Advocate Mark Strachan of the Black Stable has some reservations about the effectiveness of the new sexual offences provisions

Dramatic changes in the prosecution of sexual offences in Scotland will result from the new Sexual Offences (Scotland) Act 2009. With it will come new headaches for practitioners.

It creates new offences previously unknown to our law. Consent is now in a statutory form and it changes what constitutes rape in Scots law. New offences include sexual assault by penetration and a raft of others that would previously have been charged as lewd and libidinous practices.

The Act as a whole is non gender specific, a change that will require Judicial clarification on resultant difficulties. Is it a defence, for example, for a man charged with rape to say it was he who was raped as he was never asked if he consented to the act of intercourse?

Further, will this require a preliminary point to be taken claiming that the wrong person has been charged or, at least, not everyone involved has been charged and brought to justice on the indictment that he faces?

Is it also possible to be a complainer and an accused on the same indictment? This point alone is bound to give practitioners headaches.

Rape, covered in Section 1 of the new Act, has been changed fundamentally to conform with our poorer cousins south of the border and is now defined as penile penetration of the vagina, anus or mouth without the consent of the other party, or the reasonable belief that the other party is consenting.

More difficulties lie in the subsections. Penetration is said to be a continuing act from entry until withdrawal of the penis. Where, however, penetration was initially consented to but later the consent was withdrawn, penetration is said to be from the point at which consent is withdrawn until the withdrawal of the penis. There is much withdrawing in this section.

So what does this mean to practitioners advising clients?

Well a pen and paper might be handy along with condoms for a night out. Even that won’t obviate the difficulties of withdrawal of consent part-way through intercourse. With doubts over how ongoing consent is to be verified at the time, we are back to one person’s word against another.

Part 2 details consent and reasonable belief and generates more complications. Consent is said to be “free agreement”. Even though this has been given there are situations where it is said to be absent notwithstanding the giving of the consent.

These include:
• When the conduct takes place while the person is incapable of consenting to the conduct because of the effect of alcohol or any other substance. If someone agrees to the conduct and then more alcohol is consumed, is that consent thereafter time-barred and a new consent required?
• Where the conduct is agreed to because of violence or threats of violence. Where sadomasochism, for example, fit into consent?
• Where the conduct is agreed to mistakenly as to the nature or purpose of the conduct, this being as a result of deception.

Section 11(2) states that consent to conduct does not imply consent to any other conduct, suggesting consent is required for specific actings. Again a pen and paper would be useful to note what is consented to.

Finally, consent which has to be so carefully obtained and for specific actings can be withdrawn at any time. Does this mean that during intercourse assurance should be sought that consent is still valid?

Previously, female consent has been required but it now seems the consent of both parties is required. Practitioners must consider this when advising clients charged under the new Act.

Section 12 doesn’t help either. In assessing reasonable belief as to consent, regard must be given to whether the person took steps to ascertain whether there was consent and, if so, what those steps were. It is uncertain what evidence courts will expect for reasonable belief to be established.

Consider a scenario where Jack and Jill go up the hill where they kiss and cuddle. They feel each other all over on top of their clothing and then feel inside each other’s underwear. Jill suggests they have sex. They perform oral sex on each other then Jill gives Jack a condom and they have sex.

Next day, Jill calls police claiming she didn’t consent to the conduct with Jack.

Under the Common Law Jack could be charged with a single allegation of rape with added aggravations of kissing her on the mouth, placing his fingers into her vagina and placing his private member into her mouth. The maximum sentence open to the court is life imprisonment.

How many offences could Jack be charged with under the Sexual Offences (Scotland) Act 2009, however?

The list includes sexual penetration by placing his tongue into her mouth (section 1A); sexual assault by emitting saliva onto Jill (section 2(2) (e); sexual assault by having physical contact with Jill through her clothing (section 2(2) (c); sexual assault by having physical contact with Jill under her clothing (section 2(2) (c); rape by having oral sex with Jill (section 1), and rape by having vaginal sex with Jill (section 1).

As each section carries a maximum sentence of life imprisonment if the case is on indictment, Jack faces a cumulo six life sentences.

The conviction rate for rape in recent years has been poor, leading to public disquiet, but does this simply mean that the standard of rape prosecution in Scotland is poorer than for any other offences, or perhaps that the standard of rape defence in Scotland is better?

Could it be that some rape cases in Scotland should not get near a court, but that it’s difficult for the master of the instance to take a view on a case when he or she is at the coalface.

Clearly not, but what has been decided is that we need this legislation with 49 sections and 10 schedules to clarify a small section of our law.

It’s a sledgehammer to crack a possibly non-existent nut.