Sex and the Law

If consent is not given, then anyone subjecting another person to any form of indecent behaviour is committing a crime. It is a criminal offence to touch or threaten a person in an indecent way (including groping or unwanted fondling). This is called indecent assault.

The Sexual Offences (Scotland) Act 2009 was implemented 1st December 2010 and replaced a mixture of common law and statutory provision by putting Scots Law on sexual offences into a single Act. The Act broadens the definition of rape to include anal and oral rape of women and men, as well as vaginal rape. Rape is defined as penetration of someone’s vagina, anus or mouth (to however small an extent) by a penis without consent or reasonable belief in consent.

The Act defines consent as a free agreement and makes it clear that consent can be withdrawn at any time. The Act also sets out an offence of sexual assault by penetration, which covers, for example, penetration by objects, and which is equivalent in seriousness to rape.

The Act also creates specific offences in relation to the rape and sexual assault of children and makes it clear that anyone under the age of 13 is considered unable to consent to sexual activity.

The Act applies to all offences from 1st December 2010 – offences committed prior to this date will be covered by the previous legislation and/or common law.

Going out with someone, being married to them, or if they have agreed to sex before, are not an excuse. There is no free invitation to have sexual intercourse with someone. If someone does not freely consent and is forced to have sex then it’s rape.