Report on Rape and Other Sexual Offences [2007] SLC 209(4) (Report) (19 December 2007)

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Scottish Law Commission (Reports)

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Cite as: [2007] SLC 209(4) (Report)

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Part 4 Offences based on a protective principle

Introduction

The current law contains various types of sexual offence which are aimed at protecting persons whose involvement in sexual activity is problematic. These persons include children, persons with mental disorder, and persons over whom others hold a position of trust. Examples of such offences include the following:

(1) It is an offence for a person to have sexual intercourse with a girl under the age of 13 years.^[1]

(2) It is an offence for a person (including someone under the age of 16) to have sexual intercourse with a girl of or over the age of 13 and under the age of 16.^[2]

(3) It is an offence for a person who is in a position of care over another person who suffers from a mental disorder to engage in a sexual act with that other person.^[3]

(4) It is an offence for a person of 18 or over to engage in sexual activity with a person under that age where there was a 'position of trust' between the parties.^[4]

The preliminary question which has to be considered is whether offences based on a protective principle continue to be a necessary part of the law on sexual offences. In particular, the question arises what this principle adds to the principle that sexual activity which does not involve the consent of all the parties to it should be criminalised. It should be borne in mind that when many of the existing offences were enacted, the criminal law used a loosely defined model of consent, which could give rise to a lack of certainty as to when someone could be said to consent to sexual activity. However if, as recommended in Part 2, a more detailed model of consent is used in defining sexual offences, then there may be no need for any special provision in respect of persons such as children or those with a mental disorder. Either such persons can and do consent to sexual activity, in which case the sexual activity is legally permissible; or they cannot or do not give consent, in which case the activity involves a breach of their sexual autonomy and hence should be criminal. Moreover, in this project we have adopted a further guiding principle for reform of sexual offences, namely that where sexual activity is genuinely consensual, then it should not be criminalised in the absence of clear and convincing reasons.

^[5]

A further, but secondary, point is that if separate protective offences are retained along with a refined consent model, it might suggest that the consent model cannot apply in the case of persons who are vulnerable to exploitation because of their age or mental condition. A possible undesirable consequence is that the courts might then give a narrow interpretation to the general provisions on consent, even in cases which do not involve vulnerable persons.

However, there are also arguments in favour of retaining offences based on a protective principle, even if a richer model of consent were to be introduced. In the first place, some provisions involving children and other vulnerable people are fully consistent with the principle that sexual activity not involving the consent of the participants should be criminal. For example, a rule which states that a child under the age of 10 is not capable of giving consent to sexual intercourse can be interpreted as embodying a general rule that as a matter of fact most children of that age lack the intellectual capacity to give such consent. The rule is then a useful mechanism for by-passing problems of proof of lack of consent in individual cases.

Nonetheless, it has to be accepted that not all rules which fall within a protective principle can be justified in this way. Although it is probably true (for example) that no child under the age of 10 could give meaningful consent to sexual intercourse, the same does not necessarily hold for children aged 14 or 15. Likewise with persons who have a mental disorder. Certain forms of mental disorder clearly preclude the giving of consent to sexual activity but not all do.

A further justification for protective offences is not simply to do with the question of consent or no consent. Rather, these provisions serve an important symbolic function of giving direct expression to the principle that vulnerable persons are protected, and are seen to be protected, by the criminal law. Sexual activity with young children or with persons with a serious mental disorder is wrong and the law should say so explicitly rather than subsuming such cases in a more general principle of consent. Protective offences are not inconsistent with the general consent model. They try to spell out in detail what is implicit in that model in respect of vulnerable persons.

There are two quite different types of wrong involved in these cases. The first involves the judgment that certain forms of sexual activity are in breach of social and moral norms. The activity in question is intrinsically wrongful. Examples are sexual activity with young children and with persons with serious mental disorder. These cases would always fall within a consent model of the kind suggested earlier but that model does not sufficiently bring out what is at the core of the wrongdoing. Consent is a key element of the law on sexual offences because it protects the sexual autonomy of a person who has capacity to give consent but who on any particular occasion chooses not to engage in the activity. There is an additional wrong where the person involved lacks any capacity either to give or to withhold consent. Where a person is entirely lacking this capacity, sexual activity is never permissible, and the law should therefore mark out these cases as a distinct form of wrong from those where sexual activity is with a person whose capacity to consent to sex exists but is disregarded.

Another category of wrong concerns people whose capacity to consent is not fully lacking but is in some way underdeveloped. This is true of (some) children in their teens or persons with a less serious form of mental disorder, such as certain learning disorders. In these types of case, the law does not mark out conduct which is intrinsically wrong but rather aims to protect persons who, although they may be able to consent to sexual activity, are vulnerable to exploitation by others. In this situation, a person can give consent but the consent is held to be of dubious validity because of the person's immaturity or lack of full mental health. But here too the law serves an important symbolic role. By imposing criminal liability for sexual activity involving (older) children or persons who are otherwise open to exploitation, the law sends a clear warning to persons that they should not be involved with this type of activity.

On this view, the protective principle has two quite separate rationales, and it is important that the law makes each of these explicit. The rationales are (1) that sex with young children and with persons with serious mental disorders is wrong and (2) that persons who are vulnerable to sexual exploitation should be protected. It is important that the difference between these two principles should be borne in mind when making proposals for formulating offences to give effect to them. Whereas the first deals with cases where there is no consent at all, the second principle is concerned with situations where consent is given but the validity of that consent is made doubtful by the circumstances of vulnerability. This important distinction exists in the present law. For example, sexual intercourse with a girl under the age of 13 is treated as a very serious offence, for which no defence as to mistake of age is permitted.

^[6]

^[7]

In the Discussion Paper we stated that we were inclined to accept the arguments in support of the retention of offences based on the protective principle, which we regarded as complementary to the consent model we have recommended. In order to gauge wider reaction, we asked whether in addition to the consent model, there should continue to be special provisions relating to sexual activity involving children, persons with mental disorder, and persons otherwise open to sexual exploitation. There was unanimity in the response from consultees that the law should retain these protective provisions. Accordingly we now set out our proposals for reform of the law relating to three categories of people who in our view fall within the scope of the protective principle. These are:

(a) children and young persons;

(b) persons with a mental disorder; and

(c) persons who are owed duties of trust.

A. Children and young persons

The existing law contains a variety of provisions on sexual offences involving children.

Common law

The common law offences of rape and indecent assault apply just as much to non-consenting victims under the age of 16 as to adults. Furthermore, there is a special rule in relation to rape involving a victim under the age of 12. In this situation any question of the girl's consent is ignored, and any sexual intercourse with a girl under 12 is rape at common law. It should be noted that there is no similar rule where sodomy has been committed against a boy.

^[8]

In addition, there is a special common law offence, known as lewd, indecent or libidinous conduct, which applies only in respect of sexual conduct with a child under the age of puberty (that is, 12 in the case of a girl, 14 in the case of a boy). The type of conduct covered by this offence is wide-ranging,

^[9]

^[10]

^[11]

Statutory offences

The main statutory offences involving sexual activity with children are as follows:

(1) It is an offence for a man to have sexual intercourse with a girl under the age of 13.^[12] There is no defence of mistake of the girl's age.

(2) It is an offence for a man to have sexual intercourse with a girl of or over the age of 13 and under the age of 16.^[13] There are two defences: first, that the man had reasonable cause to believe that the girl was his wife; secondly, that the man had reasonable cause to believe that the girl was 16 or older provided that he was under the age of 24 and had not been previously charged with this or a similar offence.^[14]

(3) The common law offence of lewd, indecent or libidinous conduct is extended to girls over the age of 12 and under the age of 16.^[15] The defences mentioned in (2) above do not apply.

(4) It is an offence for a man to commit a homosexual act (defined as sodomy and an act of gross indecency) with a boy under the age of 16.^[16] It is a defence that the accused had reasonable cause to believe that the boy was 16 or older provided the accused was under the age of 24 and had not been previously charged with a like offence.

(5) The offence of incest, that is having sexual intercourse with a person within specified degrees of relationship, applies to children.^[17] It is a defence that the accused did not consent to the intercourse, did not know that the other person was within the specified degrees, or was married to the other person.

(6) It is an offence for a step-parent to have sexual intercourse with a step-child where the child is (a) under the age of 21 or (b) 21 or older and before attaining the age of 18 had lived in the same household and had been treated as a child of the family.^[18] It is a defence that the accused did not know that the other person was a step-child, believed that the person was over the age of 21, did not consent to the intercourse or was married to the other person at the time when the intercourse took place.

Many, if not most, of these provisions, may appear acceptable or desirable when viewed in isolation but the overall state of the law is unsatisfactory.

(1) There is a lack of coherence between the different provisions. Some offences apply only in respect of male offenders and female victims; others apply only in respect of male offenders and male victims. This situation leaves gaps in respect of sexual acts committed by women with boys.^[19]

(2) The common law offence of lewd, indecent or libidinous conduct is vague, and its exact scope uncertain. Moreover, since the removal of the offence of shameless indecency, certain types of 'indecent' conduct may no longer be criminal.

(3) The operation of defences to some of these provisions creates problems. The so-called young man's defence (that is where there is a defence of mistake of age for certain offences involving children under 16 but only if the accused himself is under the age of 24 and has never been charged with a like offence) is lacking in any obvious principle. But whereas there is such a defence in respect of sexual intercourse with a girl under 16, there is no mistake of age defence for indecent conduct falling short of intercourse with a girl below that age.

In the Discussion Paper we stated that our general approach to reform was to build upon the existing law but with the aim of making the law on protective offences for children and young people more coherent and more comprehensive. That remains the approach which we take in formulating our recommendations for statutory reform.

Gender neutrality

One of the guiding principles for reform which we have adopted in this project is that the law on sexual offences should not involve distinctions based on sexual orientation or types of sexual practice or on gender.

^[20]

23 The law on sexual offences relating to children should not make any distinction in terms of the gender of the child or of the perpetrator of such offences.

The 'age of consent'

Much of the discussion on sexual offences and children uses the expression 'the age of consent', which is generally understood as the age of a child below which any sexual activity is wrong and at or over which sexual activity is legally permissible. In this general sense of the term, the age of consent in Scots law is 16. However many legal systems (including Scotland) adopt a more nuanced approach and reject the idea that there is one and only one age which is relevant to fixing criminal liability for sexual activity. In Scots law, for example, there are special rules which apply in respect of sexual intercourse with a girl under the age of 13. There are offences which apply in respect of sexual activity with persons over 16 and under 18 years of age. Referring to 'the' age of consent tends to hide these differences.

In relation to sexual offences involving children, many legal systems draw a key distinction between the age of a child at which sexual activity is absolutely wrong and a higher age at which sexual activity is still wrong but for which a limited number of defences are available. In its recommendations for reform of English law (which were implemented in the Sexual Offences Act 2003) the Home Office Review Group noted that it had encountered considerable support "for the proposition that the law should make a distinction between an age when children ought not to engage in sex, and an age below which it was absolutely wrong to do so."

^[21]

In the Discussion Paper we proposed that the law should retain this distinction and that there should be special provisions in applying the law on sexual assaults and coerced sexual activity to children below a defined age, whom we referred to as 'young children'. None of our consultees disagreed with this proposal.

^[22]

Offences involving sexual activity with young children

In Part 3 of this Report we have made proposals for the introduction of two types of offences involving sexual assault (rape and sexual assault). We also proposed that there should be various offences dealing with coerced sexual conduct. Part of the definition of each of these offences is that the activity in question took place without the consent of the victim. What we are currently proposing are ways in which these offences can be adapted to apply to cases where a victim is a young child and to make them offences of strict liability (that is, there are no defences in respect of the key elements of the offence).

^[23]

^[24]

What age?

The rationale for provisions that make sexual activity with young children criminal is that children below a certain age should not be involved in sexual activity in any circumstances. The question then is what should be the age used in defining these offences. Scots law currently uses two ages. There is a common law rule that sexual intercourse with a girl below the age of 12 is rape. A similar approach is taken in the Draft Criminal Code which provides that for the purposes of the provisions on sexual offences "any consent given by a person is to be disregarded if at the time when the consent was given the person was under 12 years of age."

^[25]

^[26]

^[27]

It may also be worth noting in this context the rules on the age of criminal responsibility. Scots law contains two such rules. A child under the age of 8 is deemed incapable of committing a crime. Moreover, children under the age of 16 can be (and in practice are) prosecuted for crimes only in exceptional cases, with most instances of child offenders being dealt with as part of the children's hearings system. The rule on children under 8 lacking criminal responsibility has been criticised as setting the threshold age too low, and we have made proposals for reform of this rule by replacing it with a rule that no child under the age of 12 can be prosecuted for any offence.

^[28]

In the Discussion Paper we asked whether the age for offences in relation to young children should be 12 or 13. There was an equal division of preferences between the two options. Moreover we accept that the ages expressed in our question may have been misinterpreted.

^[29]

^[30]

^[31]

Accordingly, we recommend that:

24 There should be special provisions in applying the law on rape and other sexual assaults and coerced sexual activity to children who have not reached the age of 13.

(Draft Bill, sections 14-19)

The role of consent

Another relevant factor in respect of offences involving sex with young children is the relationship between those offences and sexual offences based on the lack of consent by the victim (that is rape, other sexual assaults and coerced sexual activity). There are two approaches to this issue. On the first approach the provisions relating to young children are taken as special rules on the absence of consent. Thus for offences such as rape or sexual assault, there is no need to prove absence of consent where the victim is under the age in question as such children are deemed to lack the capacity to consent. The offences nonetheless remain those of rape or sexual assault committed without the victim's consent. By contrast, the second approach treats the provisions on young children not as types of sexual assault involving the absence of consent but as offences over and above, and complementary to, sexual assaults. In other words, on this approach these provisions apply only where the fact that the child consented is not in dispute. Cases involving lack of a child's consent (which is a question of fact in each case) are still treated as sexual assaults.

The second approach has been adopted in English law. The Sexual Offences Act 2003 creates a number of offences involving sexual acts with children under the age of 13.

^[32]

not

^[33]

Scots law tends to take the first approach in relation to the connection between the age of young children and consent. The common law rule that a girl below the age of 12 cannot consent to sexual intercourse is in effect a form of 'common law' rape, akin to the idea of statutory rape. Indeed it appears to be the practice in Scotland that the separate statutory offence (sexual intercourse with a girl under the age 13) is used only where the girl is aged between 12 and 13 and for the Crown to charge an accused with rape at common law where the girl is below 12.

^[34]

The advantage of the Scottish approach is that it makes the law simple to understand and to apply. Rape involves sexual penetration without consent. Young children below a certain age cannot, as a matter of law, consent. Therefore, sexual penetration of a child under that age is a form of rape. However, a possible disadvantage of this approach is that it fails to bring out what is especially wrong about persons having sex with very young children and treats all these cases as involving the child's lack of consent to sexual activity. By contrast, the merit of the English approach is that it has two separate offences for two different types of wrong. For example, where a young child does not consent to sexual intercourse then the offence of rape has been committed. But even where a young child does as a matter of fact consent to sexual intercourse then the activity is still criminal (sexual intercourse with a child under 13).

The majority of consultees who responded on this issue expressed a preference for the view that the offences should be based on the idea that children below the age of 13 lack capacity to consent to sexual intercourse. We consider that such a view is not only easier to understand but is also the more principled. Sexual intercourse with any child under the age of 13 should be seen for what it is, namely rape of a child.

Accordingly, we recommend that:

25 The offences involving rape and other sexual assaults and coerced sexual activity which apply to children under the age of 13 are based on the legal premise that children below that age lack capacity to consent to sexual activity.

(Draft Bill, sections 14-19)

Strict liability

Earlier we stated that some of the current offences involving young children are offences of 'strict' liability. We wish to make clear what strict liability means. Liability is said to be strict where a person is held to be criminally responsible without proof of mens rea in respect of all elements of the offence.

^[35]

It should be noted, however, that there is a presumption that mens rea is required as to the central elements of a statutory offence.

^[36]

^[37]

^[38]

However, the question arises whether a provision making liability strict as to the age of the child is compatible with the provisions of the ECHR. We note that the European Court of Human Rights has held that strict liability is not per se an infringement of the Convention.

^[39]

The question of strict liability in relation to sexual offences has been considered in the English courts. In R v G,

^[40]

The Court of Appeal refused the appeal.

^[41]

R v G

The argument about an infringement of article 8 was based on the circumstance that the accused in this case was aged 15. The Court of Appeal held that the possibility that a prosecution of a child in relation to consensual sexual intercourse might, depending on the particular facts, amount to an unjustified interference with the child's rights under article 8(1).

^[42]

We conclude on the basis of the Court of Appeal's decision that a provision imposing strict liability as the age of child in offences against children under the age of 13 would not be in breach of the Convention.

We recommend that:

It is not a defence to an offence involving rape or other sexual assaults and coerced sexual activity which apply to children under the age of 13 that the accused believed that the child was 13 or older.

(Draft Bill, section 20)

Defences

We have described as strict liability an offence where there is no need for mens rea in respect of one or more of the defining features that offence. We now consider whether for offences which protect children under 13 there should be any defence which is extraneous to the definition of the offence itself. One such possible defence, which exists at present in respect of offences against children aged between 13 and 16, is marriage. We consider later whether that defence should continue to exist for those offences.

^[43]

Under Scots domestic law a person cannot marry if he or she is below the age of 16,

There was overwhelming support among consultees for our proposal in the Discussion Paper that there should be no defence of marriage (or any other relationship) for offences involving young children. Accordingly, we recommend that:

There should be no defence to offences involving rape or other sexual assaults and coerced sexual activity which apply to children under the age of 13 that the accused was married to, or in a civil partnership with, the child.

(Draft Bill, sections 14-19)

Offences involving children under 16

We now consider offences involving sexual activity with children who are below 16 years of age but are aged 13 or older (whom we refer to as older children). This category of sexual offence is controversial mainly because of tensions in the aims of the criminal law in this area. There is a clear social need for the protection of children from sexual abuse and exploitation, especially by adults. There is probably a broad consensus as to the legitimacy of such a goal but not necessarily as to the ways in which it should be achieved. Offences which are based on the lack of a victim's consent to sexual activity (such as rape or indecent assault) apply to children in this older age group. The question then arises why there is any need for other offences to protect such children. The most relevant issue is that many older children may have the capacity to consent to sexual activity. In this context, there is no scope for provisions which deem children under 16 to lack capacity to consent or for offences of 'statutory' rape and sexual assault. Specific sexual offences in relation to older children must be ones which criminalise consensual sexual activity. A particular problem with this approach is that all the participants in such 'under age' sex might themselves be children in that age group. It seems to be an extreme outcome that 14 or 15 year-old children are to be prosecuted for engaging in activities that are both consensual and, as a matter of empirical fact, prevalent.

^[49]

Accordingly, there are two main objections to offences which criminalise sexual activity involving older children. The first is that such offences penalise sexual activity where there is no lack of consent. The second is that such offences penalise conduct which (older) children engage in with each other on a voluntary and consenting basis. We consider each of these points in turn.

The wrongfulness of (consenting) sex with children

There is without question a wrong where a person has sex without his or her consent, and this applies just as much where the victim is a child. But if an older child has capacity to consent and does in fact consent to a particular sexual act, is any wrong involved? We have already set out, in general terms, the arguments for the application of a protective principle in respect of persons who can and do consent to sexual activity.

^[50]

^[51]

Nonetheless, it might be argued that children on reaching their 13^th birthday do not need this type of protection. According to this view, there must be a point at which a person is thought to be mature enough to decide whether to engage in sexual activity, and that age should be lower than 16. In effect, this is an argument to lower the age of consent to 13. It should be noted that this is an argument of general principle. It is not dealing with the separate issue of children who have sex with other children, or with removing criminal liability from children who have sex.

^[52]

any age

^[53]

In the Discussion Paper we said that we did not agree with this approach. Our view was that the provisions on consent and on abuse of trust do not by themselves provide adequate protection for children aged 13 to 16. The consent model which we set out in Part 2 widens the scope of what is meant by consent to sexual activity. What that model does is to require examination of parties' interactions to determine whether consent had been given. Thus, a man having sex with a 13 year-old boy or girl would be guilty of rape or assault where the man plied the child with drink, threatened violence, where the child was asleep, and so on. But the consent model does not capture cases where consent is actually given but for questionable reasons. Thus, a woman having sexual intercourse with a man to obtain money or other material reward is not rape. The law must allow people to engage in sex for bad reasons. But this approach would apply equally to children under 16 if protective offences were abolished. It would not then be rape, or any other offence, where a boy of 13 consented to having sex with a man of 52 in exchange for money, or an iPod. Nor is there is any lack of consent where a man of 40 'chats up' a girl of 13 and persuades her to have sexual intercourse with him.

There are also limits to the application of the abuse of trust provisions to cases involving children under 16. By definition, these cases are limited to instances where a position of trust exists between the parties. Thus, on the abolitionist approach, sex with a 13 year-old boy would still be an offence where the other party was a member of his family or a teacher. But there would not be any offence where the same child had sex with a complete stranger, or indeed any adult who did not have a position of trust over him.

We also think that lowering the age of consent to 13 would have implications for many other areas of law and policy, for example the age of capacity to marry and enter a civil partnership.

^[54]

^[55]

In the Discussion Paper we set out our view that these arguments amounted to good reasons of principle for retaining protective offences in respect of children aged between 13 and 16. We accepted that there are issues to be considered about defences to these offences and the appropriate legal response to the situation where these offences were committed by children under 16. Subject to those issues we proposed that there should continue to be protective offences in respect of children aged between 13 and 16. There was virtually unanimous support for this proposal among consultees.

In the Discussion Paper we also considered what sexual activities should be covered by the protective offences applying to older children. A crucial point here is that these offences involve the consent of the child. A further matter is whether the offences should apply where both parties are under 16 years of age. We deal with that matter below.

^[56]

^[57]

There should be special provisions applying the law on sexual penetration and other sexual assaults and on coerced sexual activity to children aged between 13 and 16 where the conduct involves the consent of the child.

(Draft Bill, sections 21-26)

Application of the offences where both parties are under 16

There are problems in applying sexual offences relating to consensual sexual activity with young children to cases where the participants are themselves children.

^[58]

^[59]

"The 'legislative overkill' point is that the child sex offences cover not only consensual sexual acts between children and adults, but all forms of sexual behaviour between consenting children. The result is to render criminal a range of sexual acts, some of which are usually thought to be normal and proper, and others at least not seriously wrong. … So far are these provisions of the Act out of line with the sexual behaviour of the young that, unless they provoke a sexual counter-revolution, they will eventually make indictable offenders of the whole population."

In the Discussion Paper we considered whether children under 16 should be exempted from criminal liability under the provisions designed to protect children aged between 13 and 16. We took note of the rules on the age of criminal responsibility in Scots law. The general position for over 30 years or so has been that children under the age of 16 are not prosecuted in the criminal courts. The vast majority of cases involving children under 16 who commit an offence are dealt with through the children's hearings system and not in the criminal justice system. In our project on the age of criminal responsibility, we estimated that in the period we studied over 99 per cent of children alleged to have committed a crime were dealt with in the hearings system, and less than 0.5 per cent were prosecuted in the criminal courts.

^[60]

As regards protective offences for children aged between 13 and 16 our preferred approach was not to exempt children under 16, as offenders, from the scope of these offences. Rather, we argued that these cases should be integrated into the general system on the prosecution of children under 16. The advantage of proceeding in this way was that the practical effect would be that criminality would not in the vast majority of cases be attached to consenting sexual activity between under 16 year-olds. Yet at the same time criminal prosecution could be brought against a child under 16 where there were compelling public interest reasons for doing so (for example, in cases involving exploitation); and, further, children under 16 who engaged in sexual activity could, where appropriate, be referred to a children's hearing. Our proposal in the Discussion Paper that the protective offences for older children should apply to children under 16 who commit them was in broad terms supported by consultees. However there were noticeable dissents from this position, especially from bodies which are concerned with the issue of children's welfare.

^[61]

We have reconsidered our position in the light of the points raised during consultation, and we now recommend that the provisions should not apply where the parties are under 16. We wish to emphasise that these provisions deal only with conduct involving consent. There is no question of removing criminal liability for people under 16 who participate in sexual conduct with someone who does not consent to it. Where there is exploitation by one child of another who is aged 13 to 16, then that conduct should be criminal where there is no consent to it. In making this recommendation we are particularly struck by anomalies which would follow in criminalising consenting sexual activity between teenagers, which would extend to activities such as kissing each other. We are not impressed by the argument that such criminal liability would be theoretical only and in the vast majority of cases there would be no criminal prosecutions. Such an approach fails to take account of the possibility that older children might still be subject to investigation by the police, even if prosecution in the criminal courts is unlikely. More fundamentally, there is an important point of principle involved. If consenting sexual activity between young people is not to attract criminal liability, then the activity should not be criminal.

At the same time we are not saying that children who engage in sexual activity should be immune from any form of social intervention. There will be cases where there are issues about the welfare of children who are sexually active and who should be referred to a children's hearing. Our understanding is that there is no ground of referral to a hearing of such a child other than that the child has committed an offence.

^[62]

We recommend that:

The offences mentioned in recommendation 28 cannot be committed by a person who has not reached the age of 16.

(Draft Bill, sections 21(1); 22(1); 23(1); 24(1); 25(1); 26(1), (2))

There should be a ground of referral of a child to a children's hearing that the child has engaged in sexual activity with another person or has been subjected to sexual activity with another person.

(Draft Bill, section 29)

Children under 13. The ground of referral would allow for a case of a child of any age under 16 to be considered by a children's hearing no matter the age of the child. However, where a child of any age (including a child under 13) has a sexual contact with another child who is under 13 and the conduct falls within the scope of the strict liability offences, this ground of referral would not apply. As the conduct amounts to a criminal offence, the ground of referral must be that the child has committed a criminal offence.

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Defences

On any view, offences involving consensual sexual activity with children aged 13 to 16 are less serious than offences relating to sex with children under 13. Earlier we recommended that in relation to offences involving children in the lower age group there should be strict liability as to the child's age and there should be no specific defences.

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^[68]

(i) Mistake as to age. The current law on mistake as to age contains significant qualifications. It allows an accused to show that he had reasonable cause to believe that the child was of or over 16 years of age but the defence is only open to an accused who is himself under the age of 24.

A large majority of consultees agreed that there should be a defence in general terms to offences against older children that the accused believed on reasonable grounds that the child was 16 or over, and that this defence should be without the qualifications contained in the present law. Most consultees also agreed that the Crown should be allowed to lead evidence that the accused had previously been charged with a like offence. However, we do not see any need for a specific rule to this effect and consider that the matter is best left to general rules about the admissibility of character evidence.

One other matter arises in connection with the accused's belief about the age of the complainer. Offences against older children are defined in terms of the child being aged 13 but not yet 16. As noted, we are recommending that there should be a defence that the accused reasonably believed that the child was 16 or older. Although the defence is specifically limited to a belief as to the age being 16 or older, it might be thought that the accused could escape liability if he believed that the child was under 13. We do not consider that there is any scope for such an defence but to put the matter beyond doubt we recommend that there should be no defence on such a basis.

We recommend that:

There should be a defence to an offence relating to sexual activity with a child aged between 13 and 16 that the accused believed on reasonable grounds that the child was 16 or older.

(Draft Bill, section 27(1)(b))

It should not be a defence to an offence relating to sexual activity with a child aged between 13 and 16 that the accused believed that the child was under 13 years of age.

(Draft Bill, section 27(4))

(ii) Marriage; civil partnerships. The offence of having sex with a girl under 16 applies only in respect of 'unlawful' sexual intercourse.

In the Discussion Paper we stated our view that it is appropriate to remove criminal liability for consensual sexual conduct between spouses, at least where neither is a young child.

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In the Discussion Paper we proposed that there should be a defence to the protective offences for older children that the parties were married or in a civil partnership recognised as valid under Scots law. Consultees gave this proposal a mixed reception. Some of those who opposed the defence may have failed to appreciate that the validity of a marriage or civil partnership under foreign law was not enough. The marriage or civil partnership had to be recognised as valid under Scots law. Others took exception to Scots private international law ever giving recognition to such relationships involving people under 16.

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In the Discussion Paper we also proposed that the defence should apply where in fact the parties were not married or civil partners but the accused believed on reasonable grounds that he or she was. As with the previous proposal this proposal received a mixed response. However, we have decided not to make any recommendation that there should be a defence on this basis. Being married (or unmarried) is not a defining element of the offences. Rather the defence is based on the policy that it is wrong to impose criminal penalties on people who have sexual contact whilst married to each other. This policy has a much weaker application to persons who merely think that they are married. Furthermore, a defence of belief in marriage is not consistent with the requirement for the defence of marriage that the marriage should be one recognised by Scots law. Two people who enter into a marriage valid by their own personal law but which would not be recognised in Scots private international law would nonetheless be able to claim that they believed that they were married.

We also noted that at common law, it is not entirely clear to what extent Scots private international law recognises civil partnerships, or other relationships such as homosexual marriages, contracted abroad.

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We recommend that:

There should be a defence to an offence relating to sexual activity with a child aged between 13 and 16 that the accused and the child were married or in a civil partnership recognised as valid under Scots law.

(Draft Bill, section 27(1)(a))

Burden of proof

In the Discussion Paper we made two different proposals as to the burden of proving these defences. For the reasonable belief in age defence we suggested that the onus of proving the defence should lie on the accused as a legal, and not simply an evidential, burden.

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In respect of the defence of marriage or civil partnership we noted that such a defence would be based on events occurring outside Scotland. Accordingly there might be difficulties for the Crown establishing that the parties were not married or in another form of relationship. However, under the existing law in respect of girls under 16, the lack of marriage between the parties is part of the definition of the offence and hence the Crown must establish that the parties were not married. Moreover, there will be usually be official, State involvement in the processes leading to the creation of all of these types of relationship and once the issue has been raised, it should be relatively straightforward for the Crown to discover whether there is any basis for the accused claiming such a relationship. For these reasons we proposed that the accused should bear an evidential, but not a legal burden of establishing this defence.

On the whole consultees agreed with these proposals. However, there was some disagreement with the suggestion that there should be different rules on burden of proof for the defences. We have reconsidered this whole matter and have reached the conclusion that each of the two proposed defences should impose on the accused an evidential, but not a legal, burden of proof.

The accused should bear an evidential, but not a legal, burden of establishing the defences set out in recommendations 31 and 33 and elsewhere in this Report.

Proximity of age defence

We have earlier recommended that the offences which deal with consenting sexual activity with a child aged between 13 and 16 should not apply when both parties are in that age band. However, the situation may easily arise where two children under 16 have sexual contact with each other and the older one turns 16. The consequence would be that what has started as a sexual relationship which is not criminal becomes one which imposes criminal liability on one of the parties. We regard this outcome as undesirable especially if the relationship involves only lesser types of sexual touching, such as holding hands or kissing. To avoid this possibility we see merit in providing a proximity of age defence to the person who may face criminal prosecution. This defence would be that the accused at the time of the act was less than 2 years older than the child. We also recommend that the age difference should be calculated in terms of the age of the parties as of their last birthday.

We would stress the limits to this defence. It does not apply to offences where there is no consent to sexual activity, including offences against children under the age of 13. Nor does it apply to an offence involving penile penetration of a child aged between 13 and 16. We propose this limitation because, although we accept the need to prevent convictions for some forms of consenting sexual activity between someone under 16 and someone older, there are social policy objectives in seeking to restrict intercourse involving penile penetration. These include the possibility of pregnancy in the case of vaginal intercourse, and, in respect of all forms of penile penetration, the increased risk of sexually transmitted diseases which does not arise in other forms of sexual conduct. Furthermore, the defence will not be available where the parties wrongly believe that they are within the specified gap in their ages.

However we can identify a particular problem in applying any provision that allows for a defence defined in terms of a gap in the parties' respective ages as calculated by age at birthdays. This involves the fluctuation in the gap as each reaches his or her next birthday. Take the example of a defence which permits a proximity of 2 years in the ages of the parties. A is 16; his girlfriend B is 14. The defence applies. But if A's birthday falls before B's the defence would fly off because when A turns 17 the age gap becomes 3 years until B's 15^th birthday and then the defence would apply again. We have therefore included a recommendation to the effect that if A (when aged 16 or over) had had sexual contact with B whilst the gap in their ages was 2 years, the defence should continue to apply.

We recommend that:

There should be a defence to an offence involving sexual activity with an older child that the accused was less than 2 years older than the child or had at some time earlier engaged in such activity and at that time was less than 2 years older than the child.

But this defence does not apply to an offence involving penile penetration of an older child.

(Draft Bill, section 27(2), (3))

Problems with proof of age

We have identified a problem in respect of protective offences against children which may not arise frequently in practice but for which some provision is needed. There are two different sets of offences, one in relation to children under the age of 13, the other in relation to children aged between 13 and 16. What would happen in a trial where the Crown can prove that a child was under the age of 16 at the time of the actings in question but cannot prove whether at that time the child was below 13 or was 13 (or older)? This scenario could arise, for example, because there is some doubt about the actual date of those actings but the child's 13^th birthday fell within the permitted latitude as to date. Where the problem was recognised in advance of the trial the Crown could indict on alternative charges but the matter might arise only as evidence is being led at the trial itself.

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Furthermore, if someone is charged with an offence against a young child and the only matter preventing a finding of guilt is a failure to prove that the child was under 13 at the relevant time, provided that the Crown can prove that the child was under 16, the accused should be liable to be convicted of the corresponding offence against older children.

We recommend that:

Where a charge has been brought of a protective offence against a child, and the Crown can establish that at the time of the offence the child was under the age of 16 but cannot establish the child's actual age, then:

(a) if the charge is of an offence against an older child, the child will be deemed to have been 13 at that time; and

(b) if the charge is of an offence against a young child, the accused will be liable to be convicted of a corresponding offence against an older child.

(Draft Bill, section 28)

Offences concerning indecent conduct

The offence of lewd, indecent or libidinous practice and behaviour prohibits certain forms of indecent conduct used toward children. At common law the offence applies to conduct committed against children under the age of puberty (12 for girls and 14 for boys). In the case of girls, but not boys, statute has extended the scope of the offence to the age of 16.

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Webster v Dominick

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"In the modern law, where indecent conduct is directed against a specific victim who is within the class of persons whom the law protects, the crime is that of lewd, indecent and libidinous practices. It may be committed by indecent physical contact with the victim, but it need not. It may be committed by the taking of indecent photographs of the victim (eg HM Advocate v Millbank [2002 SLT 1116]); or by indecent exposure to the victim (Lockwood v Walker [1910 SC(J) 3]); or by the showing of indecent photographs or videos to the victim; or by other forms of indecent conduct carried out in the presence of the victim. It may be committed, in my opinion, by means of a lewd conversation with the victim, whether face to face or by a telephone call or through an internet chat-room. In each case, the essence of the offence is the tendency of the conduct to corrupt the innocence of the complainer."

In the Discussion Paper we pointed to several problems about the offence of lewd, indecent or libidinous conduct. The nature of the offence is inherently vague, especially in its current form of 'conduct which tends to corrupt the innocence of the victim'. Moreover the examples given by the Court in Webster v Dominick tend to overlap with other offences (indecent exposure; nuisance telephone calls), some of which are not, and in principle should not, be limited to cases of child victims. The same points can also be made in respect to homosexual acts of 'gross indecency' committed against boys under 16.

In our view a preferable approach would be to replace a broad offence of indecent behaviour towards children with more specific offences.

We take the view that the vast majority of types of conduct which are currently labelled as lewd, indecent or libidinous behaviour would be covered by the recommendations made in this Report. Examples are sexual assault; indecent exposure; sexual touching with children under 16; sexual activity with a child in breach of trust; performing a sexual act in front of a child. Other types would be included in more general offences applicable to adults and children (for example, nuisance phone calls;

The crime of lewd, indecent or libidinous practice and behaviour towards children should be abolished.

(Draft Bill, section 40(a))

B. Persons with mental disorder

The challenge in making provision for sexual activity with people with mental disorder is to recognise the rights of those persons to engage in sexual activity and promote their sexual autonomy as far as possible. This aim must be balanced with the need to protect vulnerable persons from sexual exploitation and to recognise that in certain situations mental disorder may act as a barrier to meaningful understanding of, and valid consent to, sexual activity. The difficulties which this balancing involves have been widely recognised.

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In Scotland, these issues were most recently explored in the comprehensive review of the law on mental disorder by the Millan Committee,

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Section 311 of the 2003 Act makes two notable innovations to the existing law on sexual offences. The first is the introduction of a definition of consent which is more detailed than that used in the common law:

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"(3) For the purposes of subsection (1)(a) above, a person shall be regarded as not consenting if the person purports to consent as a result of -

(a) being placed in such a state of fear; or

(b) being subjected to any such -

(i) threat;

(ii) intimidation;

(iii) deceit; or

(iv) persuasion,

as vitiates that person's consent."

The second is a statutory test of being incapable of consenting to a sexual act by reason of mental disorder:

^[107]

"(4) For the purposes of subsection (1)(b) above, a person is incapable of consenting to an act if the person is unable to -

(a) understand what the act is;

(b) form a decision as to whether to engage in the act (or as to whether the act should take place); or

(c) communicate any such decision."

In the Discussion Paper we stated that the recommendations of the Millan Committee were made against the background of the existing law on sexual offences, including the definition of consent used in that law. The Committee noted the problems which were encountered when the existing general law covering sexual offences was applied in cases where a person has a mental disorder:

^[108]

"The fundamental problem is that most sexual offences concerning adults can only be established if a lack of consent by the victim can be proved. Where a person is severely mentally impaired, it may be difficult to establish such a lack of consent."

"The problem is not simply one of possible incapacity to consent, but also one of vulnerability. It may well be possible for a man to coerce a woman with learning disabilities into having a sexual relationship without having to use threats of a degree which would be sufficient to sustain a rape charge."

Indeed, the Committee also noted that if the definition of consent in sexual offences generally were to be re-defined as something similar to 'free agreement' the need for specific offences in respect of people with mental disorders could be avoided.

^[109]

In the Discussion Paper we suggested that if our own proposed model of consent were to be made law there would be no need for the provisions of section 311 of the 2003 Act. Our view was that everything which those measures state is included in our more general proposals. And, as we have already noted, the Millan Committee itself made the recommendations for a specific offence in relation to persons with a mental disorder because of inadequacies with the general law on rape and sexual assaults.

There was general agreement among consultees with this proposal, although one body argued that there was value in having provisions on consent to sexual activity in the statute which sets out the law relating to people with mental disorders. We have now reached the view that our original proposal was too sweeping. We consider that it would be confusing if the law used one definition of consent to sexual activity for general application and a different definition where the person in question has a mental disorder. We therefore recommend that the part of section 311 of the 2003 Act which defines consent should be repealed without replacement as the issues it deals with are covered by the consent model which we have considered in Part 2. However, we take the view that there is value in having a provision on the capacity of someone with a mental disorder to give consent. Clearly where a person lacks such a capacity then any sexual activity is done without his or her consent. In such a situation there is no need to apply the consent model. The fact that someone has a mental disorder does not mean that he or she necessarily or always lacks the capacity to give consent. Much depends on the nature of the disorder at the relevant time. We are therefore in favour of restating the 2003 Act provisions which define the capacity of a mentally disordered person to consent to sexual activity.

We therefore propose that:

Section 311 of the Mental Health (Care and Treatment) (Scotland) Act 2003 should be repealed.

(Draft Bill, section 44(2); schedule 4)

There should be a definition of the capacity of a person with a mental disorder to consent to sexual activity.

(Draft Bill, section 13)

An offence against sexual exploitation of people with mental disorder?

In the Discussion Paper we noted that there may be a gap in the protection of people who have a mental disorder. This situation may arise where the sexual activity is consensual but is exploitative in a way that does not involve a breach of trust.

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"A person who engages in sexual activity with, or procures for sexual activity, a person with such mental disorder as to be unable to guard against sexual exploitation and who -

(b) takes advantage of that person's disorder in order to engage in, or procure that person for, the activity

is guilty of the offence of sexual exploitation of a person with a mental disorder."

In the Discussion Paper we accepted that there could be an advantage in having a specific offence which protects persons with a mental disorder from exploitation. At the same time we were concerned whether such an offence could be drafted with sufficient precision. The version in the Draft Criminal Code uses the expressions 'unable to guard against sexual exploitation' and 'take advantage of', which might be thought to be too vague. Nor is it clear what defences there should be to such an offence. The Draft Criminal Code makes it a requirement of liability that the person engaging in the exploitation knew, or was reckless as to whether, the other person had a mental disorder of a type which made him unable to guard against sexual exploitation. The Code also proposes that marriage should be a defence to a charge under this provision but it is not clear why a relationship such as marriage should bar criminal liability for sexual activity based on exploitation of the victim.

The approach of English law is that offences in respect of persons with a mental disorder parallel the protective offences relating to children over 13.

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In the Discussion Paper we did not reach a concluded view on this issue. We asked whether in addition to offences based on abuse of trust (which we consider next), there should be a separate offence of taking advantage of the condition of a person with a mental disorder which prevents that person from guarding against sexual exploitation. Although consultees expressed general support for an offence of this nature, we are not recommending that such an offence should be introduced. We are of the view that there are considerable difficulties in identifying the precise mischief that the offence is to remedy. Where a person with a mental disorder is subject to threats or deceptions, the offences based on lack of consent, including attempts to commit those offences, will provide protection. Moreover if the criminal law were to intervene where a person with a mental disorder receives inducements to have sex, which result or may result in that person consenting to sex, the outcome would be diminish the sexual autonomy of people with mental disorders.

C. Persons in positions of trust

There are a number of statutory provisions which make it an offence for a person to have sexual contact with another person over whom he or she is in a position of trust.

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First, section 3 of the Criminal Law (Consolidation) (Scotland) Act 1995 states that a person over 16 who has sexual intercourse with a person under that age is guilty of an offence if he is a member of the same household as the child and is in a position of trust or authority in relation to that child.

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"It will exclude casual visitors, babysitters and the like who are not members of the household, and the word 'household' will not extend to institutions such as residential schools or children's homes."

Defences to a charge under section 3 are that the accused (i) believed on reasonable grounds that the other person was 16 or older; (ii) did not consent to have sexual intercourse; or (iii) was married to the other person.

Secondly, section 3 of the Sexual Offences (Amendment) Act 2000 created an offence for a person of 18 or over to have sexual intercourse

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(a) Where the accused looks after persons under 18 who are detained in an institution by virtue of an order of a court or under an enactment.

(b) Where the accused looks after persons under 18 who are resident in a home in which accommodation is provided by an authority under section 26(1) of the Children (Scotland) Act 1995.

(c) Where the accused looks after persons under 18 who are accommodated and cared for in various types of institution (including a hospital, a care or nursing home, a community home or residential establishment).

(d) Where the accused looks after persons under 18 who are receiving full-time education at an educational establishment.

Defences to a charge under section 3 of the 2000 Act are that the accused did not know and could not reasonably have known that the other person was under 18 or was a person over whom he held a position of trust; and that he was married to the person under 18 or was in a civil partnership with that person.

Thirdly, section 313 of the Mental Health (Care and Treatment) (Scotland) Act 2003 provides that it is an offence for a person to have sexual intercourse (whether vaginal or anal) or to engage in any other sexual act with a mentally disordered person where he or she is providing care services in respect of that other person.

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The initial question to be asked about these provisions is whether they are necessary. We are not at this point concerned with criticism of substantive details of the existing provisions. Rather, we are considering a question of principle, and in particular whether these provisions add anything to what is already contained in other provisions, either existing or proposed in this Report. For example, section 3 of the 1995 Act makes it an offence to have sexual intercourse with a child under 16 where there was a position of trust between parties in the same household but under the existing law sexual intercourse (or sodomy) with a child under 16 is in any case criminal.

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For these reasons we proposed in the Discussion Paper that as matter of general principle offences of this nature should, subject to appropriate amendment, be retained. Consultees expressed a virtually unanimous agreement with this proposal. Accordingly, we recommend that:

There should be offences which impose criminal liability on a person who has sexual activity with another person over whom he or she holds a position of trust.

(Draft Bill, sections 30-35)

We now consider the types of situation where this offence should apply.

(1) Abuse of trust in family settings

We deal first with abuse of trust within a family setting. Many people may find themselves in a highly vulnerable position in relation to other people who live in the same household. An obvious case is that of children in respect of parents and other adults. We note that section 3 of the 1995 Act is not restricted to cases where the parties are related to each other. The approach is wider and the provision applies to all persons who share the same household. In the Discussion Paper we stated that there is scope for expanding this provision to cover sexual abuse within any type of family unit. We have already recommended that there should be specific offences dealing with sexual activity where there is no consent by the victim,

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Age of the parties

Section 3 of the 1995 Act is confined to cases where the victim is under the age of 16. As there are other offences which criminalise sexual activity with children below that age, there is little scope for application of this provision. We note below that for other existing offences which protect young persons who are in a relationship of trust, the relevant ages are that the offender must be 18 or older and the victim under that age. In the Discussion Paper we asked whether the age of 16 for the victim should be raised. Most consultees agreed with raising the age and many suggested that the age should be 18, which as we have noted is the age used in other abuse of trust offences. A further matter, which we did not consider in the Discussion Paper, is the EU Council Framework Decision of 22 December 2003 on combating the sexual exploitation of children and child pornography.

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Definition of relationship of trust

In the Discussion Paper we set out what we saw as two key elements of the proposed offence, namely that the parties share the same household; and that there was at the relevant time a position of trust between them. In its 1981 Report this Commission stated that these elements are essentially factual matters, and they are not defined in section 3 of the 1995 Act.

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Most consultees supported the proposal about the definition of a relationship of trust in a family setting. However, we now take the view that the definition should be restricted to the two situations which we considered. It is not at all clear when, in the absence of these situations, there could be a position of trust between two people who share the same household. It is also undesirable in principle that a person may be liable to criminal prosecution and conviction for having sex with someone else when it might not be obvious that there was a relationship of trust between them. The holding or exercising of parental rights and responsibilities may in some cases end where the child reaches the age of 16. However, in the light of our view on the appropriate age for the parties covered by this offence, we also recommend that a relationship of trust should continue where parental rights had existed in the past.

Types of prohibited conduct

At present, section 3 of the 1995 Act prohibits only (heterosexual) sexual intercourse between the parties, but not other types of sexual activity. There is no obvious rationale for limiting protective offences in breach of trust cases in this way. In the Discussion Paper we proposed that the new offence should extend to all types of sexual conduct, both heterosexual and homosexual. No dissent was expressed by consultees on this point.

We recommend that:

26 It should be an offence for a person aged 18 or older to engage in sexual activity with another person aged under 18 where:

(a) the parties live in the same household; and

(b) there was a relationship of trust between the parties.

(Draft Bill, section 31(1), (6))

27 There is a relationship of trust between two people who live in the same household where:

(a) one person has or exercises parental responsibilities and rights in respect of the other person; or

(b) one person has in the past had or exercised parental responsibilities in respect of the other person; or

(c) one person is treating the other person as a child of his family.

(Draft Bill, section 31(6))

Defences

Section 3 of the 1995 Act provides for three defences. One of them is a mistake as to the victim's age. We consider that provided that there are reasonable grounds for such a belief that it should continue to be a defence. A second defence is that the accused did not consent to the sexual intercourse with the person (a girl) under 16. In this scenario the girl may have a committed an offence and this result would certainly follow if our recommendations in Part 3 on coercing sexual conduct were to be implemented. It should therefore be considered highly doubtful if the Crown would ever prosecute the victim of such an offence for a breach of trust offence. In any event the defence of coercion may be open to such an accused person.

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The final defence in section 3 is that the parties were married. It is not entirely clear why marriage should be a defence where the wrong consists of sexual activity occurring as a result of breach of trust. It is worth noting that this Commission in recommending the introduction of a breach of trust offence did not examine the marriage defence specifically in relation to that offence but appeared to deal with marriage solely as a defence to incest.

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In the Discussion Paper we asked whether a marriage defence should apply for the proposed family setting breach of trust offences. Consultees were about evenly split in their responses. On reconsidering this issue we take the view that it is highly unlikely that there could be a relationship of trust in this sense between married people and we would view any such defence as unnecessary.

We also consider that there should be a defence that the accused did not know that there was a relationship of trust with the other party provided that there were reasonable grounds for such a belief. This defence broadly parallels that of mistake as to the other party's age.

We recommend that:

28 It should be a defence to a charge of abuse of trust between persons sharing the same household that the accused reasonably believed (i) that the other person was 18 or older or (ii) that he was not in a relationship of trust with that person.

(Draft Bill, section 33(1))

29 But it should not be a defence that the accused was married to that person or that the parties were in a sexual relationship prior to the relationship of trust between them.

(Draft Bill, section 33(2),(3))

(2) Breach of trust involving persons with a mental disorder

A further example of breach of trust provisions in the existing law is to be found in section 313 of the Mental Health (Care and Treatment) (Scotland) Act 2003. This provision makes it a criminal offence for persons providing care services to have sexual contact in certain circumstances with a person who has a mental disorder. As we noted earlier, although this provision does not use the expression abuse of trust that concept is clearly at its core. In the Discussion Paper we proposed that section 313 should be repealed but that similar provisions should be included within a broader offence of sexual abuse of trust. There was general agreement with this proposal among consultees. However, although we continue to believe that section 313 should be replaced by a provision which is explicitly based on the notion of abuse of trust, we now recommend that there should be a specific offence in relation to people with mental disorders. Our reasons are that there are issues in respect of protecting people with mental disorder which do not arise in other cases of abuse of trust (such as a limit on the ages of the parties). Furthermore we consider that it would be of value for people who provide and receive care services if there is provision which deals specifically with their situation. Whilst our recommended provision repeats much of what is to be found in section 313, we have proposed alterations to the definition of the prohibited sexual activity.

We recommend that:

Section 313 of the Mental Health (Care and Treatment) (Scotland) Act 2003 should be repealed.

(Draft Bill, section 44(2); schedule 4)

It should be an offence for a person to engage in a sexual activity with a mentally disordered person where he or she (a) is providing care services to the mentally disordered person or (b) works in, or is a manager of, a hospital where the mentally disordered person is being given medical treatment.

(Draft Bill, section 34)

Defences

Section 313 of the 2003 Act provide for a defence that the parties were married to, or in a civil partnership with, each other. Earlier we argued that in the context of abuse of trust in a family unit there should not be a defence of this nature. In that situation there were doubts whether there could be a position of trust between spouse or civil partners. However, in the present context, the existence of a position of trust is defined by the specific role, namely a carer, which may well arise where the parties are married or are civil partners. In these circumstances, it is not obvious that where the parties are married or in a civil partnership and are also in this type of relationship of trust, sexual activity should necessarily be seen as involving a breach of trust.

It is also a defence under the 2003 Act that the person in a relationship of trust with someone with a mental disorder did not know, on reasonable grounds, that the other person was mentally disordered.

30 It should be a defence to the offence of sexual abuse of a person with a mental disorder that:

(a) the person providing the care service did not know, on reasonable grounds, that the other person was mentally disordered;

(b) the person providing the care service did not know, on reasonable grounds, that there was a relationship of trust with the other person;

(c) the parties were married to, or in a civil partnership with, each other at the time of the sexual activity;

(d) a sexual relationship existed between the parties at the time when the relationship of trust between them was constituted.

(Draft Bill, section 35)

(3) Breach of trust in other settings

We now consider breach of trust offences which do not involve persons living in the same family unit or persons with a mental disorder. Under the existing law these offences are to be found in sections 3 and 4 of the Sexual Offences (Amendment) Act 2000 which make it an offence for a person of 18 or older to engage in sexual activity with a person under 18 where there is a position of trust between them. Position of trust is defined as arising in four specific situations.

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In the Discussion Paper we stated that we accepted the general principles of these offences. There was virtually unanimous agreement with this view among consultees. At the same time we indicated that we had some reservations on points of detail. A key component to the offence in the 2000 Act is that the offence applies only where the party committing the offence is older than 18 and the other party is below that age. The question is whether there should be a cut-off age for the offence. The intention of the 2000 Act was clearly to protect young persons but some people might think that a 24 year-old student is just as vulnerable to pressures from a lecturer as a 17 year-old student. We were inclined to the view that the offence should be restricted to protection of vulnerable young persons but sought comments on whether it should be extended to protect persons older than 18 or to persons of any age. Consultees expressed various opinions on this issue; some wanted no age limit at all, some argued for the age to be lowered to 16, and others called for no change to the present law. We have decided that the age should remain at 18. No clear principle was advanced for changing or removing the age limit. In any case lowering the age to an age below 18 would be incompatible with the requirements of the EU Council Framework Decision of 22 December 2003 on combating the sexual exploitation of children and child pornography.

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We recommend that:

31 It should be an offence for a person aged 18 or older to engage in sexual activity with another person where:

(a) the person was in a position of trust in relation to that other person; and

(b) that other person was under the age of 18.

(Draft Bill, section 30)

In the Discussion Paper we also noted that the 2000 Act had attracted critical comment of the way in which a position of trust is defined.

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"(a) the person is the teacher, instructor or religious adviser of that other;

(b) the person provides care services to that other professionally or on behalf of a voluntary organisation;

(c) the person is actively engaged in the management of, works in, or is contracted to provide services to—

(i) a hospital where that other is being given treatment; or

(ii) an establishment where that other lives."

We asked whether this definition should be adopted for the offences under consideration. Most consultees thought that it should. However, on further reflection we have decided that the current method of defining a relationship of trust should be retained. We were concerned that a definition in general terms might impose criminal liability too widely, which would be undesirable in relation to consenting sexual activity between people over the age of 16. Moreover, one of the difficulties with the present definition is that some of the terms which it uses are out-of-date or inappropriate in a Scottish setting. We have therefore recommended changes to the interpretation to be given to some of the expressions used in defining a position of trust.

^[139]

We have also recommended some changes of substance. The 2000 Act confines the protective offence in an educational setting to students in full-time education only. We can see no obvious rationale for this restriction and we consider that the offence should also apply to protect students who are receiving part-time education. Another proposed change is in respect of the requirement that the older person 'looks after' the younger person. Under the existing law this expression applies where the older person is regularly involved in caring for, training, supervising, or being in sole charge of persons under 18 generally. We consider that this provision is far too wide in its scope, and could lead to some highly questionable results.

^[140]

We recommend that:

32 A position of trust should be restricted to the situations set out in section 4 of the Sexual Offences (Amendment) Act 2000 but:

(a) a position of trust can arise in relation to a person receiving part-time education; and

(b) one person looks after another person where he or she regularly cares for, trains, supervises or is in sole charge of that other person.

(Draft Bill, section 31)

The 2000 Act sets out three defences to the abuse of trust offences.

^[141]

We therefore recommend that:

It should be a defence to an offence of sexual abuse of trust in recommendation 49 that:

(a) the accused reasonably believed that the complainer was 18 or older;

(b) the accused reasonably believed that there was no relationship of trust with the complainer;

(c) that the accused was married to, or in a civil partnership with, the complainer;

(d) that a sexual relationship existed between the accused and the complainer at the time when the relationship of trust between them was constituted.

(Draft Bill, section 33(1),(2),(4))

Immunity for counselling

An issue which attracted some attention during the passage of what became the Sexual Offences Act 2003 in England was the position of persons who gave sexual advice or counselling or who supplied contraceptives to children under the age of 16. Concern was expressed that a person who acted in one of these ways might be liable for an offence of aiding and abetting (or in Scotland being art and part in), or inciting the commission of, an offence involving sexual activity with a child. The possibility of such liability conflicted with the social goals of promoting sex education and of reducing the level of teenage pregnancies. The 2003 Act deals with this situation by granting an immunity from criminal liability where a person acts for the purpose of:

^[142]

(a) protecting the child from sexually transmitted infection;

(b) protecting the physical safety of the child;

(c) preventing the child from becoming pregnant; or

(d) promoting the child's well-being by the giving of advice.

This immunity extends to a wide range of offences under the Act but not to any offence which is committed against a person who is 16 or over. It does not apply where the purpose of the person is to obtain sexual gratification or to cause or encourage the commission of the offence. It appears that the onus of proof on the accused in claiming the immunity is merely an evidential, rather than a legal, burden.

^[143]

In the Discussion Paper we argued that a similar defence should apply in Scots law. But we also saw no reason for excluding from its scope offences involving sexual activity with young persons aged 16 or over.

^[144]

(1) There should be an exclusion from liability for incitement or art and part involvement in any offence concerning sexual activity with a child or young person for persons providing counselling, support or treatment on matters of sexual health.

(2) The exclusion from liability does not apply where the person acts with the purpose of:

(a) obtaining sexual gratification;

(b) humiliating, distressing or alarming the child or young person; or

(c) causing or encouraging the commission of an offence.

(Draft Bill, section 39)

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Note 1   Criminal Law (Consolidation) (Scotland) Act 1995, s 5(1).    [Back]

Note 2   Criminal Law (Consolidation) (Scotland) Act 1995, s 5(3).     [Back]

Note 3   Mental Health (Care and Treatment) (Scotland) Act 2003, s 313.    [Back]

Note 4   Sexual Offences (Amendment) Act 2000, s 3.    [Back]

Note 5   Para 1.27.    [Back]

Note 6   Criminal Law (Consolidation) (Scotland) Act, 1995, s 5(1).    [Back]

Note 7   1995 Act, s 5(3), (5).    [Back]

Note 8   Alison (I, 566) states that where the party on whom sodomy is committed is under 14 years of age only the actual agent is guilty of the offence. However, Gordon (vol II, p 519, n 3) comments that there is "no authority or ground" for Alison's view.    [Back]

Note 9   See for example HM Advocate v Millbank 2002 SLT 1116 (forcing victim to handle penis; touching victim's hair with penis); Sinder v HM Advocate 2003 SCCR 271 (placing hands under the clothing of a child); HM Advocate v JT 2005 1 JC 86 (touching and photographing the private parts of a child); Sneddon v HM Advocate 2005 SLT 651 (inducing children to remove clothes and taking photographs).     [Back]

Note 10   See Gordon, vol II, p 530.    [Back]

Note 11   Webster v Dominick 2005 1 JC 65. See further at paras 4.83-4.87.    [Back]

Note 12   Criminal Law (Consolidation) (Scotland) Act 1995, s 5(1).    [Back]

Note 13   1995 Act, s 5(3).     [Back]

Note 14   1995 Act, s 5(5).    [Back]

Note 15   1995 Act, s 6.    [Back]

Note 16   1995 Act, s 13(5) (as amended by the Sexual Offences (Amendment) Act 2000, s 1(3)).     [Back]

Note 17   1995 Act, s 1.    [Back]

Note 18   1995 Act, s 2.    [Back]

Note 19   This practice could only be charged as a form of lewd, indecent or libidinous conduct. It is not an offence in itself for a woman to have (consensual) sexual intercourse with a boy aged 14 or older.     [Back]

Note 20   Para 1.29.     [Back]

Note 21   Setting the Boundaries, para 3.3.6.    [Back]

Note 22   Two consultees raised the point about that problems may arise if both parties are under the defined age. We consider this matter at para 4.58.    [Back]

Note 23   The defences which are considered later in respect of older children include mistake of the accused as to the child's age; and marriage or civil partnership between the accused and the child. See paras 4.59-4.78.    [Back]

Note 24   See paras 4.83-4.87.    [Back]

Note 25   Section 111(3). By contrast, the Code limits the defence of marriage (which applies to consensual sexual activity) to persons aged 13 or older (s 74).    [Back]

Note 26   Criminal Law (Consolidation) (Scotland) Act 1995, s 5(1).    [Back]

Note 27   Sexual Offences Act 2003, s 5 (rape of a child under 13); s 6 (assault of a child under 13 by penetration); s 7 (sexual assault of a child under 13); s 8 (causing or inciting a child under 13 to engage in sexual activity).    [Back]

Note 28   Report on Age of Criminal Responsibility (Scot Law Com No 185 (2002)), para 3.20. The Draft Criminal Code takes a different approach. There the age of criminal responsibility operates not as an immunity from prosecution but as an absence of criminal capacity, though the proposed age is also 12 (s 15).    [Back]

Note 29   For example, a consultee who expressed a preference for the age of 12 may have in mind a child aged 12 but who was not yet aged 13. Our intention in framing the question in terms of the ages of 12 and 13 was to draw a distinction between respectively a child who had not yet attained the age of 12 and a child who had not yet attained the age of 13.     [Back]

Note 30   For example, Criminal Law (Consolidation) (Scotland) Act 1995, s 5(1).    [Back]

Note 31   Sexual Offences Act 2003, ss 5-8.    [Back]

Note 32   For example, ss 5-8.     [Back]

Note 33   See Setting the Boundaries, para 3.5.11: "we are not proposing statutory rape. The presumption of no consent below 13 applies to the 'consensual ' offences of adult sexual abuse of a child, persistent sexual abuse of a child and sexual activity between minors. Rape and sexual assault by penetration are in essence offences where lack of consent has to be proved. We hope however that courts will find our arguments useful in considering the issues of consent in cases involving the rape of children."    [Back]

Note 34   See note to s 5(1) of the 1995 Act in Current Law Statutes Annotated, which cites C v HM Advocate 1987 SCCR 104.    [Back]

Note 35   Accordingly strict liability offences are not to be equated with 'no defence' offences (sometime called offences of absolute liability). What is strict about these offences is that they do not require mens rea as to some key element of the offence itself but more general defences, such as insanity or automatism, would still be available.     [Back]

Note 36   Common law crimes do not involve strict liability. In principle the common law requirement of mens rea would mean that where a man is charged with the rape of a girl under 12, he would have a defence that he believed that the girl was over 12 and was consenting. This issue is discussed by Gordon (vol II, p 514) who concludes that "the court would doubtless have scant sympathy with the accused and might well hold that mens rea as to age was unnecessary."    [Back]

Note 37   B (A Minor) v DPP [2000] 2 AC 428. In this case, the accused was charged with the offence of inciting a girl under the age of 14 to commit an act of gross indecency with him (contrary to s 1(1) of the Indecency with Children Act 1960). The victim was 13. It was held that the prosecution had to prove the absence of genuine belief on the part of the accused that the victim was 14 or over.     [Back]

Note 38   See paras 4.60-4.64.    [Back]

Note 39   Salabiaku v France (1988) 13 EHRR 379    [Back]

Note 40   [2006] 1 WLR 2052.    [Back]

Note 41   Leave to appeal was subsequently granted by the House of Lords.    [Back]

Note 42   In Scotland the approach taken in the vast majority of cases where a child under 16 is alleged to have committed a crime is to refer the child to a children's hearing rather than bring a prosecution. See paras 4.52-4.58.    [Back]

Note 43   See paras 4.65-4.70.    [Back]

Note 44   Marriage (Scotland) Act 1977, s 1(2). Indeed a person whose domicile is Scottish cannot marry anywhere if under the age of 16 (1977 Act, s 1(1)).    [Back]

Note 45   A E Anton (with P R Beaumont), Private International Law (2nd edn, 1990), pp 436-439.    [Back]

Note 46   Henry Watson (1885) 5 Couper 696; Abinet v Fleck (1894) 2 SLT 30; R v Chapman [1959] 1 QB 100.    [Back]

Note 47   This approach is taken in the Draft Criminal Code: "No offence under this Part of this Act is committed if the two persons involved in any consensual sexual activity which would otherwise constitute the offence or an element of the offence were married to each other at the time and were both aged 13 years or more" (s 74).    [Back]

Note 48   Para 4.66.    [Back]

Note 49   K Wellings et al, Sexual Behaviour in Britain: The National Survey of Sexual Attitudes and Lifestyles (1994); J Tripp and R Viner "ABC of Adolescence: Sexual Health, Contraception, and Teenage Pregnancy" (2005) Vol 330 No 7491 British Medical Journal 590-593; E Burtney, Evidence into action: teenage sexuality in Scotland (2000), HEBS.     [Back]

Note 50   Para 1.28.    [Back]

Note 51   Setting the Boundaries, para 3.6.1.    [Back]

Note 52   It could be possible to have offences involving sexual activity with a child under 16 but to remove criminal liability for any child who commits the offence. We consider that issue at paras 4.52-4.57.    [Back]

Note 53   See paras 4.126-4.134.    [Back]

Note 54   Other examples are the regulation of child prostitution and child pornography; health strategies in relation to sex education and teenage pregnancies.    [Back]

Note 55   It should also be remembered that a wide model of consent applies in the rest of the United Kingdom along with offences prohibiting sexual activity with children under 16. It should be noted that in Setting the Boundaries the Home Office Review Group stated that fixing the age of consent at 16 was a fundamental principle and not open for discussion. Although the Group's recommendations on sex involving children under 16, and their enactment in the Sexual Offences Act 2003, have attracted strong criticism, as far as we can tell no commentator has argued that the age of consent in English law should be lowered.    [Back]

Note 56   Paras 4.52-4.57.    [Back]

Note 57   We accepted that there is an oddity about the notion of someone being compelled to do something with his consent. At the same time we took the view that the protective principle should apply where the actions of a person have the effect of leading a child to perform a sexual act. It may be that the language of compelling or coercing activity is inappropriate in this situation but we regarded this as mainly a matter of statutory drafting.    [Back]

Note 58   Such problems do not exist where only one of the parties is a child under 16, and the offence is defined in terms of having sex 'with a child' below that age. In this situation, no criminal liability would attach to the child.    [Back]

Note 59   J R Spencer, "The Sexual Offences Act 2003: (2) Child and Family Offences" [2004] Crim L Rev 347, at 354.    [Back]

Note 60   These figures are based on data on referrals to children's hearings and on prosecution for the years 1997- 2000 (Report on Age of Criminal Responsibility (Scot Law Com No 185 (2002)), para 3.10). Table 7 of Appendix D to the Report sets out data on the number of children proceeded against in the criminal courts from 1994 to 1999. The total number of children prosecuted over that period was 1,165, and of these the vast majority were aged 14 (143) or 15 (967). The number of children prosecuted for sexual assault was 18, for lewd, indecent or libidinous conduct 5, and for 'other indecency' 8.    [Back]

Note 61   These bodies included Childline Scotland, Brook, and the Scottish Children's Reporter Administration.    [Back]

Note 62   This view was stated in the response to the Discussion Paper submitted by the Scottish Children's Reporter Administration who point out that "as the law currently stands, Reporters are unable to treat a child's sexual behaviour towards another child as him/her being 'exposed to moral danger'."    [Back]

Note 63   Constanda v M 1997 SC 217. Unlike the other grounds of referral this ground requires the same level of proof as that in a criminal trial, including the requirement of corroboration.    [Back]

Note 64   The solution is partial because it would apply only where both children were under 13. Where for example a 15 year-old boy has sex with a 12 year-old girl, the girl could be referred to a hearing under the new ground we have proposed but the ground of referral for the boy would have to be the 'criminal' ground.    [Back]

Note 65   In our project on age of criminal responsibility we recommended that no person under the age of 12 should be the subject of criminal prosecution (Report on Age of Criminal Responsibility (Scot Law Com No 185 (2002), para 3.20). Implementation of this recommendation would narrow the scope of but not remove the problem.    [Back]

Note 66   Paras 4.32-4.42; recommendations 26 and 27.    [Back]

Note 67   Criminal Law (Consolidation) (Scotland) Act 1995, ss 5(3) and 5(5).    [Back]

Note 68   For example, Sexual Offences Act 2003, ss 9(1)(c); 10(1)(c); 11(1)(d).    [Back]

Note 69   Criminal Law (Consolidation) (Scotland) Act 1995, ss 5(5)(b); 13(8).    [Back]

Note 70   The meaning of the phrase 'previously charged' is not clear. Gordon (vol II, p 529) suggests that in practice "a man may not be regarded as having been 'previously charged' with an offence unless he has previously stood trial for it."    [Back]

Note 71   Setting the Boundaries, paras 3.6.9. The offence of having sexual intercourse with a girl between 13 and 16 was introduced by section 5 of the Criminal Law Amendment Act 1885. The defence contained in the 1885 Act was that the accused had reasonable grounds for believing that the girl was 16 or older. The restriction of the defence to an accused aged 23 or younger (and also that he had not been previously charged with a like offence) was introduced by section 2 of the Criminal Law Amendment Act 1922.     [Back]

Note 72   Criminal Procedure (Scotland) Act 1995, s 266.     [Back]

Note 73   Criminal Law (Consolidation) (Scotland) Act 1995, s 5(3).    [Back]

Note 74   Henry Watson (1885) 5 Couper 696; Abinet v Fleck (1894) 2 SLT 30; R v Chapman [1959] 1 QB 100.    [Back]

Note 75   1995 Act, s 5(5)(a).    [Back]

Note 76   Sexual Offences Act 2003, ss 23; 28.    [Back]

Note 77   Civil Partnership Act 2004, Sch 27, paras 173-175.    [Back]

Note 78   One commentator on the lack of the marriage defence in the 2003 Act has noted that "a husband who gives his 15-year-old wife lawfully married abroad a sexual kiss commits an offence under s 9." (Richard Card, Sexual Offences: The New Law (Revised Edition) (2004), p 75.)     [Back]

Note 79   Civil Partnership Act 2004, Part 3.    [Back]

Note 80   2004 Act, s 217.    [Back]

Note 81   We repeat here the point that this defence would not apply to protective offences where the child is under 13 years of age.    [Back]

Note 82   See K Norrie, "Reproductive technology, transsexualism and homosexuality: new problems for international private law" (1994) 43 ICLQ 757.    [Back]

Note 83   A party who bears a legal burden of proof is said to run the risk of non-persuasion in that if the appropriate standard required to prove the existence of any particular fact (ie 'beyond reasonable doubt' or 'on a balance of probabilities') is not met, that party will lose on that issue. By contrast, where a party bears only an evidential burden he or she must adduce enough evidence on a particular issue to entitle the court to treat the issue as one that it must consider. In a criminal trial where the accused has the legal burden of proving a defence the appropriate standard of proof is the balance of probabilities. It should be noted that an evidential burden can be discharged even though the party concerned has not provided sufficient evidence to satisfy either of the standards of proof.     [Back]

Note 84   Sheldrake v DPP; Attorney-General's Reference (No 4 of 2002) [2005] 1 AC 264.    [Back]

Note 85   Indeed we have reached the same conclusion in respect of all the defences which we recommend as part of this project.     [Back]

Note 86   See R v Lambert [2002] 2 AC 545: "If the evidential burden were to be so slight as to make no difference - if it were to be enough, for example, for the accused merely to mention the defence without adducing any evidence - important practical considerations would suggest that in the interest of the community the burden would have to be a persuasive one. But an evidential burden is not to be thought of as a burden which is illusory. What the accused must do is put evidence before the court which, if believed, could be taken by a reasonable jury to support his defence." (Lord Hope of Craighead at para 90.)    [Back]

Note 87   In one of the leading cases, Sheldrake v DPP; Attorney-General's Reference (No 4 of 2002) [2005] 1 AC 264, the House of Lords formulated two key principles: (a) whether a particular legal burden imposed on an accused person is Convention compatible depends to a very high degree on the specific facts and circumstances of the relevant legislation; (2) the court has to perform a delicate balancing act between upholding the principle of the presumption of innocence and the decision of Parliament to override that principle in pursuit of a clear statutory policy. In respect of this second point the House said that: "all that can be said is that for a reverse burden of proof to be acceptable there must be a compelling reason why it is fair and reasonable to deny the accused person the protection normally guaranteed to everyone by the presumption of innocence." (At para 302.)    [Back]

Note 88   In reaching this view we have taken account of the effect of article 7 of the ECHR, which prohibits the imposition of a heavier penalty than the one that was applicable when the offence was committed. If the law were to presume that, in cases of doubt as to age, the victim was under 13 then the offender would be liable to a higher maximum sentence than if the presumption operates as we recommend. In our view, this would open up a good argument that the accused's rights under article 7 were breached.     [Back]

Note 89   Under the Criminal Law (Consolidation) (Scotland) Act 1995, s 13, there is an offence of homosexual gross indecency in respect of boys under 16. We later recommend the repeal of this provision. See paras 5.5-5.10.    [Back]

Note 90   2005 1 JC 65. The leading opinion was given by Lord Justice Clerk Gill.    [Back]

Note 91   Para 49.    [Back]

Note 92   We later recommend that the statutory offence of gross indecency between males should be abolished (see paras 5.5-5.10).    [Back]

Note 93   See paras 3.23-3.47.    [Back]

Note 94   See paras 3.48-3.63.    [Back]

Note 95   See paras 4.22-4.25; 4.43-4.51.    [Back]

Note 96   Communications Act 2003, s 127.     [Back]

Note 97   Protection from Harassment Act 1997, s 8.     [Back]

Note 98   Civic Government (Scotland) Act 1982, s 51(1).     [Back]

Note 99   Ibid, ss 52 and 52A.     [Back]

Note 100   Most recently in the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005.    [Back]

Note 101   Section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995 extends this common law crime to include indecent behaviour towards girls aged between 12 and 16. We also recommend that this provision should be repealed (see Draft Bill, section 44(2); schedule 4).    [Back]

Note 102   "The law must balance between two competing interests – protecting people with impaired mental functioning from sexual exploitation, and giving maximum recognition to their sexual rights. The difficulty for the legal system in striking an appropriate balance between these interests is compounded by the considerable diversity of people with mental impairment in terms of extent of impairment, living circumstances, and sexual interest and knowledge." (Law Reform Commission of Victoria, Sexual Offences Against People with Impaired Mental Functioning (Report No 15 (1988)), p 3.) This passage was quoted in the Australian Model Criminal Code, para 5.2.28; and in Setting the Boundaries, para 4.1.3.    [Back]

Note 103   New Directions: Report on the Review of the Mental Health (Scotland) Act 1984 by a Committee chaired by the Rt Hon Bruce Millan (SE/2001/56).    [Back]

Note 104   The Act came into force in October 2005.    [Back]

Note 105   'Mental disorder' is defined in s 328 of the Act as "any (a) mental illness (b) personality disorder or (c) learning disability, however caused or manifested."    [Back]

Note 106   2003 Act, s 311(3).     [Back]

Note 107   Section 311(4).     [Back]

Note 108   Report of the Millan Committee, paras 21.22 and 21.25.    [Back]

Note 109   "An alternative approach to the special offences discussed above would be to redefine consent generally in relation to sexual behaviour to something closer to 'free agreement'. This approach could avoid the need for special offences to protect people with mental disorders, by bringing abuse of this group within the definition of generally applicable crimes such as rape." (Ibid, para 21.55.)    [Back]

Note 110   We consider offences involving breach of trust in relation to people with a mental disorder at paras 4.121-4.125.    [Back]

Note 111   Section 69(1)(b).    [Back]

Note 112   Sexual Offences Act 2003, ss 9-12 and ss 30-33.    [Back]

Note 113   In the Discussion Paper we referred to positions of trust and authority. Here we use the shorter and more accurate expression 'position of trust'.    [Back]

Note 114   Section 3 of the 1995 Act is derived from s 2C of the Sexual Offences (Scotland) Act 1976 (added by Incest and Related Offences (Scotland) Act 1986, s 1, which was based on the recommendations of this Commission). See Report on The Law of Incest in Scotland (Scot Law Com No 69 (1981)), para 4.36.     [Back]

Note 115   Social Work (Scotland) 1968, s 32(2)(e),(f) (now Children (Scotland) Act 1995, s 52(2)(e)-(f)). See McGregor v Haswell 1983 SLT 626 where the expression is described as: "a family unit or something akin to a family unit - a group of persons, held together by a particular kind of tie who normally live together" and A v Kennedy 1993 SC 131 where the court held that a person may be a member of a household even though not physically present. See also Criminal Procedure (Scotland) Act 1975, ss 168, 364 (now Criminal Procedure (Scotland) Act 1995, s 48).     [Back]

Note 116   Report on The Law of Incest in Scotland (Scot Law Com No 69 (1981)), para 4.33.    [Back]

Note 117   Under this provision sexual intercourse includes both vaginal and anal intercourse.    [Back]

Note 118   The Scottish Ministers have power by order to add further situations to this list (s 4(1) and s 7(2)).    [Back]

Note 119   Carer is defined as a person who provides care services to the mentally disordered person or a person who works in, or is a manager of, a hospital where the mentally disordered person is being given medical treatment.    [Back]

Note 120   Section 3 does not overlap with other existing offences in respect of sexual intercourse by a woman with a boy under 16 but our earlier proposals would make such intercourse an offence in itself.     [Back]

Note 121   Scot Law Com No 69 (1981), para 4.31.    [Back]

Note 122   See Draft Criminal Code, s 7 (aggravated offences); s 65 (unlawful sexual activity with a young person); s 69 (sexual exploitation of person with a mental disorder).    [Back]

Note 123   See Part 3.     [Back]

Note 124   Paras 4.43-4.51.    [Back]

Note 125   See for example HM Advocate v RK 1994 SCCR 499, a case involving sexual intercourse between a man and a girl who had been his foster daughter for some years. However, as the intercourse occurred when the girl was 16, the predecessor version of s 3 of the 1995 Act did not apply. A charge of shameless indecency was brought against the man. As noted earlier (para 4.83) there is now no such offence.    [Back]

Note 126   2004/68/JHA.    [Back]

Note 127   The Commission stated that: "We would not attempt to give an exhaustive or comprehensive definition of the words 'trust or authority'; rather we would prefer that these words be given their ordinary meaning and that it be left to the court to decide as a matter of fact whether the relationship between the accused and the child can properly be described as being one of authority or trust." (Scot Law Com No 69 (1981), para 4.34.)    [Back]

Note 128   We will be examining the defence of coercion in our project on provocation and other defences. This project forms part of our Seventh Programme of Law Reform. See Scot Law Com No 198 (2005), paras 2.46-2.50.    [Back]

Note 129    Report on The Law of Incest in Scotland (Scot Law Com No 69 (1981)), para 4.44.    [Back]

Note 130   For similar reasons we see no scope for a defence, which applies in other abuse of trust cases, that the parties were in a sexual relationship prior to the relationship of trust coming into being.     [Back]

Note 131   Mental Health (Care and Treatment) (Scotland) Act 2003, s 313(3)(a)(i).    [Back]

Note 132   Ibid, s 313(3)(b). A similar defence appears in the Draft Criminal Code, s 69(3): "no offence is committed under subsection (1)(a) by the mere continuation of a consensual sexual relationship which existed immediately before the requirements of that provision were satisfied."    [Back]

Note 133   Setting the Boundaries, para 4.8.17.    [Back]

Note 134   The situations are (a) where a person looks after people under 18 who are detained in an institution by virtue of an order of a court or under an enactment; (b) where a person looks after people under 18 who are resident in a home in which accommodation is provided by an authority under s 26(1) of the Children (Scotland) Act 1995; (c) where a person looks after people under 18 who are accommodated and cared for in various types of institution (including a hospital, a care or nursing home, a community home or residential establishment); (d) where a person looks after people under 18 who are receiving full time education at an educational institution (2000 Act, s 4).    [Back]

Note 135   2004/68/JHA. See para 4.111.    [Back]

Note 136   J R Spencer, "The Sexual Offences Act 2003: (2) Child and Family Offences" [2004] Crim LR 347 at 355.     [Back]

Note 137   In the Draft Criminal Code a position of trust is part of the definition of various offences, including unlawful sexual activity with a person under the age of 18 (section 65) and sexual exploitation of a person with a mental disorder (section 69).    [Back]

Note 138   Section 112(2).    [Back]

Note 139   These are contained in section 32 of the Draft Bill.    [Back]

Note 140   It would have the effect of creating a relationship of trust, for example, between a lecturer in a law school in one campus of a university and a student of medicine based in another campus even though there was no professional contact between the two.     [Back]

Note 141   Section 3(2).    [Back]

Note 142   Section 73.    [Back]

Note 143   Card, Sexual Offences: The New Law (Revised Edition) (2004), p 17.    [Back]

Note 144   We have recommended that the abuse of trust provisions (other than those involving people with a mental disorder) should apply to persons under the age of 18. See paras 4.115; 4.128.    [Back]

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You are here: BAILII >> Databases >> Scottish Law Commission >> Scottish Law Commission (Reports) >> Report on Rape and Other Sexual Offences [2007] SLC 209(4) (Report) (19 December 2007) URL: http://www.bailii.org/scot/other/SLC/Report/2007/209(4).html Cite as: [2007] SLC 209(4) (Report)