Report on rape and other sexual offences (SLC 209)

1 Report on Rape and other sexual offences Report on a reference under section 3(1)(e) of the Law Commissions Act 1965 Laid before the scottish parliament by the scottish Ministers December 2007 SCOT LAW COM No 209 SE/2007/243 EDINBURGH: The Stationery Office This publication (excluding the scottish Law Commission logo) may be re-used free of charge in any format or medium for research for non-commercial purposes, private study or for internal circulation within an organisation. This is subject to it being re-used accurately and not used in a misleading context. The material must be acknowledged as Crown copyright and the title of the publication specified.

2 For any other use of this material please apply for a Click-Use Licence for core material from the Office of Public Sector Information (OPSI) website: Telephone enquiries about Click-Use Licences should be made to OPSI, Tel: 01603 621000. ISBN: 978-0-10-888216-6 ii The scottish Law Commission was set up by section 2 of the Law Commissions Act 19651 for the purpose of promoting the reform of the law of Scotland. The Commissioners are: The Honourable Lord Drummond Young, Chairman Professor George L Gretton Professor Gerard Maher, QC Professor Joseph M Thomson Mr Colin J Tyre, QC. The Chief Executive of the Commission is Mr Michael Lugton.

3 Its offices are at 140 Causewayside, Edinburgh EH9 1PR. Tel: 0131 668 2131 Fax: 0131 662 4900 Email: Or via our website at select "Contact" NOTES 1. For those wishing further copies of this paper it may be downloaded from our website or purchased from TSO Scotland Bookshop. 2. If you have any difficulty in reading this document, please contact us and we will do our best to assist. You may wish to note that an accessible electronic version of this document is available on our website. 1 Amended by the Scotland Act 1998 (Consequential Modifications) (No 2) Order 1999 (SI 1999/1820). iii scottish LAW COMMISSION Report on a reference under section 3(1)(e) of the Law Commissions Act 1965 Report on Rape and other sexual offences To: Mr Kenny MacAskill MSP, Cabinet Secretary for Justice We have the honour to submit to the scottish Ministers our Report on Rape and other sexual offences .

4 (Signed) JAMES DRUMMOND YOUNG, Chairman GEORGE GRETTON GERARD MAHER JOSEPH M THOMSON COLIN TYRE Michael Lugton, Chief Executive 28 November 2007 v Contents Paragraph Page Part 1 Introduction Terms of reference 1 Background to the reference 1 Scope of the project 4 Prosecution policy and practice 4 Prostitution 4 Pornography 5 Adult entertainment 5 What are sexual offences ?

5 5 Guiding principles for reforming the law of sexual offences 7 Clarity of the law 7 Respect for sexual autonomy 8 Protective principle 8 Distinctions based on sexual orientation or gender 9 other types of legal and social intervention 9 European Convention on Human Rights 9 A note on terminology: victims and complainers 10 Structure of the Report and outline of our recommendations 11 Legislative competence 11 Part 2 Consent Consent and sexual offences 13 Alternative approaches to defining sexual offences 14 Determining consent 15 Ambiguity of consent 16 Problems in the use of consent as a defence 16 Stereotypes of women s sexuality 16 Focus on the victim 17 Should the law define consent?

6 18 Refining consent: an active, not passive, model of consent 19 General definition of consent 23 Particular definitions of consent as free agreement 25 Nature and status of items in the list 25 Should there be 'negative' indicators? 27 Non-exhaustive nature of the list of particular definitions 28 Comments on the particular definitions 30 Lack of capacity to consent as a result of intoxication 31 Agreement or submission because of violence, or threats of 32 violence, against the victim or another person vii Contents (cont'd)

7 Paragraph Page Agreement or submission because of unlawful detention 33 nature and purpose of the sexual act identity of the other person victim Agreement or submission as a result of deception as to the 34 Agreement or submission as a result of deception as to the 34 Expression of agreement made by someone other than the 35 sexual activity with a person who is asleep or unconscious 36 Limited or specific consent 36 Withdrawal of consent 37 Notice of a 'defence' of consent 38 Part 3 sexual assaults Introduction 39 Should there be a separate category of sexual assaults?

8 39 Undifferentiated sexual assaults 41 Distinguishing types of sexual assault 41 Rape 44 Actus reus 45 Penalties and jurisdiction 46 Common law and statutory provisions on rape 46 sexual penetration and sexual assault 47 Defining ' sexual ' 48 Meaning of penetration 49 Common law crime of indecent assault 49 Coercing sexual conduct 50 other forms of coercive sexual conduct 51 Administering stupefying substance for sexual purpose 53 Mens rea 54 Mens rea as to the act 54 Mens rea as to consent 55 Medical exemption 57 Part 4 offences based on a protective principle Introduction

9 58 A. Children and young persons 61 Common law 61 Statutory offences 61 Gender neutrality 63 viii Contents (cont'd) Paragraph Page The 'age of consent' 63 offences involving sexual activity with young children 64 What age? 64 The role of consent 65 Strict liability 67 Defences 68 offences involving children under 16 69 The wrongfulness of (consenting) sex with children 70 Application of the offences where both parties are under 16 72 Children under 13 74 Defences 74 Mistake as to age 75 Marriage.

10 Civil partnerships 76 Burden of proof 77 Proximity of age defence 79 Problems with proof of age 80 offences concerning indecent conduct 81 B. Persons with mental disorder 82 An offence against sexual exploitation of people with mental 85 disorder? C. Persons in positions of trust 86 (1) Abuse of trust in family settings 88 Age of the parties 88 Definition of relationship of trust 89 Types of prohibited conduct 89 Defences 90 (2) Breach of trust involving persons with a mental disorder 91 Defences 92 (3)