The Sexual Offences (Scotland) Act 2009 (asp 9) is an Act of the Scottish Parliament. It creates a code of sexual offences that is said to be intended to reform that area of the law.
In 2004 the Scottish Law Commission began working on a reference from the Scottish Executive to "examine the law relating to rape and other sexual offences, and the evidential requirements for proving such offences, and to make recommendations for reform" and completed its report in December 2007.[1] The Scottish Government gave a commitment to bring forward legislation in the light of the Commission's review.[2] On 17 June 2008, the Scottish Government introduced the Sexual Offences (Scotland) Bill to the Scottish Parliament.[3] The Bill was passed by the Parliament on 10 June 2009.[4] The Act came into force on 1 December 2010 (except for sections 52 and 53(2)).[5]
The Act provides for a definition of consent: under the Act, a number of circumstances where the victim is unable to give consent (such as incapacitation due to alcohol consumption) are illegal.[6] A spokesperson for the Scottish Executive has said that the Act provides “a clear legal framework that reflects the values of modern society.”[7]
The Act did not cause particular controversy but was attacked by some Christian organisations for not taking the view that youths under 16 need protecting from any sexual activity with a person of similar age. The original draft created the new offence of "sexual activity with an older child while an older child", which would apply only to penetration of the vagina or anus. The final enacted version prohibits intercourse and oral sex between anyone under sixteen, but not other acts such as sexual fondling and mutual masturbation if the two people involved are 13 to 15 years old. This is more restrictive than the laws in much of Europe and the US, which permit full intercourse between people close in age even if one or both are below the age of consent. However it is more liberal than the Sexual Offences Act covering England and Wales, which contains no exceptions for any sort of sexual activity between minors.
It also introduces the concept of abuse of a position of trust criminalising teachers and other professionals who work with 16 or 17 year olds if they engage in any sexual relationship with them, unless the two people are married or were sexually involved since the youth's 16th birthday and before the position of trust came into being. This is also in line with the rest of the UK; Scotland retains an age of majority at 16 but has adopted many of the English laws classifying under-18s as children requiring protection. It creates the anomaly that the couple could marry legally without parental consent, with all the complexities that entails, but one-off sex is now a crime. The corresponding legislation in England and Wales is the Sexual Offences Act 2003.
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This section creates the offence of rape. It brings Scotland into line with the rest of the United Kingdom and most European countries by defining rape as penetration of vagina, anus or mouth without consent; previously the traditional definition of a man unlawfully penetrating the vagina of a woman with his penis was used, forced anal sex was charged as buggery and forced oral sex as sexual assault.
This section creates the offence of sexual assault.
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