What is the Law?

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In circumstances where penetration is initially consented to but consent is later withdrawn, the person responsible will have committed rape.

The victim can be male or female.

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:

  • Where the victim is incapable of consenting because of the effect of alcohol or any other substance.
  • Where the victim is asleep or unconscious.
  • Where the victim agrees or submits to the conduct because of violence or threats of violence used against them, or any other person.

Note: Other situations may occur that are not on this list. This does not imply that consent is given.

Withdrawing consent

The Act also clarifies the position where consent is given then later withdrawn. It states the following:

  • Consent to one type of conduct does not imply consent to any other type of conduct.
  • Consent to conduct may be withdrawn at any time. This can be before or during the conduct.
  • If the conduct takes place or continues to take place after consent has been withdrawn, it does so without consent.

 

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:

  • Understand what the conduct is.
  • Decide whether to engage in the conduct (or as to whether the conduct should take place) or not.
  • Communicate any such decision.

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.

  • Touching the victim in a sexual way.
  • Having any other sexual physical contact with the victim, whether directly or through clothing and whether with a body part or implement.
  • Ejaculating semen onto the victim.
  • Emitting urine or saliva onto the victim sexually.

Both the perpetrator and victim may be male or female.