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Sexual Offences (Scotland) Bill [AS PASSED]

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Sexual Offences (Scotland) Bill [AS PASSED] Sexual Offences (Scotland) Bill [AS PASSED] CONTENTS Section PART 1 RAPE ETC. Rape 1 Rape Sexual assault by penetration 1A Sexual assault by penetration Sexual assault and other sexual offences 2 Sexual assault 3 Sexual coercion 4 Coercing a person into being present during a sexual activity 5 Coercing a person into looking at a sexual image 6 Communicating indecently etc. 7 Sexual exposure 7A Voyeurism 7B Interpretation of section 7A 8 Administering a substance for sexual purposes PART 2 CONSENT AND REASONABLE BELIEF Consent 9 Meaning of “consent” and related expressions 10 Circumstances in which conduct takes place without free agreement 10A Consent: capacity while asleep or unconscious 11 Consent: scope and withdrawal Reasonable belief 12 Reasonable belief PART 3 MENTALLY DISORDERED PERSONS Mentally disordered persons 13 Capacity to consent SP Bill 11B Session 3 (2009) ii Sexual Offences (Scotland) Bill PART 4 CHILDREN Young children 14 Rape of a young child 14A Sexual assault on a young child by penetration 15 Sexual assault on a young child 16 Causing a young child to participate in a sexual activity 17 Causing a young child to be present during a sexual activity 18 Causing a young child to look at a sexual image 19 Communicating indecently with a young child etc. 19A Sexual exposure to a young child 19B Voyeurism towards a young child 20 Belief that child had attained the age of 13 years Older children 21 Having intercourse with an older child 21A Engaging in penetrative sexual activity with or towards an older child 22 Engaging in sexual activity with or towards an older child 23 Causing an older child to participate in a sexual activity 24 Causing an older child to be present during a sexual activity 25 Causing an older child to look at a sexual image 26 Communicating indecently with an older child etc. 26A Sexual exposure to an older child 26B Voyeurism towards an older child 27 Older children engaging in sexual conduct with each other 28 Penetration and consent for the purposes of section 27 29 Defences in relation to offences against older children General 30 Special provision as regards failure to establish whether child has or has not attained certain ages 30A Special provision as regards age: deeming provisions PART 5 ABUSE OF POSITION OF TRUST Children 31 Sexual abuse of trust 32 Positions of trust 33 Interpretation of section 32 34 Sexual abuse of trust: defences Mentally disordered persons 35 Sexual abuse of trust of a mentally disordered person 36 Sexual abuse of trust of a mentally disordered person: defences Sexual Offences (Scotland) Bill iii PART 6 PENALTIES Penalties 37 Penalties PART 7 MISCELLANEOUS AND GENERAL Miscellaneous 37A Establishment of purpose for the purposes of sections 4 to 7A, 17 to 19B and 24 to 26B 38 Power to convict for offence other than that charged 39 Exceptions to inciting or being involved art and part in offences under Part 4 or 5 40 Common law offences 41 Continuity of law on sexual offences 42 Incitement to commit certain sexual acts outside the United Kingdom 43 Offences committed outside the United Kingdom 44 Continuity of law on sexual offences committed outside the United Kingdom General provisions 44A Offences by bodies corporate etc. 45 Ancillary provision 46 Orders 47 Interpretation 48 Modification of enactments 49 Short title and commencement __________ Schedule 1Z—Relevant sexual offences Part 1—Offences that may currently be committed Part 2—Offences replaced by an offence in Part 1 or this Part Schedule 1 —Penalties Schedule 2 —Alternative verdicts Schedule 3 —Listed offences Part 1 —Incitement to commit certain sexual acts outside UK Part 2 —Offences committed outside UK Schedule 4 —Minor and consequential amendments Schedule 5 —Repeals Sexual Offences (Scotland) Bill 1 Part 1—Rape etc. Amendments to the Bill since the previous version are indicated by sidelining in the right margin. Wherever possible, provisions that were in the Bill as introduced retain the original numbering. Sexual Offences (Scotland) Bill [AS PASSED] An Act of the Scottish Parliament to make new provision about sexual offences, and for connected purposes. PART 1 RAPE ETC. 5 Rape 1 Rape (1) If a person (“A”), with A’s penis— (a) without another person (“B”) consenting, and (b) without any reasonable belief that B consents, 10 penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B then A commits an offence, to be known as the offence of rape. (2) For the purposes of this section, penetration is a continuing act from entry until withdrawal of the penis; but this subsection is subject to subsection (3). 15 (3) In a case where penetration is initially consented to but at some point of time the consent is withdrawn, subsection (2) is to be construed as if the reference in it to a continuing act from entry were a reference to a continuing act from that point of time. (4) In this Act— “penis” includes a surgically constructed penis if it forms part of A, having been 20 created in the course of surgical treatment, and “vagina” includes— (a) the vulva, and (b) a surgically constructed vagina (together with any surgically constructed vulva), if it forms part of B, having been created in the course of such 25 treatment. SP Bill 11B Session 3 (2009) 2 Sexual Offences (Scotland) Bill Part 1—Rape etc. Sexual assault by penetration 1A Sexual assault by penetration (1) If a person (“A”), with any part of A’s body or anything else— (a) without another person (“B”) consenting, and 5 (b) without any reasonable belief that B consents, penetrates sexually to any extent, either intending to do so or reckless as to whether there is penetration, the vagina or anus of B then A commits an offence, to be known as the offence of sexual assault by penetration. (2) For the purposes of this section, penetration is a continuing act from entry to withdrawal 10 of whatever is intruded; but this subsection is subject to subsection (3). (3) In a case where penetration is initially consented to but at some point of time the consent is withdrawn, subsection (2) is to be construed as if the reference in it to a continuing act from entry were a reference to a continuing act from that point of time. (4) Without prejudice to the generality of subsection (1), the reference in that subsection to 15 penetration with any part of A’s body is to be construed as including a reference to penetration with A’s penis. Sexual assault and other sexual offences 2 Sexual assault (1) If a person (“A”)— 20 (a) without another person (“B”) consenting, and (b) without any reasonable belief that B consents, does any of the things mentioned in subsection (2), then A commits an offence, to be known as the offence of sexual assault. (2) Those things are, that A— 25 (a) penetrates sexually, by any means and to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B, (b) intentionally or recklessly touches B sexually, (c) engages in any other form of sexual activity in which A, intentionally or recklessly, has physical contact (whether bodily contact or contact by means of an 30 implement and whether or not through clothing) with B, (d) intentionally or recklessly ejaculates semen onto B, (e) intentionally or recklessly emits urine or saliva onto B sexually. (4) For the purposes of paragraph (a) of subsection (2), penetration is a continuing act from entry until withdrawal of whatever is intruded; but this subsection is subject to 35 subsection (5). (5) In a case where penetration is initially consented to but at some point of time the consent is withdrawn, subsection (4) is to be construed as if the reference in it to a continuing act from entry were a reference to a continuing act from that point of time. Sexual Offences (Scotland) Bill 3 Part 1—Rape etc. (6) Without prejudice to the generality of paragraph (a) of subsection (2), the reference in the paragraph to penetration by any means is to be construed as including a reference to penetration with A’s penis. 3 Sexual coercion 5 If a person (“A”)— (a) without another person (“B”) consenting to participate in a sexual activity, and (b) without any reasonable belief that B consents to participating in that activity, intentionally causes B to participate in that activity, then A commits an offence, to be known as the offence of sexual coercion. 10 4 Coercing a person into being present during a sexual activity (1) If a person (“A”)— (a) without another person (“B”) consenting, and (b) without any reasonable belief that B consents, either intentionally engages in a sexual activity and for a purpose mentioned in 15 subsection (2) does so in the presence of B or intentionally and for a purpose mentioned in that subsection causes B to be present while a third person engages in such an activity, then A commits an offence, to be known as the offence of coercing a person into being present during a sexual activity. (2) The purposes are— 20 (a) obtaining sexual gratification, (b) humiliating, distressing or alarming B. (4) Without prejudice to the generality of subsection (1), the reference in that subsection— (a) to A engaging in a sexual activity in the presence of B, includes a reference to A engaging in it in a place in which A can be observed by B other than by B looking 25 at an image, and (b) to B being present while a third person engages in such an activity, includes a reference to B being in a place from which the third person can be so observed by B.
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