section 1 of the Sexual Offences (Scotland) Act 2009.

Assault

Sexual assault by penetration, contrary to section 2 of the Sexual Offences (Scotland) Act 2009
Sexual assault, contrary to section 3 of the Sexual Offences (Scotland) Act 2009

Coercion

Sexual coercion, contrary to section 4 of the Sexual Offences (Scotland) Act 2009
Coercing a person into being present during a sexual activity, contrary to section 5 of the Sexual Offences (Scotland) Act 2009
Coercing a person into looking at a sexual image, contrary to section 6 of the Sexual Offences (Scotland) Act 2009

Communicating indecently

Communicating indecently etc., contrary to section 7 of the Sexual Offences (Scotland) Act 2009

Exposure

Sexual exposure, contrary to section 8 of the Sexual Offences (Scotland) Act 2009

Voyeurism

Voyeurism, contrary to section 9 of the Sexual Offences (Scotland) Act 2009

Administering substances

Administering a substance for sexual purposes, contrary to section 11 of the Sexual Offences (Scotland) Act 2009

Unlawful detention

Unlawful detention, contrary to section 8(3) of the Criminal Law (Consolidation) (Scotland) Act 1995

Incest and intercourse with step-children

Incest, contrary to section 1 of the Criminal Law (Consolidation) (Scotland) Act 1995
Intercourse with step-child, contrary to section 2 of the Criminal Law (Consolidation) (Scotland) Act 1995

Procuring

Offences against young children

Rape of a young child, contrary to section 18 of the Sexual Offences (Scotland) Act 2009
Sexual assault on a young child by penetration, contrary to section 19 of the Sexual Offences (Scotland) Act 2009
Sexual assault on a young child, contrary to section 20 of the Sexual Offences (Scotland) Act 2009
Causing a young child to participate in a sexual activity, contrary to section 21 of the Sexual Offences (Scotland) Act 2009
Causing a young child to be present during a sexual activity, contrary to section 22 of the Sexual Offences (Scotland) Act 2009
Causing a young child to look at a sexual image, contrary to section 23 of the Sexual Offences (Scotland) Act 2009
Communicating indecently with a young child etc., contrary to section 24 of the Sexual Offences (Scotland) Act 2009
Sexual exposure to a young child, contrary to section 25 of the Sexual Offences (Scotland) Act 2009
Voyeurism towards a young child, contrary to section 26 of the Sexual Offences (Scotland) Act 2009

Offences against older children

Having intercourse with an older child, contrary to section 28 of the Sexual Offences (Scotland) Act 2009
Engaging in penetrative sexual activity with or towards an older child, contrary to section 29 of the Sexual Offences (Scotland) Act 2009
Engaging in sexual activity with or towards an older child, contrary to section 30 of the Sexual Offences (Scotland) Act 2009
Causing an older child to participate in a sexual activity, contrary to section 31 of the Sexual Offences (Scotland) Act 2009
Causing an older child to be present during a sexual activity, contrary to section 32 of the Sexual Offences (Scotland) Act 2009
Causing an older child to look at a sexual image, contrary to section 33 of the Sexual Offences (Scotland) Act 2009
Communicating indecently with an older child etc., contrary to section 34 of the Sexual Offences (Scotland) Act 2009
Sexual exposure to an older child, contrary to section 35 of the Sexual Offences (Scotland) Act 2009
Voyeurism towards an older child, contrary to section 36 of the Sexual Offences (Scotland) Act 2009
Older children engaging in sexual conduct with each other, contrary to section 37 of the Sexual Offences (Scotland) Act 2009

Meeting a child

Meeting a child following certain preliminary contact, contrary to section 1 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9)

Abuse of trust

Sexual abuse of trust, contrary to section 42 of the Sexual Offences (Scotland) Act 2009
Sexual abuse of trust of a mentally disordered person, contrary to section 46 of the Sexual Offences (Scotland) Act 2009

Sexual services of children and child pornography

Paying for sexual services of a child, contrary to section 9 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005
Causing or inciting provision by child of sexual services or child pornography, contrary to section 10 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005
Controlling a child providing sexual services or involved in pornography, contrary to section 11 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005
Arranging or facilitating provision by child of sexual services or child pornography, contrary to section 12 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005

Indecent photographs

Indecent photographs etc. of children, contrary to section 52 of the Civic Government (Scotland) Act 1982 (c 45)
Possession of indecent photographs of children, contrary to section 52A of the Civic Government (Scotland) Act 1982, as inserted by section 161 of the Criminal Justice Act 1988

Prostitution, seduction and premises used for intercourse by girls under 16

Permitting a girl under 16 to use premises for intercourse, contrary to section 9 of the Criminal Law (Consolidation) (Scotland) Act 1995
Person having parental responsibilities causing or encouraging sexual activity in relation to a girl under 16, contrary to section 10 of the Criminal Law (Consolidation) (Scotland) Act 1995

Prostitution and brothels

Main article: Prostitution in Scotland

Trading in prostitution and brothel-keeping, contrary to sections 11(1) and (5) of the Criminal Law (Consolidation) (Scotland) Act 1995
Allowing child to be in brothel, contrary to section 12 of the Criminal Law (Consolidation) (Scotland) Act 1995
Living on earnings of another from male prostitution, contrary to section 13(9) of the Criminal Law (Consolidation) (Scotland) Act 1995

Soliciting

Soliciting and importuning by prostitutes, contrary to section 46 of the Civic Government (Scotland) Act 1982
Soliciting or loitering for the purpose of prostitution, contrary to section 1 of the Prostitution (Public Places) (Scotland) Act 2007 (asp 11)

Pornography

Extreme pornography, contrary to section 51A of the Civic Government (Scotland) Act 1982, as inserted by section 42(2) of the Criminal Justice and Licensing (Scotland) Act 2010

Former law

Offences under the former law:

Rape. The common law offence of rape was abolished by section 52(a)(i) of the Sexual Offences (Scotland) Act 2009.
Clandestine injury to women (e.g. sex with a sleeping woman). The common law offence of clandestine injury to women was abolished by section 52(a)(ii) of the Sexual Offences (Scotland) Act 2009.
Indecent assault. (Common law).
Unlawful sexual intercourse with girl under 13, contrary to section 3(1) of the Sexual Offences (Scotland) Act 1976 (c 67). Repealed by Schedule 3 to the Crime and Punishment (Scotland) Act 1997. The offence was replaced by a similar offence under section 5(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, which was in turn repealed by the Sexual Offences (Scotland) Act 2009.
Unlawful sexual intercourse with girl between 13 and 16, contrary to section 4(1) of the Sexual Offences (Scotland) Act 1976. Repealed by Schedule 3 to the Crime and Punishment (Scotland) Act 1997. The offence was replaced by a similar offence under section 5(3) of the Criminal Law (Consolidation) (Scotland) Act 1995, which was in turn repealed by the Sexual Offences (Scotland) Act 2009.
Lewd, indecent or libidinous practice or behaviour. (Lewd, indecent or libidinous practices). The common law offence of lewd, indecent or libidinous practice or behaviour was abolished by section 52(a)(iii) of the Sexual Offences (Scotland) Act 2009.
Lewd, indecent or libidinous practice or behaviour towards girl between 12 and 16, contrary to section 5 of the Sexual Offences (Scotland) Act 1976. This enactment was replaced by a similar enactment under section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995, which was in turn repealed by the Sexual Offences (Scotland) Act 2009.
Gross and shameless indecency between males, s.80(7) of the Criminal Justice (Scotland) Act 1980 (c.62); formerly s.7 of the Sexual Offences (Scotland) Act 1976.
Incest, s.2A. of the Sexual Offences (Scotland) Act 1976 (added by the Incest and Related Offences (Scotland) Act 1986 (c.36), s.1; formerly the Incest Act 1567 (c.15).
Intercourse with a stepchild, s.2B of the Sexual Offences (Scotland) Act 1976 (added by the Incest and Related Offences (Scotland) Act 1986).
Bestiality. (Common law).
Sodomy. The common law offence of sodomy was abolished by section 52(a)(iv) of the Sexual Offences (Scotland) Act 2009.

English offences taken into account under the Criminal Law Amendment Act 1922

Section 49 of the Sexual Offences Act 1956 formerly extended to Scotland.

References

James Chalmers. The New Law of Sexual Offences in Scotland. (Gordon's Criminal Law, supplement 1 to vol 2). W Green. 2010.
Alastair N Brown. Sexual Offences (Scotland) Act 2009. Second Edition. W Green. 2015.
Stair Memorial Encyclopedia.
Andrew M Cubie. "Sexual Offences". Scots Criminal Law. Fourth Edition. Bloomsbury Professional. 2016. Chapter 11. Page 175 et seq.
Gerald H Gordon. "Sexual Offences". The Criminal Law of Scotland. Second Edition. 1978. Part 5. Chapters 33 to 36.
Claire McDiarmid. "Sexual Offences". Scottish Criminal Law Essentials. Third Edition. Edinburgh University Press. 2018. Chapter 13. Page 137 et seq.
Sarah Christie. "Sexual Offences". Introduction to Scots Criminal Law. Pearson Longman. 2003. Chapter 10. Page 157 et seq.
R A A McCall Smith and David Sheldon. "Sexual Offences". Scots Criminal Law. Second Edition. Butterworths. 1997. Chapter 11. Page 191 et seq.
T H Jones and M G A Christie. Criminal Law. Fourth Edition. W Green & Son. 2008. Passim. See in particular "Proposed Reform of Sexual Offences", Chapter 9, Section 7, pages 279 to 282.
Michael G A Christie (ed). Gerald H Gordon. "Sexual Offences". The Criminal Law of Scotland. Third Edition. W Green. 2001. Volume 2. Part 5. Chapters 33 to 36. Page 505 to 558.
Clare Connelly. "Sexual Offences against the Person". Criminal Law. Fifth Edition. W Green. 2013. Page 62 et seq.
A M Anderson. The Criminal Law of Scotland. Bell & Bradfute. Sweet & Maxwell. 1892. Pages 92 to 99.
J H A Macdonald. A Practical Treatise on the Criminal Law of Scotland. Second Edition. William Paterson. 1877. Pages 167 to 170 and 198 to 203.
James Walker and D J Stevenson. A Practical Treatise on the Criminal Law of Scotland. Fifth Edition. 1948.
John Erskine and John Rankine. Principles of the Law of Scotland. Pages 621 to 623.
Gane, Stoddart and Chalmers. "Sexual Offences". A Casebook on Scottish Criminal Law. Fourth Edition. Thomson Reuters (Legal) Limited. 2009. Chapter 9. Page 360 et seq.
Pamela R Ferguson. "Sexual Offences". Scots Criminal Law: A Critical Analysis. Second Edition. Edinburgh University Press. 2014. Chapter 11.
Peter Hamilton and J Ross Harper. "Rape" and "Incest". A Fingertip Guide to Scots Criminal Law. Sixth Edition. Bloomsbury Professional. 2013. Pages 25 to 27.

For commentary on this offence, see T H Jones and M G A Christie. "Incest". Criminal Law. Fourth Edition. W Green & Son. 2008. Page 374 et seq.
For commentary on this offence, see T H Jones and M G A Christie. "Rape". Criminal Law. Fourth Edition. W Green & Son. 2008. Chapter 9. Section 5. Page 267 et seq.
For commentary on this offence, see T H Jones and M G A Christie. "Consent and indecent assault". Criminal Law. Fourth Edition. W Green & Son. 2008. Page 221 et seq.
For commentary on this offence, see T H Jones and M G A Christie. "Lewd, indecent and libidinous practices". Criminal Law. Fourth Edition. W Green & Son. 2008. Page 222 et seq.

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