The Sexual Offences (Scotland) Act 2009 states that rape occurs when a person intentionally or recklessly penetrates another person’s vagina, anus or mouth with their penis, where the victim does not consent and the person responsible has no reasonable belief that the victim is giving consent.
In circumstances where penetration is initially consented to but consent is later withdrawn, the person responsible will have committed rape if they continue in their conduct.
Consent is defined as ‘free agreement’. Where some form of coercion, violence or threat is used, this is not free agreement and consent would not be present.
In addition to this definition, the Act provides a list of situations where consent or ‘free agreement’ is deemed to be absent. These include:
Note: Other situations may occur that are not on this list. This does not imply that consent is given.
The Act also clarifies the position where consent is given then later withdrawn. It states the following:
Capacity to provide consent
Having the capacity to give consent is important. If the victim has any mental illness; personality disorder; or learning disability, however caused or manifested, this must be acknowledged. Anyone is incapable of consenting to conduct if through their mental disorder they are unable to do one or more of the following:
Sexual assault by penetration occurs when the person responsible intentionally or recklessly sexually penetrates the victim’s vagina or anus with any part of the body or object (e.g. fingers or anything else) where the victim does not consent and the person responsible has no reasonable belief that the victim is giving consent.
Both the perpetrator and victim may be male or female.
Sexual assault occurs when any of the following separate sexual acts take place and only if the victim did not consent to the sexual conduct: