The Scottish Parliament passed the Sexual Offences (Scotland) 2009 Bill on 10 June 2009 with 121 votes to 0, with one abstention. Article: http://news.scotsman.com/scotland/MSPs-back-landmark-reform-of.5355024.jp Typically, a bill that passes Stage 3 becomes a formal law about a month after it is passed. The sections which raised the most debate throughout the process were the ones regarding children and teenagers, but as this does not affect the Consenting ADULT Action Network, we shall not report on it. The law also expands the sort of sexual activities that can be considered non-consensual. While the CONSENTING Adult Action Network is against non-consensual activity, the definition of consent and how this definition is applied is of interest. The law uses gender-neutral language, states that a person consent is not valid if the person is intoxicated, and that a person cannot give consent whilst asleep or unconscious. The law does not address sadomasochism.
Praise Given for Gender-neutral Language
During the debate (http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-09/sor0610-02.htm#Col18165), praise was made for the gender-neutral language that allows for men to be raped, though no MSP praised the fact that transgendered people can also now be raped under this law. Prior to this law, only women could be raped.
Alcohol, Prior Consent, and Sleep Sex
Questions were raised, however, as to the new amendment stating that someone who is intoxicated cannot give consent. Liberal Democrat Robert Brown (Glasgow) objected to this, questioning, “First, is it the intention that sexual intercourse, including sexual contact and touching, when one party is drunk and incapable, will be a criminal offence in all circumstances whatever? That seems to be the effect of amendment 1. Secondly, will juries find it easier to convict on the basis of incapacity than on the basis of lack of consent? No definition of incapacity is given.” The example Brown gave was of a couple celebrating a wedding anniversary and one of them getting drunk. It is notable
Also during the debate, Green Party MSP Patrick Harvie (Glasgow) questioned if the amendment on intoxication would also apply to the sections covering sexual communication. While MSP Kenny MacAskill at first ignored this question, he responded to Harvie’s repetition stating that he did not see how sending a dirty text to someone who was comatose would be important and that the amendment is meant to target sexual activity, not communication. MacAskill did not address Harvie’s question regarding recording, which was obviously a nod to the extreme pornography legislation.
The incapacity by intoxication amendment was linked to the incapacity while asleep section by MSP Margaret Curran. “As I understand it, the Crown will still have to prove that free consent is not there. What my amendment does is disallow a defence of prior consent.” The notion of “prior consent” is also applicable to the section on being asleep. The law states that “A person is incapable, while asleep or unconscious, of consenting to any conduct.” Previously, the debate was on the notion of “prior consent”, with people supporting this section arguing that a person cannot withdraw consent at any time while asleep, and thus should be banned.
However, arguments were put forth (as documented in Stage 2 here: http://www.scottish.parliament.uk/business/research/briefings-09/SB09-39.pdf) that ignoring prior consent puts the law at odds with current medical consent law. A person can consent in advance to certain procedures to be preformed upon them while they are unconscious. While it may still be fuzzy, the law appears to state that someone is unable to give consent while asleep, but provided consent was given whilst the other conditions are met, it is not unreasonable to assume that sexual activity while asleep is legal. This section may be similar to the warning on hairdryers: Do not use while sleeping. But you can tell someone else to use it while you are sleeping. Emphasis appears to be on “reasonable belief”, and assuming that the police and prosecution will not waste time on matters without a complaintent. This, of course, remains to be seen.
Minster for Community Safety Fergus Ewing stated: “Although the new section provides that consent cannot be given in such circumstances, it does not exclude the possibility of a reasonable belief in consent, nor does it place any specific restrictions on how such a reasonable belief may arise. In practice, it will be for the court to decide whether any claim of reasonable belief in consent on the part of the accused is credible in cases in which such circumstances arise.” Earlier drafts of the bill had being asleep or unconscious right underneath intoxication (note the missing line (b) below). By separating it out, it allows for a separate interpretation, and is an improvement opening the door for quite a few fetishes and role-plays.
The Silence on Sadomasochism
Sadomasochism was not mentioned during the debates as this had been roundly rejected in Stage 2 (http://www.scottish.parliament.uk/s3/committees/justice/or-09/ju09-1102.htm#Col1675). Sadomasochism is still illegal in Scotland. That said, there is no reason not to pay attention to the government’s definitions of consent and to consider if they should apply to BDSM, and if they did, what that would be like.
Actual Text of the Law Regarding Consent
CONSENT AND REASONABLE BELIEF
9 Meaning of “consent” and related expressions
In Parts 1 and 3, “consent” means free agreement (and related expressions are to be construed accordingly).
10 Circumstances in which conduct takes place without free agreement
(1) For the purposes of section 9, but without prejudice to the generality of that section, free agreement to conduct is absent in the circumstances set out in subsection (2).
(2) Those circumstances are—
(a) where the conduct occurs at a time when B is incapable because of the effect of alcohol or any other substance of consenting to it,
(c) where B agrees or submits to the conduct because of violence used against B or any other person, or because of threats of violence made against B or any other person,
(d) where B agrees or submits to the conduct because B is unlawfully detained by A,
(e) where B agrees or submits to the conduct because B is mistaken, as a result of deception by A, as to the nature or purpose of the conduct,
(f) where B agrees or submits to the conduct because A induces B to agree or submit to the conduct by impersonating a person known personally to B, or
(g) where the only expression or indication of agreement to the conduct is from a person other than B.
(3) References in this section to A and to B are to be construed in accordance with sections
1 to 7A.
10A Consent: capacity while asleep or unconscious
(1) This section applies in relation to sections 1 to 7A.
(2) A person is incapable, while asleep or unconscious, of consenting to any conduct.
11 Consent: scope and withdrawal
(1) This section applies in relation to sections 1 to 7A.
(2) Consent to conduct does not of itself imply consent to any other conduct.
(3) Consent to conduct may be withdrawn at any time before, or in the case of continuing conduct, during, the conduct.
(4) If the conduct takes place, or continues to take place, after consent has been withdrawn, it takes place, or continues to take place, without consent.
12 Reasonable belief
In determining, for the purposes of Part 1, whether a person’s belief as to consent or knowledge was reasonable, regard is to be had to whether the person took any steps to ascertain whether there was consent or, as the case may be, knowledge; and if so, to what those steps were.