Publication - Factsheet

Scottish Crime Recording Standard: Crime Recording and Counting Rules

Published: 31 October 2023
From: Cabinet Secretary for Justice and Home Affairs, +1 more … Director of Safer Communities
Directorate: Justice Directorate, +1 more … Safer Communities Directorate
Topic: Law and order
ISBN: 9781805259022

Crime recording and counting rules for the Scottish Crime Recording Standard (SCRS). These are overseen, approved, maintained and developed by the Scottish Crime Recording Board (SCRB).

Supporting documents

Group 2 – Sexual Crimes

Introduction

Sexual Offences (Scotland) Act, 2009

The Sexual Offences (Scotland) Act, 2009 has come about as the result of widespread media and academic criticism of the current law in Scotland surrounding rape and other sexual offences, particularly the gender specific nature of the common law offence of rape.

The Bill was introduced to the Scottish Parliament on 17 June 2008, incorporating the majority of recommendations which had been made by the Scottish Law Commission. It was passed on 10 June 2009 and implemented on 1 December 2010.

The Act repeals a number of common law crimes including rape, clandestine injury to women and sodomy. It also creates a number of new statutory sexual offences. The Act provides a statutory description of consent, which is defined as ‘free agreement’ and provides a non-exhaustive list of factual circumstances during which consent will be deemed to be absent.

The Act creates a number of new ‘protective’ offences, which criminalise sexual activity with children and mentally disordered persons. Protective offences are placed into categories concerning young children (under 13) and older children (13-15).

There are offences of ‘abuse of position of trust’ for a person in such a position over a child or person with a mental disorder, to participate in sexual activity with that person. Whilst the Scottish Law Commission recognised that there are currently statutory offences in place, it recommended that they be consolidated into a single Act on sexual offences rather than continuing in the current rather piecemeal fashion. In doing this, it has also been possible to address inconsistencies with the current law.

Consent

The Act now provides that consent is to be defined as ‘free agreement’. The reason for this definition is that it captures those circumstances where consent may be given but because of violence or threat, consent in these circumstances would not be freely given.

In addition to this definition, the Act provides a non-exhaustive list of situations or ‘statutory indicators’ where consent or ‘free agreement’ will be deemed to be absent. It does not imply that there will be consent in those situations which are not listed.

If the prosecution provide that one of these factual situations apply then this will suffice to prove that consent was not given.

Circumstances in which conduct takes place without free agreement:

Where the conduct occurs at a time when B is incapable of consenting to it because of the effect of alcohol or any other substance.
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.
Where B agrees or submits to the conduct because B is unlawfully detained by A.
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.
Where B agrees or submits to the conduct because A induces B to agree to submit to the conduct by impersonating a person known personally to B.
Where the only expression or indication of agreement to the conduct is from a person other than B.
Where B is asleep or unconscious.

Section 15 of the Act also clarifies the position where consent is given then subsequently withdrawn. It states the following:-

Consent to conduct does not itself imply consent to any other conduct.
Consent to conduct may be withdrawn at any time before, or in the case of continuing conduct, during the conduct.
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.

Stealthing

Non-consensual condom removal, or "stealthing", is the practice of a man covertly removing or damaging a condom during sexual intercourse, when his sex partner has only consented to condom-protected sex. These reports should initially be recorded as Rape (Sexual Offences (Scotland) Act, 2009, S1) pending further enquiry.

Attempt at Crime - Criminal Procedure (Scotland) Act 1995, Section 294

The above means that any attempt to commit a crime under the 2009 Act is in itself a crime.

Compound Crimes

The Crown Office has advised that where conduct falls within that outlined within Sections 1, 2 and 3 of the Sexual Offences (Scotland) Act 2009 which relates to adults and, similarly Sections of the Act which refer to Older Children (Sections 28, 29 and 30) and Younger Children (Sections 18, 19 and 20), compound charges should be used. The Scottish Government have advised that in such cases only the most serious crime should be recorded/counted for statistical purposes. The modus operandi on a crime report must outline the full details of the conduct.

Interpretation

Section 60 of the Sexual Offences (Scotland) Act 2009 provides that:

For the purposes of this Act:

(a) penetration, touching, or any other activity,

(b) a communication,

(d) a relationship,

is sexual if a reasonable person would, in all the circumstances of the case, consider it to be sexual.

Incidents Involving Mixed Age Groups

Where a mixed age group is present in relation to,

Coercing/Causing a Person/Young Child/Older Child to Look at a Sexual Image
Causing a Person to See or Hear an Indecent Communication
Communicating Indecently

the offence relating to the lowest age group present only should be recorded, as this is the most serious.

Where a mixed age group is present in relation to,

Sexual Exposure
Voyeurism

if it cannot be evidenced that the conduct was directed towards a specific age group, then the offence relating to the lowest age group present should be recorded.

Counting Rules

Any offence, which has occurred prior to 1 December 2010 should be recorded in line with the appropriate legislation in place at that time. Should the conduct have occurred prior to and after 1 December 2010 the appropriate offence(s) under the old and new legislation must be recorded.

Acting for purposes of Sexual Gratification or to Humiliate, Alarm or Distress

There is no requirement to prove someone was in fact humiliated, distressed or alarmed or provide corroboration. If it can reasonably be inferred that the accused acted so as to obtain sexual gratification, or to humiliate, distress or alarm the person that is sufficient. Whether the person was in fact humiliated, distressed or alarmed is irrelevant.

Recording/Reporting of Rape

In circumstances where a victim reports a crime of Rape and there is insufficient evidence to corroborate penetration, but sufficient evidence to prove Attempted Rape or Assault with intent to Rape, then a crime of Rape should be recorded.

An SPR2 libelling a charge of Rape should be submitted to the Procurator Fiscal detailing the full circumstances for their consideration. The Rape crime report will be shown as detected in these circumstances. Whilst the accused may be charged with Attempted Rape or Assault with intent to Rape due to the evidence available, the "Remarks" section of the SPR should provide an explanation as to why the charge being libelled on the front page of the SPR is one of Rape. The following has been agreed by COPFS and must be added to the "Remarks" section of an SPR2 for cases where Rape is libelled but it is considered there is only a sufficiency of evidence to report Attempted Rape or Assault with intent to Rape:

'A charge of Rape has been libelled within this SPR2 to reflect the crime reported by the victim. The circumstances have been fully investigated and it is considered that, despite significant and sufficient evidence in respect of the other essential evidential elements there is insufficient evidence to prove penetration. On this occasion, the Accused has been charged with Attempted Rape/Assault with Intent to Rape (as appropriate).'

This will allow the Procurator Fiscal to fully consider the evidence presented and enable them to change the charge to that which they intend to proceed with, and thus preserve the victim orientated approach to crime recording required by SCRS.

Medical Updates/No Crime

Sexual Offences (Scotland) Act, 2009, Section 1 provides that “penetration to any extent” amounts to Rape and any subsequent medical update which is inconclusive as to whether penetration occurred is insufficient rationale to reclassify any recorded crime to ‘No Crime’.

Sexual Activity involving Children

Where parties involved in sexual activity are children (i.e. below the age of 16 years), whilst partner agency liaison may be the chosen route to address the behaviour, this does not negate the requirement to record the appropriate crime(s).

Persons Purporting to be Older/Younger

Where a young child/older child purports to be older/younger than they are, the appropriate Section of the Act should relate to the actual age of the child and not the age they purport to be.

Where someone purports to be a young/older child for the purpose of enticing someone to carry out sexual activity and the individual being enticed believes they are doing so with a young/older child, this is sufficient to record an attempt to commit the relevant offence with the appropriate Section being the age the person purports to be.

Offences committed outside the United Kingdom

Section 55(1) of Sexual Offences (Scotland) Act 2009 provides that if a UK national does an act in a country outside the United Kingdom which would, if it had been done in Scotland, constitute a "listed offence" then the UK national commits that offence.

Part 2 of Schedule 4 of Sexual Offences (Scotland) Act 2009 defines a "listed offence" as:

An offence under Part 1 of Sexual Offences (Scotland) Act 2009 against a person under the age of 18 (Sections 1 to 11)
An offence under Part 4 of Sexual Offences (Scotland) Act 2009 (Sections 18 to 26 committed against young children)
Sexual abuse of trust (Sexual Offences (Scotland) Act 2009, Section 42)
Sexual abuse of trust of a mentally disordered person (Sexual Offences (Scotland) Act 2009, Section 46) where the mentally disordered person is under the age of 18
Indecent assault of a person under the age of 18
An offence under Section 52 or 52A of Civic Government (Scotland) Act 1982
An offence under Sections 9 to 12 of Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005
Conspiracy or incitement to commit any offence specified above
An offence under Section 293(2) of Criminal Procedure (Scotland) Act 1995 (aiding and abetting the commission of a statutory offence) relating to any statutory offence specified above

In these circumstances a crime should be recorded and marked as being external to Police Scotland.

Legislation Effective Dates

The following table provides details of historic statutory sexual crimes and crimes at common law and the effective dates of the relevant legislation:

Act	Section	Applicable From	Applicable To
Criminal Law Amendment Act 1885 - intercourse girl under 13	S4	Passed 14/8/1885	14/12/1976
Criminal Law Amendment Act 1885 - intercourse with girl under 16	S5	Passed 14/8/1886	14/12/1976
Sexual Offences (Scotland) Act 1976 - intercourse with girl under 13	S3(1)	15/12/1976	30/03/1996
Sexual Offences (Scotland) Act 1976 - attempt intercourse with girl under 13	S3(2)	15/12/1976	30/03/1996
Sexual Offences (Scotland) Act 1976 - intercourse with girl 13-16	S4(1)	15/12/1976	30/03/1996
Criminal Law (Consolidation) (Scotland) Act 1995 - intercourse girl under 13	S5(1)	01/04/1996	30/11/2010
Criminal Law (Consolidation) (Scotland) Act 1995 - Attempt intercourse girl under 13	S5(2)	01/04/1996	30/11/2010
Criminal Law (Consolidation) (Scotland) Act 1995 - intercourse with girl 13-16	S5(3)	01/04/1996	30/11/2010
Sodomy	-	-	30/11/2010
Rape	-	-	30/11/2010
Criminal Law (Amendment) Act 1922 - lewd and lib girl between 12-16	S4	04/08/1922	14/12/1976
Sexual Offences (Scotland) Act 1976 - lewd and lib girl between 12 and 16	S5	15/12/1976	01/04/1996
Lewd, Indecent & Libidinous Practices & Behaviour - Boys under 14 and girls under 12 years of age	-	-	30/11/2010
Criminal Law (Consolidation) (Scotland) Act 1995 - Girl between 12 and 16	S6	01/04/1996	30/11/2010

Rules for Recording Non Recent Crimes

Where specific dates and/or loci are individually identified and can be evidenced, a separate crime report will be recorded for each occasion. If not, between dates will be recorded on a single crime report. If different crime types are identified and occur on a different date these should be recorded separately. Refer to compound crime rules under Group 2 for further information. If crimes are committed against a child they will be recorded in accordance with any age specific legislation relevant to the age of the child at given points during the time period specified

Examples

For the purpose of these examples all sexual crimes are assumed to have involved the same victim and perpetrator. Where different perpetrators are involved separate crimes will be recorded. If sexual crimes occur within a time period before and after the introduction of the Sexual Offences (Scotland) Act 2009 on 1 December 2010 both the common law crime (pre legislation) and statutory crime (post legislation) must be recorded subject to the rules above.

Where specific dates are known

Example 1

Victim reports being raped on six occasions at the same locus. Specific dates are known (all after 1 December 2010).

- 6 x Sexual Offences (Scotland) Act 2010, S1, Rape

Example 2

Victim reports being raped on six occasions and on three separate occasions had been subjected to sexual assaults, all at the same locus. Specific dates are known (all after 1 December 2010).

- 6 x Sexual Offences (Scotland) Act 2009, S1, Rape

- 3 x Sexual Offences (Scotland) Act 2009, S3, Sexual Assault

Example 3

Victim reports being raped on six occasions, all at the same locus. Dates of four of the rapes are not known but the victim can be specific about two of the dates (all after 1 December 2010).

- 3 x Sexual Offences (Scotland) Act 2009, S1, Rape (1 crime for between dates, 2 crimes for specific dates)

Different locations

Example 4

Victim reports being raped on six occasions at locus 1 and on three occasions at locus 2. Specific dates are not known (all after 1 December 2010).

- 2 x Sexual Offences (Scotland) Act 2009, S1, Rape (crime for each locus)

Example 5

Victim reports being raped on three occasions at locus 1 and on three occasions at locus 2. Specific dates are known for the rapes at locus 2 (all after 1 December 2010).

- 4 x Sexual Offences (Scotland) Act 2009, S1, Rape (1 crime for locus 1, 3 crimes for locus 2)

Occurring pre and post Sexual Offences (Scotland) Act 2009 (December 2010)

Example 6

Victim reports being raped on six occasions at the same locus. Specific dates are not known but the victim advises three of the rapes occurred prior to 1 December 2010.

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

- 1 x Rape (common law)

Various offences over a period of time

Example 7

Victim reports being assaulted on numerous occasions at locus 1, raped on two occasions and assaulted on numerous occasions at locus 2. During one of the assaults at locus 2 the victim sustained a broken arm which is confirmed by medical records. No rape occurred on this occasion. Other than the broken arm specific dates are not known (all after 1 December 2010).

- Locus 1 - 1 x Common Assault

- Locus 2 - 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

- Locus 2 - 1 x Serious Assault

- Locus 2 - 1 x Common Assault

Example 8

Victim reports being assaulted on numerous occasions at the same locus and sustained injuries from one of the assaults which amounted to Serious Assault although specific dates of these attacks are not known.

- 1 x Serious Assault

- 1 x Common Assault (different crime classifications

Example 9

Victim reports being raped on two occasions and on another occasion digitally penetrated, all at the same locus (all after 1 December 2010).

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

- 1 x Sexual Offences (Scotland) Act 2009, S2, Sexual Assault by Penetration

Example 10

Victim reports being assaulted on numerous occasions, and raped once over a period of time encompassing a date range both before and after 1 December 2010. All crimes occurred at the same locus but no specific dates are known.

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

- 1 x Common Assault

Single crime occurs during time period covered by different legislation

Example 11

Female reports being raped on a single occasion where she is unsure of the date but advises that it was sometime between 2009 and 2012. The victim turned 13 in November 2011.

Had this been a course of conduct where the victim was raped on several occasions between date one and date two we would have recorded:

January 2009 to 30 November 2010 - 1 x Common Law Rape
December 2010 to November 2011 (13th birthday) - 1 x Sexual Offences (Scotland) Act 2009, S18, Rape of Young Child
November 2011 to December 2012 – 1 x Sexual Offences (Scotland) Act 2009, S1 Rape

Given that the victim was raped only once, only one crime should be recorded. This should be based on the legislation/common law in place when "on the balance of probability" the crime is more likely to have occurred. If still unable to determine using the "balance of probability" record on the basis of the legislation/common law pertaining to the youngest age. In the example above if unable to determine a timeframe a Common Law Rape should be recorded.

Sexual Offences (Scotland) Act 2009 – Counting Rules

Crime Type

Rape/Having Intercourse with an Older Child

Relevant Section of Act

Section 1(1)

Section 18

Section 28

Description

Includes Male and Female

Covers penetration of Vagina, Anus and Mouth

S1) – Adult and Older Child (aged 13-15 years – where no consent)

S18 – Young Child (below 13 years) – irrelevant whether consent given

S28 – Older Child (aged 13-15 years) – if no consent S1 (1) will apply.

Counting Rule

One crime for each victim and where specific dates and/or loci are identified separate crimes to be recorded

Crime Type

Sexual Assault by Penetration

Relevant Section of Act

Section 2(1)

Section 19

Section 29

Description

Includes Male and Female

Covers penetration of Vagina and Anus

This will cover situations where the complainer knows they have been penetrated however they cannot say what penetrated them.

S2(1) – Adult and Older Child (aged 13-15 years - where no consent)

S19 – Young Child (below 13 years) – irrelevant whether consent given

S29 – Older Child (aged 13-15 years) – if no consent S2 will apply

Counting Rule

One crime for each victim and where specific dates and/or loci are identified separate crimes to be recorded

Crime Type

Sexual Assault

Relevant Section of Act

Section 3(1)

Section 20

Section 30

Description

Section 35

Description

Exposure of genitals, intentionally, in a sexual manner for obtaining sexual gratification; humiliating, distressing or alarming.

Can be committed in private.

Public Indecency remains. Where circumstances meet definition of Sexual Exposure, public indecency should not be recorded.

S8 – Adult

S25 – Young Child (below 13 years)

S35 – Older Child (aged 13-15 years)

Counting Rule

One Crime For Each Incident or Course Of Conduct

Crime Type

Voyeurism

Relevant Section of Act

Section 9

Section 26

Section 36

Description

Without consent, observes, operates equipment to observe, records with intention of looking at an image, installs equipment or constructs or adapts a structure or part of a structure to enable observation of a private act for the purpose of obtaining sexual gratification; humiliating, distressing or alarming.

S9 – Adult

S26 – Young Child (aged below 13 years)

S36 – Older Child (aged 13-15 years)

Counting Rule

One Crime For Each Incident or Course of Conduct

Crime Type

Administering a Substance for Sexual Purposes

Relevant Section of Act

Section 11

Description

Intentionally administers a substance to or causes a substance to be taken with purpose of stupefying or overpowering, to enable person to engage in a sexual activity.

Counting Rule

One Crime for Each Victim

Crime Type

Engaging while an Older Child in Sexual Conduct with or Towards Another Older Child

Relevant Section of Act

Section 37

Description

Older child (aged 13-15 years) who engages in sexual conduct with another Older Child and Older Child who has consented to sexual conduct with another Older Child (includes penetration and touching).

(If non-consensual – rape, sexual assault by penetration or sexual assault relevant).

Counting Rule

One Crime For Each Participant

Crime Type

Sexual Abuse of Trust (Children)

Relevant Section of Act

Section 42

Description

Person over 18 years, in a position of trust, intentionally engages in sexual activity with or directed towards person under 18 years.

Counting Rule

One Crime For Each Victim

Crime Type

Sexual Abuse of Trust of a Mentally Disordered Person

Relevant Section of Act

Section 46(1)

Description

Person, in a position of trust, intentionally engages in sexual activity with or directed towards mentally disordered person.

Counting Rule

One Crime For Each Victim

Crime Category - SGJD Code

Sexual Offences (Scotland) Act 2009

Section 1 – Rape - 14/001 to 14/004

Section 1 – Attempted Rape - 15/001 to 15/004

Section 18 – Rape of a Young Child - 14/005 to 14/006

Section 18 – Attempted Rape of a Young Child - 15/005 to 15/006

Section 28 – Having Intercourse with an Older Child - 16/025 to 16/026

Section 2 – Sexual Assault by Penetration - 16/001 to 16/004

Section 19 – Sexual Assault on a Young Child by Penetration - 16/015 to 16/016

Section 29 – Engaging in Penetrative Sexual Activity with or Towards an Older Child - 16/027 to 16/028

Section 3 – Sexual Assault - 16/005 to 16/008

Section 20 – Sexual Assault on a Young Child - 16/017 to 16/018

Section 30 – Engaging in Sexual Activity with or towards an Older Child - 16/029 to 16/030

Section 4 - Sexual Coercion - 16/009 to 16/012

Section 21 – Causing a Young Child to Participate in Sexual Activity - 16/019 to 16/020

Section 31 – Causing an Older Child to Participate in a Sexual Activity - 16/031 to 16/032

Section 5 – Causing a Person into being present during a Sexual Activity - 16/013

Section 22 – Causing a Young Child to be present during a Sexual Activity - 16/021

Section 32 – Causing an Older Child to be present during a Sexual Activity - 16/035

Section 6 – Coercing a Person into looking at a Sexual Image - 16/013

Section 23 – Causing a Young Child to look at a Sexual Image - 16/021

Section 33 – Causing an Older Child to look at a Sexual Image - 16/035

Section 7(1) – Communicating Indecently - 16/014

Section 24(1) – Communicating Indecently with a Young Child - 16/022

Section 34(1) – Communicating Indecently with an Older Child - 16/036

Section 7(2) – Causing a Person to see or hear an Indecent Communication - 16/014

Section 24(2) – Causing a Young Child to see or hear an Indecent Communication - 16/022

Section 34(2) – Causing an Older Child to see or hear an Indecent Communication - 16/036

Section 8 – Sexual Exposure - 17/003

Section 25 – Sexual Exposure to a Young Child - 16/023

Section 35 – Sexual Exposure to an Older Child - 16/037

Section 9 – Voyeurism - 17/004

Section 26 – Voyeurism towards a Young Child - 16/024

Section 36 – Voyeurism towards an Older Child - 16/038

Section 11 – Administering a substance for a Sexual Purpose - 18/023

Section 37 – Engaging while an Older Child in Sexual Conduct

With or towards another Older Child - 16/033 to 16/034

Section 42 – Sexual Abuse of Trust (Children) - 18/019

Section 46 – Sexual Abuse of Trust of a Mentally Disordered Person - 18/020

Other Sexual Crimes

Abusive Behaviour and Sexual Harm (Scotland) Act 2016, S2

Disclose or threaten to disclose intimate image or film - 16/039 to 16/040

Assault (Indecent) - 16/000

Bestiality - 18/021

Civic Government (Scotland) Act 1982, S46

Prostitution - 18/010

Civic Government (Scotland) Act 1982, S52

Indecent images of children - 18/018

Communications Act 2003, S127 (Sexual) - 16/041

Criminal Law (Consolidation) (Scotland) Act 1995, S1

Incest - 12/000

Criminal Law (Consolidation) (Scotland) Act 1995, S7

Procuration (excluding Homosexual Acts) - 18/001

Prostitution (Public Places) (Scotland) Act 2007, S1 - 18/017

Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005

Grooming of Children - 18/014

Public Indecency - 17/002

Repealed Sexual Crimes

(The following crimes were repealed as a result of the introduction of the Sexual Offences (Scotland) Act 2009 and accordingly will only be applicable for reported crimes occurring prior to 1 December 2010).

Assault with Intent to Rape/Attempted Rape - 15/000

Criminal Law (Consolidation) (Scotland) Act 1995, S3

Person with custody or care of girl or other causing her seduction - 18/008

Criminal Law (Consolidation) (Scotland) Act 1995, S5 (1)

Sexual Intercourse with girl under 13 - 18/002

Criminal Law (Consolidation) (Scotland) Act 1995, S5 (3)

Sexual Intercourse with girl under 16 - 18/003

Criminal Law (Consolidation) (Scotland) Act 1995, S6

Lewd, Indecent and Libidinous Practices - 18/022

Criminal Law (Consolidation) (Scotland) Act 1995, S13

Homosexual Acts (Illegal) - 13/001

Criminal Law (Consolidation) (Scotland) Act 1995, S13

Procuration of Homosexual Acts - 18/012

Lewd, Indecent and Libidinous Practices (Common Law) - 18/022

Rape (Common Law) - 14/000

Sodomy/Attempted Sodomy - 13/001

Crime Code Breakdown - Sexual Offences (Scotland) Act 2009

Description	Coding	Section of Act
Rape – Male (16+)	14/001	1
Rape – Female (16+)	14/002	1
Rape – Male (13-15)	14/003	1
Rape – Female (13-15)	14/004	1
Rape – Male (under 13)	14/005	18
Rape – Female (under 13)	14/006	18
Assault with intent to Rape – Male (16+)	15/001	1
Assault with intent to Rape – Female (16+)	15/002	1
Assault with intent to Rape – Male (13-15)	15/003	1
Assault with intent to Rape – Female (13-15)	15/004	1
Assault with intent to Rape – Male (under 13)	15/005	18
Assault with intent to Rape – Female (under 13)	15/006	18
Intercourse with Older Child – Male (13-15) (Consensual)	16/025	28
Intercourse with Older Child – Female (13-15) (Consensual)	16/026	28
Sexual Assault by Penetration – Male (16+)	16/001	2
Sexual Assault by Penetration – Female (16+)	16/002	2
Sexual Assault by Penetration – Male (13-15)	16/003	2
Sexual Assault by Penetration – Female (13-15)	16/004	2
Sexual Assault by Penetration – Male (under 13)	16/015	19
Sexual Assault by Penetration – Female (under 13)	16/016	19
Penetrative Sexual Activity – Male (13-15) (Consensual)	16/027	29
Penetrative Sexual Activity – Female 13-15) (Consensual)	16/028	29
Sexual Assault – Male (16+)	16/005	3
Sexual Assault – Female (16+)	16/006	3
Sexual Assault – Male (13-15)	16/007	3
Sexual Assault – Female (13-15)	16/008	3
Sexual Assault – Male (under 13)	16/017	20
Sexual Assault – Female (under 13)	16/018	20
Sexual Activity – Male (13-15) (Consensual)	16/029	30
Sexual Activity – Female (13-15) (Consensual)	16/030	30
Sexual Coercion – Male (16+)	16/009	4
Sexual Coercion – Female (16+)	16/010	4
Sexual Coercion – Male (13-15)	16/011	4
Sexual Coercion – Female (13-15)	16/012	4
Cause to Participate Sexual Activity – Male (under 13)	16/019	21
Cause to Participate Sexual Activity – Female (under 13)	16/020	21
Cause to Participate Sexual Activity – Male (13-15) (Consensual)	16/031	31
Cause to Participate Sexual Activity – Female (13-15) (Consensual)	16/032	31
Coerce into Being Present Sexual Activity – Male & Female (16+)	16/013	5
Coerce into Being Present Sexual Activity – Male & Female (13-15)	16/013	5
Cause to be Present Sexual Activity – Male & Female (under 13)	16/021	22
Cause to be Present Sexual Activity – Male & Female (13-15) (Consensual)	16/035	32
Coerce to Look at Sexual Image – Male & Female (16+)	16/013	6
Coerce to Look at Sexual Image – Male & Female (13-15)	16/013	6
Cause to Look at Sexual Image – Male & Female (under 13)	16/021	23
Cause to Look at Sexual Image – Male & Female (13-15) (Consensual)	16/035	33
Communicating Indecently – Male & Female (16+)	16/014	7(1)
Communicating Indecently – Male & Female (13-15)	16/014	7(1)
Communicating Indecently – Male & Female (under 13)	16/022	24(1)
Communicating Indecently – Male & Female (13-15) (Consensual)	16/036	34(1)
Cause See/Hear Indecent Communication – Male & Female (16+)	16/014	7(2)
Cause See/Hear Indecent Communication – Male & Female (13-15)	16/014	7(2)
Cause See/Hear Indecent Communication – Male & Female (under 13)	16/022	24(2)
Cause See/Hear Indecent Communication – Male & Female (13-15) (Consensual)	16/036	34(2)
Sexual Exposure – Male & Female (16+) and (13-15) where accused under 16 years	17/003	8
Sexual Exposure – Male & Female (under 13)	16/023	25
Sexual Exposure – Male & Female (13-15)	16/037	35
Voyeurism – Male & Female (16+) and (13-15) where accused under 16 years	17/004	9
Voyeurism – Male & Female (below 13)	16/024	26
Voyeurism – Male & Female (13-15)	16/038	36
Administering a Substance for Sexual Purposes	18/023	11
Engaging while an Older Child in Sexual Conduct – Male	16/033	37(1)
Engaging while an Older Child in Sexual Conduct – Female	16/034	37(1)
Engaging while an Older Child in Consensual Sexual Conduct – Male	16/033	37(4)
Engaging while an Older Child in Consensual Sexual Conduct – Female	16/034	37(4)
Sexual Abuse of Trust (Children)	18/019	42
Sexual Abuse of Trust of a Mentally Disordered Person	18/020	46(1)

Sexual Offences (Scotland) Act 2009, Section 1 Rape (Including Attempted Rape and Assault with Intent to Rape)

General Rule

One crime for each victim and where specific dates or loci are identified separate crimes to be recorded

Definition

If a person (“A”), with A’s penis –

(a) without another person (“B”) consenting, and

(b) without any reasonable belief that B consents,

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 the offence of rape.

Assault with Intent to Rape (Sexual Offences (Scotland) Act 2009, Section 1)

The accused physically and/or sexually assaults the complainer with the intention of penetrating his or her mouth/vagina/anus with his penis without his/her consent.

Attempted Rape (Sexual Offences (Scotland) Act 2009, Section 1)

The accused attempts to penetrate the vagina/anus/mouth of the complainer with his penis without the complainer’s consent and the accused had no reasonable belief that the complainer was consenting.

Victim

Person who has been raped

Locus

Where crime takes place

Examples

Example 1

‘A’ reports having been raped. The offender insists that ‘A’ consented although ‘A’ insists that this was not the case.

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape.

Example 2

A person reports being anally penetrated by a male without consent.

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

Example 3

A male reports being anally penetrated by another male in 2008 without consent.

- 1 x Sodomy

Example 4

‘A’ falls asleep at a party and wakes to find that ‘B’ has placed his penis in ‘A’s’ mouth.

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

Example 5

‘A’ reports that they have been raped by the same person on numerous occasions over several years and cannot specify dates although the last time was on or after 1st December 2010.

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

- 1 x Rape (Common Law)

Example 6

‘A’ reports that they have been raped on specific dates by the same person twice prior to 1st December 2010 and three times after.

- 2 x Rape (Common Law)

- 3 x Sexual Offences (Scotland) Act 2009, S1, Rape

Example

7 ‘A’ reports that they were forced into carrying out oral sex, thereafter anally penetrated and vaginally penetrated by the same person during the one incident all without consent.

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

Example 8

Whilst asleep ‘A’ is digitally penetrated by ‘B’. ‘A’ awakes and protests creating distance between them. ‘A’ falls back to sleep and is later awoken by ‘B’ who has removed ‘A’s’ underwear and attempts to lie of top of ‘A’ and insert his penis into her vagina.

- 1 x Sexual Offences (Scotland) Act 2009, S1, Attempted Rape

- 1 x Sexual Offences (Scotland) Act 2009, S2, Sexual Assault by Penetration

Example 9

Victim reports having been raped by the same perpetrator on several occasions and also disclosed attempts to rape on separate occasions. All occurred at the same locus where dates are not known but all occurred after 1 December 2010.

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

- 1 x Sexual Offences (Scotland) Act 2009, S1, Attempted Rape

Example 10

‘A’ reports having been raped on several occasions by the same suspect over the past three months. During this period the suspect has penetrated the victim's vagina, mouth and anus with his penis where clear indications were given by the victim that these actions were without consent. All rapes occurred at the same locus and specific dates are not known.

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

Example 11

‘A’ reports that they have been raped on several occasions by the suspect over the past three months. During this period the victim advises that on separate occasions they were subjected to sexual assault and digital penetration against their will. All crimes occurred at the same locus and specific dates are not known.

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

- 1 x Sexual Offences (Scotland) Act 2009, S2, Sexual Assault by Penetration

- 1 x Sexual Offences (Scotland) Act 2009, S3, Sexual Assault

(Requirement to record each different crime type if committed on separate occasions).

Compound Crimes

Example 12

‘A’ reports that they were sexually assaulted, their anus was digitally penetrated and they were raped.

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape (incorporating conduct including sexual assault, penetration and rape within modus operandi)

Note

This section applies to offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, the old common law rules of rape, sodomy or assault (indecent) will apply.

Where persons act individually, even though there is only one victim, count each individually.

Where several people act together, this will be recorded as one crime.

The rule relating to the law of rape is not the use of force but reference to the victim’s lack of consent, which is defined by the Act as “free agreement”. The Act also contains a non-exhaustive list of situations in Section 13 where consent will be deemed to be absent.

Where more than one location has been identified a crime should be recorded for each, e.g. a victim reporting having been raped at a locus in Tayside and at a locus in Fife would result in two crimes.

Recording/Reporting of Rape

Sexual Offences (Scotland) Act 2009, Section 18 Rape of a Young Child (Including Attempt)

General Rule

One crime for each victim and where specific dates and/or loci are identified separate crimes to be recorded

Definition

If a person (“A”), with A’s penis, penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of a child (“B”) who has not attained the age of 13 years, then A commits the offence of rape of a young child.

Victim

Child who has been raped

Locus

Where crime takes place

Examples

Example 1

Two young children who are under 13 years old enter a dwelling where a male has sexual intercourse with both.

- 2 x Sexual Offences (Scotland) Act 2009, S18, Rape of a Young Child.

Example 2

A young child under 13 years old has reported that a male penetrated their anus with his penis

- 1 x Sexual Offences (Scotland) Act 2009, S18, Rape of a Young Child.

Example

3 A young child under 13 years old reports that a male penetrated their mouth with his penis

- 1 x Sexual Offences (Scotland) Act 2009, S18, Rape of a Young Child.

Example 4

‘A’ reports that in 2001 when, under the age of puberty, they were forced to perform oral sex on adult ‘B’.

- 1 x Lewd and Libidinous Practices.

Example 5

Victim reports having been raped on numerous occasions over a six year period between the ages of 11 and 17 by the same perpetrator at the same locus where specific dates are not known. All crimes occurred after 1 December 2010.

- 1 x Sexual Offences (Scotland) Act 2009, S18, Rape of a Young Child (to account for ages 11 to 12)

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape (to account for ages 13 to 17 - use "older child" offence modifier).

Compound Crimes

Example 6

A young child who is under 13 years old reports that on the same occasion they were sexually assaulted, their anus was digitally penetrated and they were raped.

- 1 x Sexual Offences (Scotland) Act 2009, S18, Rape of a Young Child (incorporating conduct which includes the sexual assault, penetration and rape within the modus operandi).

Note

This section applies to all offences occurring on or after 1^st December, 2010.

Young children are not considered capable in law of giving consent to sexual activity and accordingly it is irrelevant to the offence whether or not the young child has been a willing participant in the act.

This section applies to offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, the old common law rules of rape or lewd and libidinous practices may be appropriate.

Recording/Reporting of Rape

Sexual Offences (Scotland) Act 2009, Section 28 Having sexual intercourse with an Older Child

General Rule

One crime for each victim and where separate dates and/or loci are identified separate crimes to be recorded

Definition

If a person (“A”), who has attained the age of 16 years, with A’s penis, penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of a child (“B”) who-

(a) has attained the age of 13 years, but

(b) has not attained the age of 16 years,

then A commits the offence of having intercourse with an older child.

Victim

Child who has been penetrated

Locus

Where crime takes place

Examples

Example 1

Two older children aged 13 to 15 are invited into a dwelling where an adult male has consensual sexual intercourse with them.

- 2 x Sexual Offences (Scotland) Act 2009, S28, Having Sexual Intercourse with an Older Child.

Example 2

An older child aged between 13 and 15 reports that an adult male had sexual intercourse with them without any consent being given.

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

Example 3

A report is received that an older child aged 13 to 15 years has willingly performed oral sex on a male person over the age of 16 years.

- 1 x Sexual Offences (Scotland) Act 2009, S28, Having Sexual Intercourse with an Older Child

Example 4

An older child aged 13 to 15 years discloses that they had consensual sexual intercourse on a number of occasions with their partner who is also aged 13 to 15 years.

- 1 x Sexual Offences (Scotland) Act 2009, S37 (1) - male

- 1 x Sexual Offences (Scotland) Act 2009, S37 (4) - female

Note - If only one participant requires to be jointly reported per Lord Advocate's Guidelines, only one crime should be recorded. If neither participant is to be reported no crimes should be recorded.

Example 5

An older child aged 13 to 15 years discloses that they had consensual sexual intercourse with an adult male most Fridays over a period of time.

- 1 x Sexual Offences (Scotland) Act 2009, S28, Having Sexual Intercourse with an Older Child (due to the indications being this has been a continuity of action, only 1 crime should be recorded).

Example 6

A female 'A' who is aged 15 has consensual sexual intercourse with a male 'B' aged 17. 'B' later inserts his penis into 'As' mouth without her consent.

- 1 x Sexual Offences (Scotland) Act 2009, S28, Having Sexual Intercourse with an Older Child

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

Example 7

A female 'A' who is aged 15 has consensual sexual intercourse with a male 'B' aged 17. During intercourse 'A' tells 'B' to stop and he continues.

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape (no requirement to record Section 28 as this is a continuous act which develops into a rape).

Example 8

A female 'A' who is aged 15 reports having been raped by a male 'B' aged 17. 'A' also discloses that on previous occasions she has engaged in consensual sexual intercourse with 'B' where dates are unknown.

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

- 1 x Sexual Offences (Scotland) Act 2009, S28, Having Sexual Intercourse with Older Child

Compound Crimes

Example 9

An older child aged 13 to 15 years discloses that she had willingly allowed her boyfriend, who is over 16 years of age, to digitally penetrate her vagina, fondle her breasts and that they had consensual sexual intercourse.

- 1 x Sexual Offences (Scotland) Act 2009, S28, Having Sexual Intercourse with Older Child (incorporating details of the conduct within the modus operandi).

Note

Where the intercourse has not been consensual, a crime of rape should be recorded.

Although there is some overlap between the older child offences and the non-consensual offences, this means that any instances of sexual activity between an adult and an older child can be prosecuted as an older child offence, even where it cannot be proved beyond reasonable doubt that the activity took place without the consent of the child.

This section applies to all offences occurring on or after 1^st December, 2010. This section applies to all offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, the old common law of Lewd and Libidinous Practices will apply or the offence of Sexual Intercourse with Girl over 13 but under 16.

Sexual Offences (Scotland) Act 2009, Section 2 Sexual Assault by Penetration

General Rule

One crime for each victim and where specific dates and/or loci are identified separate crimes to be recorded

Definition

If a person (“A”), with any part of A’s body or anything else –

(a) without another person (“B”) consenting, and

(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 the offence of sexual assault by penetration.

Victim

Person who has been sexually assaulted

Locus

Where crime takes place

Examples

Example 1

An adult reports being drunk at a party and falling asleep in a friend’s bed. Another adult takes advantage of the situation, removes complainer’s lower clothing and digitally penetrates the anus.

- 1 x Sexual Offences (Scotland) Act 2009, S2, Sexual Assault by Penetration

Example 2

A female is grabbed from behind by a male when out walking. He penetrates her vagina although she is unable to say what with.

- 1 x Sexual Offences (Scotland) Act 2009, S2, Sexual Assault by Penetration

Example 3

A female reports that in 2008, a male digitally penetrated her vagina without her consent.

- 1 x Assault (indecent) at Common Law

Example 4

- 1 x Sexual Offences (Scotland) Act 2009, S1, Attempted Rape

- 1 x Sexual Offences (Scotland) Act 2009, S2, Sexual Assault by Penetration

Example 5

'A' in the belief that female 'B' is concealing property belonging to 'A' internally subjects 'B' to a non-consensual search of her vagina.

- 1 x Sexual Offences (Scotland) Act 2009, S2, Sexual Assault by Penetration

Compound Crimes

Example 6

A female reports that she was grabbed from behind whereby her breasts were fondled, she fell to the ground whereby the male placed his hand up her skirt and digitally penetrated her anus.

- 1 x Sexual Offences (Scotland) Act 2009, S2, Sexual Assault by Penetration (incorporating conduct including sexual assault and penetration within modus operandi).

Note

This offence will tackle situations where the complainer knows that they have been penetrated however they cannot say what penetrated them e.g. because they were blindfolded.

There is an element of overlap between this section, rape and sexual assault, however where the Crown has evidence that the victim was subjected to penile penetration, a charge of Rape (Section 1) would be recorded.

This section applies to offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, the old common law rules of rape, sodomy or assault (indecent) will apply.

Sexual Offences (Scotland) Act 2009, Section 19 Sexual Assault on a Young Child by Penetration

General Rule

One crime for each victim and where specific dates and/or loci are identified separate crimes to be recorded

Definition

If a person (“A”), with any part of A’s body or anything else, penetrates sexually to any extent, either intending to do so or reckless as to whether there is penetration to the vagina or anus of a child (“B”) who has not attained the age of 13 years, then A commits the offence of sexual assault on a young child by penetration.

Victim

Child who has been sexually assaulted

Locus

Where crime takes place

Examples

Example 1

A young child under 13 years old reports that her vagina was penetrated by a male however she does not know what penetrated her because she had her eyes closed.

- 1 x Sexual Offences (Scotland) Act 2009, S19, Sexual Assault on a Young Child by Penetration

Example 2

A young child under 13 years old reports that an adult carried out digital penetration of their anus.

- 1 x Sexual Offences (Scotland) Act 2009, S19, Sexual Assault on a Young Child by Penetration

Example 3

A young child under 13 years old has allowed her 13 year old boyfriend to penetrate her vagina with an object.

- 1 x Sexual Offences (Scotland) Act 2009, S19, Sexual Assault on a Young Child by Penetration.

Compound Crimes

Example 4

A young child under 13 years old reports that she was grabbed from behind whereby her breasts were fondled, she fell to the ground whereby the male placed his hand up her skirt and digitally penetrated her anus.

- 1 x Sexual Offences (Scotland) Act 2009, S19, Sexual Assault on a Young Child by Penetration (incorporating conduct including sexual assault and penetration within modus operandi)

Note

This section applies to all offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, the old common law rules of rape, sodomy or lewd and libidinous practices may be appropriate.

Young children are not considered capable in law of giving consent to sexual activity and accordingly it is irrelevant to the offence whether or not the young child has “consented”.

Sexual Offences (Scotland) Act 2009, Section 29 Engaging in Penetrative Sexual Activity with or towards an Older Child

General Rule

One crime for each victim and where specific dates and/or loci are identified separate crimes to be recorded

Definition

If a person (“A”), who has attained the age of 16 years, with any part of A’s body or anything else, penetrates sexually to any extent, either intending to do so or reckless as to whether there is penetration, the vagina or anus of a child (“B”) who-

(a) has attained the age of 13 years, but

(b) has not attained the age of 16 years,

then A commits the offence of engaging in penetrative sexual activity with or towards an older child.

Victim

Child who has been penetrated

Locus

Where crime takes place

Examples

Example 1

An older child aged 13 to 15 discloses that she has allowed her partner who is over 16 years of age, to digitally penetrate her vagina.

- 1 x Sexual Offences (Scotland) Act 2009, S29, Engaging in Penetrative Sexual Activity with or towards an Older Child.

Example 2

An older child aged 13 to 15 discloses that her partner who is over 16 years of age, digitally penetrated her vagina without her consent.

- 1 x Sexual Offences (Scotland) Act 2009, S2, Sexual Assault by Penetration.

Compound Crimes

Example 3

An older child aged 13 to 15 discloses that she allowed her partner, who is over 16 years of age, to fondle her breasts and digitally penetrated her vagina.

- 1 x Sexual Offences (Scotland) Act 2009, S29 Engaging in Penetrative Sexual Activity with or towards an Older Child (incorporating conduct including sexual assault and penetration within modus operandi).

Note

This section applies to all offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, the old common law of Lewd and Libidinous Practices will apply or the offence of Sexual Intercourse with Girl over 13 but under 16.

In this section concerning ‘Older Children’, if the child consents to participate in the activities, it should be charged under the ‘Older Children’ section of the legislation. However if there is no consent to this at all, then Section 2 of the legislation should apply, as the penalties are greater.

Sexual Offences (Scotland) Act 2009, Section 3 Sexual Assault

General Rule

One crime for each victim and where specific dates and/or loci are identified separate crimes to be recorded

Definition

If a person (“A”)-

(a) without another person (“B”) consenting, and

(b) without any reasonable belief that B consents,

does any of the things mentioned below, then A commits the offence of sexual assault.

Those things are, that A-

(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 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.

Victim

Person who has been sexually assaulted

Locus

Where crime takes place

Examples

Example 1

A female is grabbed from behind by a male when out walking. He fondles her breasts and her vagina over her clothing.

- 1 x Sexual Offences (Scotland) Act 2009, S3, Sexual Assault

Example 2

Two adults lying asleep awake to find a male ejaculating semen over them.

- 2 x Sexual Offences (Scotland) Act 2009, S3, Sexual Assault

Example 3

Person penetrates female's vagina with an object without her consent.

- 1 x Sexual Offences (Scotland) Act 2009, S2, Sexual Assault by penetration.

Example 4

'A' is forced by 'B' to masturbate 'B'. 'A' and 'B' are both adults.

- 1 x Sexual Offences (Scotland) Act 2009, S3, Sexual Assault

Note

The offence of Sexual Assault replaces the previous common law offence of assault aggravated by indecency in respect of conduct falling within its scope. However, the common law of assault is not repealed and is still open for any behaviour falling out with the statutory definition of sexual assault

There is an element of overlap between this section, rape and sexual assault by penetration however where the Crown has evidence that the victim was subjected to penile penetration, a charge of sexual assault will not be brought.

This section applies to offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, the old common law rules of assault (indecent) will apply.

Where offences occur which encompass a combination of Sections 1, 2 and 3, only the most serious should be counted/recorded for statistical purposes and a compound charge used to report.

Sexual Offences (Scotland) Act 2009, Section 20 Sexual Assault on a Young Child

General Rule

One crime for each victim and where separate dates and/or loci are identified separate crimes to be recorded

Definition

If a person (“A”) does any of the things mentioned below, “B” being in each case a child who has not attained the age of 13 years), then A commits the offence of sexual assault on a young child. Those things are, that A-

(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,

(d) intentionally or recklessly ejaculates semen onto B,

(e) intentionally or recklessly emits urine or saliva onto B sexually

Victim

Child who has been sexually assaulted

Locus

Where crime takes place

Examples

Example 1

A young child under 13 years old is approached by an unknown person who touches the young child’s private parts over their clothing.

- 1 x Sexual Offences (Scotland) Act 2009, S20, Sexual Assault on a Young Child

Example 2

A young child under 13 years old allows their friend who is an older child aged 13 to 15, to touch them in a sexual manner.

- 1 x Sexual Offences (Scotland) Act 2009, S20, Sexual Assault on a Young Child

Example 3

Whilst looking after young female child a male exposes himself and thereafter engages her in sexual activity by placing her hand on his penis and touching her vagina.

- 1 x Sexual Offences (Scotland) Act 2009, S20 Sexual Assault on a Young Child (this would be treated as a single course of conduct).

Example 4

A 13 year old female has consensual sexual intercourse with a 12 year old male.

- 1 x Sexual Offences (Scotland) Act 2009, S20 Sexual Assault on a Young Child (per this legislation there is no need to establish an absence of consent as the child under the age of 13 is deemed to be incapable of consenting to sexual activity. Since the suspect is 13 and female the appropriate offence is under Section 20. Had the gender of the two participants been reversed the appropriate offence would have been Section 18, Rape of a Young Child.

Example 5

Victim reports having been sexually assaulted on numerous occasions over an eight year period between the ages of 9 and 17 by the same perpetrator between 2008 and 2016 at the same locus where specific dates are not known.

- 1 x Lewd and Libidinous Practices (common law) to account for 2008 to 2010 when the victim was 9 up to age 11 when Sexual Offences (Scotland) Act 2009 was introduced in 2010

- 1 x Sexual Offences (Scotland) Act 2009, S20, Sexual Assault of a Young Child, to account for period when victim was aged 12 (Post 2010)

- 1 x Sexual Offences (Scotland) Act 2009, S3, Sexual Assault, to account for ages 13 to 17 (use "older child" offence modifier)

Note

This section applies to offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, the old common law rules of lewd and libidinous practices and/or Indecent Assault will apply.

Young children are not considered capable in law of giving consent to sexual activity and accordingly it is irrelevant to the offence whether or not the young child has “consented”.

Where offences occur which encompass a combination of Sections 18, 19, and 20 only the most serious should be counted/recorded for statistical purposes and a compound charge used to report.

Sexual Offences (Scotland) Act 2009, Section 30 Engaging in Sexual Activity with or towards an Older Child

General Rule

One crime for each victim and where specific dates and/or loci are identified separate crimes to be recorded

Definition

If a person (“A”) who has attained the age of 16 years, does any of the things mentioned below, “B” being in each case a child who-

(a) has attained the age of 13 years, but

(b) has not attained the age of 16 years

then A commits the offence of engaging in sexual activity with or towards an older child.

Those things are, that A-

(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,

(d) intentionally or recklessly ejaculates semen onto B,

(e) intentionally or recklessly emits urine or saliva onto B sexually.

Victim

Child who has been engaged in sexual activity

Locus

Where crime takes place

Examples

Example 1

An older child aged 13 to 15 reports that he allowed his partner who is over 16 years of age to touch his penis.

- 1 x Sexual Offences (Scotland) Act 2009, S30, Engaging in Sexual Activity with or towards an Older Child

Example 2

An older child aged 13 to 15 is approached by an unknown adult and touched by this person on his penis over clothing without consent.

- 1 x Sexual Offences (Scotland) Act 2009, S3, Sexual Assault

Note

This section applies to all offences occurring on or after 1^st December, 2010.

In this section concerning ‘Older Children’, if the child consents to participate in the activities, it should be charged under the ‘Older Children’ section of the legislation. However if there is no consent to this at all, then Section 3 of the legislation should apply, as the penalties are greater.

Where offences occur which encompass a combination of Sections 28, 29 and 30 only the most serious should be counted/recorded for statistical purposes and a compound charge used to report.

Sexual Offences (Scotland) Act 2009, Section 4 Sexual Coercion

General Rule

One crime for each victim and where specific dates and/or loci are identified separate crimes to be recorded

Definition

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 caused B to participate in that activity, then A commits the offence of sexual coercion.

Victim

Person who has been sexually coerced

Locus

Where crime takes place

Examples

Example 1

An adult is forced by another to touch themselves in a sexual manner.

- 1 x Sexual Offences (Scotland) Act 2009, S4, Sexual Coercion

Example 2

An adult ‘A’ is forced by an Adult ‘B’ to touch another ‘C’ in a sexual manner. ‘A’ and ‘C’ are non-consenting.

- 1 x Sexual Offences (Scotland) Act 2009, S4, Sexual Coercion - in respect of ‘A’

- 1 x Sexual Offences (Scotland) Act 2009, S3, Sexual Assault - in respect of ‘C’

Example 3

'A' is forced by 'B' to masturbate 'B'. 'A' and 'B' are both adults.

- 1 x Sexual Offences (Scotland) Act 2009, S3, Sexual Assault

Example 4

An adult 'A' engages in consensual sexual communication with 'B' over social media. 'A' believes 'B' is of the opposite sex. 'A' agrees to film themselves undertaking a sexual act and sends the recording to 'B'. 'B' discloses they are not the person they purported to be.

- 1 x Sexual Offences (Scotland) Act 2009, S4, Sexual Coercion

Note

The offence of sexual coercion is designed to criminalise behaviour, which compels the complainer to engage in sexual activity, which may, but need not, involve contact with the offender. This may involve compelling the victim to engage in sexual activity with an animal, an object or themselves.

There is an overlap to a certain extent with the offence of sexual assault in cases where the perpetrator compelled the victim to engage in conduct which involved physical contact with the perpetrator. However, this offence is primarily intended to capture coercive sexual conduct which does not involve physical conduct between the perpetrator and the victim.

In circumstances where a person is caused to take a naked image of themselves this amounts to causing that person to participate in a sexual act, unless this forms part of an extortion.

Sexual Offences (Scotland) Act 2009, Section 21 Causing a Young Child to participate in a Sexual Activity

General Rule

One crime for each victim and where specific dates and/or loci are identified separate crimes to be recorded

Definition

If a person (“A”) intentionally causes a child (“B”) who has not attained the age of 13 years to participate in a sexual activity, then A commits the offence of causing a young child to participate in a sexual activity.

Victim

Child who has participated in the sexual activity

Locus

Where crime takes place

Examples

Example 1

A young child under 13 years old is forced by ‘A’ to touch the penis of another person ‘B’.

- 1 x Sexual Offences (Scotland) Act 2009, S21, Causing a Young Child to Participate in a Sexual Activity

Example 2

Two young children under 13 years old are asked by a person to touch themselves in a sexual manner, which they do.

- 2 x Sexual Offences (Scotland) Act 2009, S21, Causing a Young Child to Participate in a Sexual Activity

Note

This section applies to all offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, the old common law crime of Lewd and Libidinous Practices will apply.

Young children are not considered capable in law of giving consent to sexual activity and accordingly it is irrelevant to the offence whether or not the young child has “consented”.

In circumstances where a person is caused to take a naked image of themselves this amounts to causing that person to participate in a sexual act, unless this forms part of an extortion.

Sexual Offences (Scotland) Act 2009, Section 31 Causing an Older Child to participate in a Sexual Activity

General Rule

One crime for each victim and where separate dates and/or loci are identified separate crimes to be recorded

Definition

If a person (“A”) who has attained the age of 16 years, intentionally causes a child (“B”), who either-

(i) has attained the age of 13 years, but

(ii) has not attained the age of 16 years,

to participate in a sexual activity, then A commits the offence of causing an older child to participate in a sexual activity.

Victim

Child who has participated in a sexual activity

Locus

Where crime takes place

Examples

Example 1

An older child aged 13 to 15 is encouraged by a person over the age of 16 to touch themselves in a sexual manner and they carry this out.

- 1 x Sexual Offences (Scotland) Act 2009, S31, Causing an Older Child to participate in a Sexual Activity

Example 2

An older child aged 13 to 15 is forced by a person over the age of 16 to touch themselves in a sexual manner.

- 1 x Sexual Offences (Scotland) Act 2009, S4, Sexual Coercion

Example 3

An older child aged 13 to 15 years is forced by ‘A’ who is over 16 years, to touch ‘B’ in a sexual manner.

- 1 x Sexual Offences (Scotland) Act 2009, S4, Sexual Coercion

- 1 x Sexual Offences (Scotland) Act 2009, S3, Sexual Assault in respect of ‘B’ (this will depend on the age of ‘B’).

Note

This section applies to all offences occurring on or after 1^st December, 2010.

In circumstances where a person is caused to take a naked image of themselves this amounts to causing that person to participate in a sexual act, unless this forms part of an extortion.

In this section concerning ‘Older Children’, if the child consents to participate in the activities, it should be charged under the ‘Older Children’ section of the legislation. However if there is no consent to this at all, then Section 4 of the legislation should apply, as the penalties are greater.

Sexual Offences (Scotland) Act 2009, Section 5 Coercing a person into being present during a Sexual Activity

General Rule

One crime for each incident or course of conduct

Definition

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 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 the offence of coercing a person into being present during a sexual activity.

The purposes in subsection (2) are-

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

Victim

Person who has been coerced into being present during a sexual activity

Locus

Where crime takes place

Examples

Example 1

‘A’ is at a party when they receive a call from ‘B’ asking them to come upstairs to the bedroom. When ‘A’ enters the room they find ‘B’ having sexual intercourse with another.

- 1 x Sexual Offences (Scotland) Act 2009, S5, Coercing a person into being present during a Sexual Activity

Example 2

On three separate occasions on the same day at the same locus ‘A’ says "excuse me" to three females and when they turn round ‘A’ is masturbating.

- 3 x Sexual Offences (Scotland) Act 2009, S5 Coercing a person into being present during a Sexual Activity

Note

The Act defines “in the presence of” as places where A can be seen by B.

It is not essential to prove that the victim actually observed the activity; it is enough that the activity was in a place where it was capable of being observed by the victim.

This section applies to offences occurring on or after 1^st December, 2010. It will not apply for relevant activity occurring before this date. Depending on the circumstances, a breach of the peace or an assault (indecent) may be the appropriate charge in this case.

Where there is a mixed age group e.g. young children and older children, subjected to the conduct, the Young Child offence should be recorded.

A person being caused to view someone sexually exposing themselves or performing a sexual act remotely via webcam or other social media application should be recorded as a crime of "Cause to view sexual image" and not one of "Sexual exposure" or "Cause to be present during sexual activity" both of which require the victim and suspect to be in the physical presence of each other.

Sexual Offences (Scotland) Act 2009, Section 22 Causing a Young Child to be present during a Sexual Activity

General Rule

One crime for each incident or course of conduct

Definition

If a person (“A”) either-

(a) intentionally engages in a sexual activity and for a purpose mentioned in subsection (2) does so in the presence of a child (“B”) who has not attained the age of 13 years, or

(b) intentionally and for a purpose mentioned in that subsection causes B to be present while a third person engaged in such an activity

then A commits an offence of causing a young child to be present during a sexual activity.

The purposes in subsection (2) are-

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

Victim

Child/children who has/have been present during the sexual activity

Locus

Where crime takes place

Examples

Example 1

‘A’ and ‘B’ engage in sexual intercourse whilst asking their 2 young children who are under 13 years old to sit and watch.

- 1 x Sexual Offences (Scotland) Act 2009, S22, Causing a Young Child to be present during a Sexual Activity

Example 2

An adult takes a relative who is a young child under 13 years old, to a sex show where other adults are performing sexual intercourse with each other.

- 1 x Sexual Offences (Scotland) Act 2009, S22, Causing a Young Child to be present during a Sexual Activity

Note

This section applies to all offences occurring on or after 1^st December 2010. If the offence occurred prior to this date, the old common law of Lewd and Libidinous Practices will apply.

It is not essential to prove that the young child actually observed the activity; it is enough that the activity was in a place where it was capable of being observed by the young child.

Where there is a mixed age group e.g. young children and older children, subjected to the conduct, the Young Child offence should be recorded.

Sexual Offences (Scotland) Act 2009, Section 32 Causing an Older Child to be present during a Sexual Activity

General Rule

One crime for each incident or course of conduct

Definition

If a person (“A”) who has attained the age of 16 years either-

(a) intentionally engages in a sexual activity and for a purpose mentioned below does so in the presence of a child (“B”), who-

(i) has attained the age of 13 years, but

(ii) has not attained the age of 16 years, or

(b) intentionally, and for a purpose mentioned in subsection (2) causes B to be present while a third person engaged in such an activity

then A commits the offence of causing an older child to be present during a sexual activity.

The purposes are-

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

Victim

Child who has been present during the sexual activity

Locus

Where crime takes place

Examples

Example 1

For their own sexual gratification, two adults encourage an older child aged 13 to 15 into a bedroom in order that the older child can watch the adults engage in sexual intercourse with each other. The child attends and adults carry out sexual indulgences in full view of the older child.

- 1 x Sexual Offences (Scotland) Act 2009, S32, Causing an Older Child to be present during a Sexual Activity

Example 2

Two adults against the will of the child, force/coerce an older child aged 13 to 15, into a bedroom in order that the older child can watch the adults engage in sexual intercourse with each other.

- 1 x Sexual Offences (Scotland) Act 2009, S5 Coercing a Person into being present During a Sexual Activity

Example 3

An adult is seen in a public place apparently masturbating under a towel, although is not exposing themselves. An adult with an older child aged 13 to 15 witnesses this act.

- 1 x Sexual Offences (Scotland) Act 2009, S5, Cause to be present during Sexual Activity (the suspect was in a public place and was not being discrete - while the child is aged 13 to 15 there was clearly no consent).

Note

This section applies to all offences occurring on or after 1^st December, 2010. It is not essential to prove that the older child actually observed the activity; it is enough that the activity was in a place where it was capable of being observed by the older child.

Where there is a mixed age group e.g. young children and older children, subjected to the conduct, the Young Child offence should be recorded.

In this section concerning ‘Older Children’, if the child consents to participate in the activities, it should be charged under the ‘Older Children’ section of the legislation. However if there is no consent to this at all, then Section 5 of the legislation should apply, as the penalties are greater.

Sexual Offences (Scotland) Act 2009, Section 6 Coercing a person into looking at a Sexual Image

General Rule

One crime for each incident or course of conduct

Definition

If a person (“A”) intentionally and for a purpose mentioned below causes another person (“B”)-

(a) without B consenting, and

(b) without any reasonable belief that B consents,

to look at a sexual image, then A commits the offence of coercing a person into looking at a sexual image.

The purposes in subsection (2) are-

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

Victim

Person who has been coerced into looking at the sexual image

Locus

Where sent from, if known, otherwise where received

Examples

Example 1

An adult reports receiving an e-mail with a video attachment from a known person. The text of the e-mail suggests that the recipient should open the video attachment to view footage of an innocuous event. Upon opening the attachment it is an explicit sexual video.

- 1 x Sexual Offences (Scotland) Act 2009, S6, Coercing a person to look at a Sexual Image

Example 2

An adult reports receiving a sexual image via email. It is established during investigation that the email was not intended to be sent to the complainer and was in fact intended for the sender’s partner.

- 1 x Communications Act 2003, S127 (Sexual), Indecent or Obscene Messages, may be appropriate due to the absence of the intent to humiliate, distress or alarm or for obtaining sexual gratification.

Example 3

‘A’ approaches a camera attached to the house of ‘B’ and indecently exposes themselves in front of the camera knowing that ‘B’ will review the content.

- 1 x Sexual Offences (Scotland) Act 2009, S6, Coercing a person to look at a Sexual Image

Example 4

On reviewing CCTV from the previous day ‘A’ and ‘B’ are seen to be engaged in a sexual act, it is clear they are aware there is CCTV as they wave at the camera and regularly look up at the camera, smiling and waving.

- 1 x Sexual Offences (Scotland) Act 2009, S6, Coercing a person to look at a Sexual Image (as the circumstances indicate they were aware they were being viewed/going to be viewed). If the circumstances indicate they were unaware of the CCTV then a Public Indecency would be applicable.

Note

For the purposes of this section, a sexual image is defined by the act as an image (produced by whatever means and whether or not a moving image) of-

‘A’ engaging in a sexual activity or of a third person or imaginary person so engaging,
‘A’s genitals or the genitals of a third person or imaginary person.

A ‘topless’ pin-up would not be considered a sexual image as the subject’s genitals are not visible.

The offence of coercing a person into looking at a sexual image is only committed if the victim did not consent to looking at the image and the accused had no reasonable belief that the victim so consented. Furthermore, the accused does not commit the offence if he or she had intended to direct or send the image to someone other than the victim (i.e. by email).

If a victim receives an intimate image of themselves this does not constitute any offence under Abusive Behaviour and Sexual Harm (Scotland) Act 2016 or Sexual Offences (Scotland) Act 2009. In these circumstances an offence under Communications Act 2003, Section 127 (sexual) should be recorded.

This section applies to offences occurring on or after 1^st December, 2010. It will not apply for relevant activity occurring before this date. Depending on the circumstances, a breach of the peace, an assault (indecent) or an offence under the Communications Act may be the appropriate charge in this case.

A general point regarding all the offences requiring a ‘purpose’ – Section 49 of the Act provides that the ‘purpose’ is established if in all the circumstances it may reasonably be inferred that accused was doing the thing for the purpose in question.

Where there is a mixed age group e.g. young children and older children, subjected to the conduct, the Young Child offence should be recorded.

Sexual Offences (Scotland) Act 2009, Section 23 Causing a Young Child to look at a Sexual Image

General Rule

One crime for each incident or course of conduct

Definition

If a person (“A”) intentionally and for a purpose mentioned below causes a child (“B”) who has not attained the age of 13 years to look at a sexual image, then A commits the offence of causing a young child into looking at a sexual image.

The purposes in subsection (2) are-

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

Victim

Child who has looked at the sexual image

Locus

Where sent from, if known, otherwise where received

Examples

Example 1

A young child under 13 reports receiving a sexual image on their mobile phone. The image has been sent to them intentionally by an adult to cause alarm.

- 1 x Sexual Offences (Scotland) Act 2009, S23, Causing a Young Child to look at a Sexual Image

Example 2

Two young children under 13 years old are subjected to watching pornographic films by their babysitter, every Friday night for 6 weeks.

- 1 x Sexual Offences (Scotland) Act 2009, S23, Causing a Young Child to look at a Sexual Image (indications are this has been a course of conduct).

Example 3

A report is received that two young children under 13 years old have independently been shown indecent photos showing genitals on a mobile phone by an older child.

- 2 x Sexual Offences (Scotland) Act 2009, S23, Causing a Young Child to look at a Sexual Image

Example 4

A 12 year old child has been corresponding separately by e-mail with two adults who do not know and are not aware of each other. The relationship with the two adults has been building to the point where the communication becomes sexual and they ask the child to send them a naked photo in exchange for naked images of themselves. The child sends them photos of a naked person (head not in the photos) and in return receives naked photos of the adults (heads not in the photos). The photos sent by the child are those of an anonymous person found on the internet. Throughout the correspondence the child claims to be 16 years old.

- 2 x Sexual Offences (Scotland) Act 2009, S23, Causing a Young Child to look at a Sexual Image

- 2 x Sexual Offences (Scotland) Act, 2009, S24, Communicating Indecently with a Young Child

Note

This section applies to all offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, the old common law of Lewd and Libidinous Practices will apply.

For the purposes of this section, a sexual image is defined by the act as an image (produced by whatever means and whether or not a moving image) of-

‘A’ engaging in a sexual activity or of a third person or imaginary person so engaging,
‘A’s genitals or the genitals of a third person or imaginary person.

A ‘topless’ pin-up would not be considered a sexual image as the subject’s genitals are not visible.

Where there is a mixed age group e.g. young children and older children, subjected to the conduct, the Young Child offence should be recorded.

Sexual Offences (Scotland) Act 2009, Section 33 Causing an Older Child to look at a Sexual Image

General Rule

One crime for each incident or course of conduct

Definition

If a person (“A”) who has attained the age of 16 years, intentionally and for a purpose mentioned below causes a child (“B”) who-

(a) has attained the age of 13 years, but

(b) has not attained the age of 16 years,

to look at a sexual image, then A commits the offence of causing an older child to look at a sexual image.

The purposes are-

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

Victim

Child who has looked at the sexual image

Locus

Where sent from, if known, otherwise where received

Examples

Example 1

An older child aged 13 to 15 years reports that an adult has convinced/encouraged them to look at a number of photographs, all of which show the adult engaged in various sexual acts with another adult person. The older child looks through all the photographs.

- 1 x Sexual Offences (Scotland) Act 2009, S33, Causing an Older Child to look at a Sexual Image.

Example 2

An older child aged 13 to 15 years reports that an adult has forced her to look at a number of photographs, all of which show the adult engaged in various sexual acts with another adult person. The older child looks through all the photographs.

- 1 x Sexual Offences (Scotland) Act 2009, S6, Coercing a person to look at a Sexual Image

Example 3

Two children, one a young child aged under 13 years, the other an older child aged 13 to 15 are encouraged to sit and watch pornographic films showing full sexual intercourse by an adult babysitter every Friday night for 6 weeks. The children watch the films although they are not made to and can leave at any point.

- 1 x Sexual Offences (Scotland) Act 2009, S23, Causing a Young Child to look at a Sexual Image (the young child offence is recorded due to this being the most serious, and only one crime is required to be recorded due to the circumstances indicate this to be a course of conduct).

Example 4

Two children, one a young child aged under 13 years, the other an older child aged 13 to 15 are forced to sit and watch pornographic films showing full sexual intercourse by an adult babysitter on a number of occasions where specific dates are unknown.

Note

This section applies to all offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, the old common law of Lewd and Libidinous Practices or an offence under the Communications Act 2003, Section 127 will apply.

For the purposes of this section, a sexual image is defined by the act as an image (produced by whatever means and whether or not a moving image) of-

‘A’ engaging in a sexual activity or of a third person or imaginary person so engaging,
‘A’s genitals or the genitals of a third person or imaginary person.

A ‘topless’ pin-up would not be considered a sexual image as the subject’s genitals are not visible.

In this section concerning ‘Older Children’, if the child consents to participate in the activities, it should be charged under the ‘Older Children’ section of the legislation. However if there is no consent to this at all, then Section 6 of the legislation should apply, as the penalties are greater.

Where there is a mixed age group e.g. young children and older children, subjected to the conduct, the Young Child offence should be recorded.

Sexual Offences (Scotland) Act 2009, Section 7(1) Communicating Indecently

General Rule

One crime for each victim and continuity of action or per incident (as appropriate)

Definition

If a person (“A”) intentionally and for a purpose mentioned in subsection (3) sends, by whatever means, a sexual written communication to or directs, by whatever means, a sexual verbal communication at, another person (“B”)-

(a) without B consenting to its being so sent or directed, and

(b) without any reasonable belief that B consents to its being so sent or directed,

then A commits the offence of communicating indecently.

The purposes in subsection (3) are-

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

Victim

Person who has received the indecent communication

Locus

Where communication made from, if known, otherwise where communication received

Examples

Example 1

A person for the purposes of obtaining sexual gratification intentionally sends a sexually explicit text message to another adult on their mobile phone without the consent of the recipient.

- 1 x Sexual Offences (Scotland) Act 2009, S7 (1), Communicating Indecently

Example 2

A person for the purposes of obtaining sexual gratification intentionally sends a sexually explicit text message to multiple recipients on their mobile phones without the consent of the recipients.

- 1 x Sexual Offences (Scotland) Act 2009, S7 (1), Communicating Indecently (Continuity of action).

Example 3

‘A’ sits down beside ‘B’ (aged over 16 years) on a bus and makes sexual comments to ‘B’. ‘B’ is frightened and says nothing. ‘B’ eventually arrives at their stop and ‘A’ lets them off.

- 1 x Sexual Offences (Scotland) Act 2009, S7 (1), Communicating Indecently

Example 4

‘A’ sits down beside ‘B’ (aged over 16 years) on a bus and makes a series of sexual comments to ‘B’ throughout the journey. As ‘B’ gets up to get off the bus they are sexually assaulted by ‘B’.

- 1 x Sexual Offences (Scotland) Act 2009, S3, Sexual Assault

- 1 x Sexual Offences (Scotland) Act 2009, S7 (1), Communicating Indecently

Example 5

‘A’ sits down beside ‘B’ (aged over 16 years) on a bus and makes sexual comments to ‘B’ just before sexually assaulting them.

- 1 x Sexual Offences (Scotland) Act 2009, S3, Sexual Assault (since the sexual comments were made in the immediate lead up to the sexual assault there is no requirement to record a separate offence of Communicating Indecently).

Example 6

Person 'A' who resides in 'X' Division sends sexually explicit text messages to 'B' who resides in 'Z' Division.

- 1 x Sexual Offences (Scotland) Act 2009, S7(1), Communicating Indecently, the locus being 'Z' Division unless there is clear evidence that 'A' was in a specific location in 'X' Division at the time the communication was sent.

Note

For the purposes of this section, a sexual communication can be either a written communication or a verbal communication:

“Written communication” means a communication in whatever written form, and without prejudice to that generality includes a communication which comprises writings of a person other than A (as for example a passage in a book or magazine) and “Verbal communication” means a communication in whatever verbal form, and without prejudice to that generality includes-

a communication which comprises sounds of sexual activity (whether actual or simulated), and
a communication by means of sign language.

For the offence of Communicating Indecently to be committed, the accused must intend to communicate with the victim.

If the purpose is not to obtain sexual gratification or to humiliate, distress or alarm, Communications Act 2003, Section 127 may be appropriate.

In circumstances where a victim is subjected to indecent communication which occurs in the immediate lead up to, during or immediately after a sexual crime such as Rape, Sexual Assault or Sexual Coercion there is no requirement to record a separate crime of Communicating Indecently.

This section applies to offences occurring on or after 1^st December 2010. It will not apply for relevant activity occurring before this date. Depending on the circumstances, a charge under the Communications Act 2003 may be appropriate in this case.

Where there is a mixed age group e.g. young children and older children, subjected to the conduct, the Young Child offence should be recorded.

Sexual Offences (Scotland) Act 2009, Section 24(1) Communicating Indecently with a Young Child

General Rule

One crime for each victim and continuity of action or per incident (as appropriate)

Definition

If a person (“A”) intentionally and for a purpose mentioned in subsection (3) –

(a) sends, by whatever means, a sexual written communication to, or

(b) directs, by whatever means, a sexual verbal communication at,

a child (“B”) who has not attained the age of 13 years, then A commits the offence of communicating indecently with a young child.

The purposes in subsection (3) are-

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

Victim

Child who has received the indecent communication

Locus

Where communication made from, if known, otherwise where received

Examples

Example 1

A young child under 13 years of age receives sexually explicit messages on social media from a known person with a view to distressing or alarming the child.

- 1 x Sexual Offences (Scotland) Act 2009, S24 (1), Communicating Indecently with a Young Child

Example 2

A parent and their young child under 13 years have each received the same text message of an indecent nature on their mobile phones. The messages have been sent by the same person, directly to the parent and the child.

- 1 x Sexual Offences (Scotland) Act 2009, S24 (1), Communicating Indecently with a Young Child (due to the Young Child offence being the most serious).

Purporting to be older-younger

Where a young child/older child purports to be older/younger than they are, the appropriate Section of the Act should relate to the actual age of the child and not the age they purport to be.

Example 3

A young child purports to be an adult and communicates over social media with an adult who believes the person they are communicating with is an adult, the communication being of a sexual nature.

- 1 x Sexual Offences (Scotland) Act 2009, S24 (1), Communicating Indecently with a Young Child

Example 4

An adult purports to be 12 year old and communicates over social media with an adult who believes the person they are communicating with is 12 years old, the communication being of a sexual nature.

- 1 x Sexual Offences (Scotland) Act 2009, S24 (1), Communicating Indecently with a Young Child – Attempt

Note

For the purposes of this section, a sexual communication can be either a written communication or a verbal communication:

a communication which comprises sounds of sexual activity (whether actual or simulated), and
a communication by means of sign language.

For the offence of Communicating Indecently with a Young Child to be committed, the accused must intend to communicate with the victim.

This section applies to all offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, the common law crime of Lewd and Libidinous Practices will apply or an offence under the Communications Act 2003.

Where there is a mixed age group e.g. young children and older children, subjected to the conduct, the Young Child offence should be recorded.

Sexual Offences (Scotland) Act 2009, Section 34(1) Communicating Indecently with an Older Child

General Rule

One crime for each victim and continuity of action or per incident (as appropriate)

Definition

If a person (“A”) who has attained the age of 16 years, intentionally and for a purpose mentioned in subsection (3), sends, by whatever means, a sexual written communication to or directs, by whatever means, a sexual verbal communication at, a child (“B”) who-

(a) has attained the age of 13 years, but

(b) has not attained the age of 16 years,

then A commits the offence of communicating indecently with an older child.

The purposes are-

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

Victim

Child who has received the indecent communication

Locus

Where communication made from, if known, otherwise where received

Examples

Example 1

The parents of an older child aged 13 to 15 years, find a sexually explicit text message on their phone. The child reported receiving the sexually explicit text message willingly on the mobile phone from an adult friend with the knowledge of the content.

- 1 x Sexual Offences (Scotland) Act 2009, S34 (1), Communicating Indecently with an Older Child

Example 2

An older child aged 13 to 15 years, receives an unwanted sexually explicit text message on the mobile phone from an adult who intended the child as the recipient for the purposes of causing distress.

- 1 x Sexual Offences (Scotland) Act 2009, S7 (1), Communicating Indecently

Example 3

An older child aged 13 to 15 years receives unwanted sexually explicit messages on their Social Networking Site from an adult intended to cause humiliation.

- 1 x Sexual Offences (Scotland) Act 2009, S7 (1), Communicating Indecently

Example 4

An older child aged 13 to 15 years receives sexually explicit messages on social media from an adult, the purpose being to carry on a sexual conversation between the older child and the adult, for which the adult is obtaining sexual gratification.

- 1 x Sexual Offences (Scotland) Act 2009, S7 (1), Communicating Indecently

Example 5

Parent and their child, aged 13 to 15 years, have been receiving unwanted text messages of an indecent nature on their mobile phones. The messages have been sent by the same adult to the adult's and child’s phones for the purpose of causing distress and humiliation.

- 1 x Sexual Offences (Scotland) Act 2009, S7 (1), Communicating Indecently (indicates sent with same purpose)

Example 6

Four persons acting together send indecent messages to an older child aged 13 to 15 years for the purposes of causing distress and humiliation.

- 1 x Sexual Offences (Scotland) Act 2009, S7 (1), Communicating Indecently

Note

For the purposes of this section, a sexual communication can be either a written communication or a verbal communication:

a communication which comprises sounds of sexual activity (whether actual or simulated), and
a communication by means of sign language.

For the offence of Communicating Indecently with an Older Child to be committed, the accused must intend to communicate with the victim.

This section applies to all offences occurring on or after 1^st December, 2010. This section applies to all offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, the common law crime of Lewd and Libidinous Practices or an offence under the Communications Act 2003 may apply.

In this section concerning ‘Older Children’, if the child consents to participate in the activities, it should be charged under the ‘Older Children’ section of the legislation. However if there is no consent to this at all, then Section 7 of the legislation should apply, as the penalties are greater.

Where there is a mixed age group e.g. young children and older children, subjected to the conduct, the Young Child offence should be recorded.

Sexual Offences (Scotland) Act 2009, Section 7(2) Causing a person to see or hear an Indecent Communication

General Rule

One crime for each victim and continuity of action or per incident (as appropriate)

Definition

If, in circumstances other than are as mentioned in subsection (1), a person (“A”), intentionally and for a purpose mentioned in subsection (3) causes another person (“B”) to see or hear, by whatever means, a sexual written communication or sexual verbal communication-

(a) without B consenting to seeing or as the case may be hearing it, and

(b) without any reasonable belief that B consents to seeing as the case may be hearing it,

then A commits the offence of causing a person to see or hear an indecent communication.

The purposes in subsection (3) are-

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

Victim

Person who has seen or heard the indecent communication

Locus

Where the indecent communication was seen or heard

Examples

Example 1

‘A’ reports that while sitting on a bus they are shown a sexually explicit text message by ‘B’ for the purpose of alarming or distressing ‘A’.

- 1 x Sexual Offences (Scotland) Act 2009, S7 (2), Causing another person to see or hear an Indecent Communication

Note

For the purposes of this section, a sexual communication can be either a written communication or a verbal communication:

a communication which comprises sounds of sexual activity (whether actual or simulated), and
a communication by means of sign language.

For the offence of Causing a Person to See or Hear an Indecent Communication, the accused must intend to communicate with the victim.

This section applies to offences occurring on or after 1^st December 2010. It will not apply for relevant activity occurring before this date. Depending on the circumstances, a Breach of the Peace or a charge under the Communications Act 2003 may be appropriate in this case.

Where there is a mixed age group e.g. young children and older children, subjected to the conduct, the Young Child offence should be recorded.

Sexual Offences (Scotland) Act 2009, Section 24(2) Causing a Young Child to see or hear an Indecent Communication

General Rule

One crime for each victim and continuity of action or per incident (as appropriate)

Definition

If, in circumstances other than are as mentioned in subsection (1), a person (“A”), intentionally and for a purpose mentioned in subsection (3) causes a child (“B”) who has not attained the age of 13 years to see or hear, by whatever means, a sexual written communication or sexual verbal communication then A commits an offence of causing a young child to see or hear an indecent communication. The purposes in subsection (3) are-

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

Victim

Child who has seen or heard the indecent communication

Locus

Where the indecent communication was seen or heard

Examples

Example 1 ‘A’ talks loudly to ‘B’ regarding graphic sexual content with the purpose of letting a young child under 13 years overhear the conversation, to cause distress to the young child.

- 1 x Sexual Offences (Scotland) Act 2009, S24 (2), Causing a Young Child to see or hear an Indecent Communication

Example 2 A young child under 13 years is shown a letter containing a sexual written communication by an older pupil at school to cause distress.

- 1 x Sexual Offences (Scotland) Act 2009, S24 (2), Causing a Young Child to see or hear an Indecent Communication.

Note

For the purposes of this section, a sexual communication can be either a written communication or a verbal communication:

a communication which comprises sounds of sexual activity (whether actual or simulated), and
a communication by means of sign language.

This section applies to all offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, the common law crime of Lewd and Libidinous Practices will apply.

Where there is a mixed age group e.g. young children and older children, subjected to the conduct, the Young Child offence should be recorded.

Sexual Offences (Scotland) Act 2009, Section 34(2) Causing an Older Child to see or hear an Indecent Communication

General Rule

One crime for each victim and continuity of action or per incident (as appropriate)

Definition

If, in circumstances other than are as mentioned in subsection (1), a person (“A”), who has attained the age of 16 years, intentionally and for a purpose mentioned in subsection (3) causes a child (“B”) who has attained the age of 13 years but not the age of 16 years, a sexual written communication or sexual verbal communication then A commits an offence of causing a young child to see or hear an indecent communication.

The purposes in subsection (3) are-

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

Victim

Child who has seen or heard the indecent communication

Locus

Where the indecent communication was seen or heard

Examples

Example 1

An older child aged 13 to 15 years is in a library sitting next to an adult where the adult writes sexually explicit poems in a notepad that can be seen by the child. The child communicates with the adult and the adult continues to write sexually explicit notes for sexual gratification.

- 1 x Sexual Offences (Scotland) Act 2009, S34 (2), Causing An Older Child to see or hear an Indecent Communication

Example 2

An older child aged 13 to 15 years is in a library when an adult intentionally causes the child to open a book where they have placed a sexually explicit piece of text to alarm the child.

- 1 x Sexual Offences (Scotland) Act 2009, S7 (2) - Causing another person to see or hear an Indecent Communication

Note

For the purposes of this section, a sexual communication can be either a written communication or a verbal communication:

a communication which comprises sounds of sexual activity (whether actual or simulated), and
a communication by means of sign language.

This section applies to all offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, the common law crime of Lewd and Libidinous Practices will apply.

In this section concerning ‘Older Children’, if there is consent from the child to participate in the activities, it should be charged under the ‘Older Children’ section of the legislation. However if there is no consent to this at all, then Section 7(2) of the legislation should apply, as the penalties are greater.

Where there is a mixed age group e.g. young children and older children, subjected to the conduct, the Young Child offence should be recorded.

Sexual Offences (Scotland) Act 2009, Section 8 Sexual Exposure

General Rule

One crime for each incident of course of conduct

Definition

If a person (“A”) –

(a) without another person (“B”) consenting, and

(b) without any reasonable belief that B consents,

intentionally and for a purpose mentioned in subsection (2), exposes A’s genitals in a sexual manner to B with the intention that B will see them, then A commits the offence of sexual exposure.

The purposes are-

(a) obtaining sexual gratification

(b) humiliating, distressing or alarming B.

Victim

Person who was seen the sexual exposure

Locus

Where crime takes place

Examples

Example 1

A report is received that a naked person is standing at a window of a house watching passers-by.

- 1 x Public Indecency

Example 2

A report is received that a naked person is standing at a window of a house in full view of adult passers-by knowing they are being watched.

- 1 x Sexual Offences (Scotland) Act 2009, S8, Sexual Exposure

Example 3

Person reports that they were in a park with their older child aged 13 to 15 years when a male exposed his penis to them and started masturbating.

- 1 x Sexual Offences (Scotland) Act 2009, S5, Coerce person to be present during sexual activity. (Suspect has intentionally engaged in a sexual activity in the presence of both victims who have been caused to view this activity without their consent).

Example 4

A male sits next to an adult female on a park bench, exposes his penis and starts masturbating.

- 1 x Sexual Offences (Scotland) Act 2009, S5, Coerce person to be present during sexual activity. (Suspect has intentionally engaged in a sexual activity in the presence of the victim who has been caused to view this activity without their consent).

Example 5

A male sits next to a young female (over 16 years) on a bus. During the journey the male exposes his penis and starts masturbating, he then grabs the female's hand and forces her to touch his penis and after she draws her hand away he touches her breasts over her clothing. The girl is scared and makes no mention of this to any other passenger or the bus driver. The matter is reported to police when she arrives homes.

- 1 x Sexual Offences (Scotland) Act 2009, S5, Coerce person to be present during sexual activity

- 1 x Sexual Offences (Scotland) Act 2009, S3, Sexual Assault

Example 6

During the course of an afternoon male exposes his genitals to three different people at three different locations.

- 3 x Sexual Offences (Scotland) Act 2009, S8, Sexual Exposure (three separate incidents)

Note

There must be exposure “in a sexual manner” for this offence. This is different from public indecency which is concerned with “public order” actions such as urinating in the street or sunbathing in the nude. The exposure must also be intentional. If the exposure by the suspect includes behaviour where the suspect intentionally engages in a sexual act in the presence of another person, e.g. masturbating, without their consent this amounts to a crime of "Causing a person into being present during a sexual activity" which is recordable under Sections 5 or 22 (depending on the age of the victim) and not a crime of Sexual Exposure. The Section 32 (older child) crime is not applicable if the conduct was non-consensual.

Unlike the offence of public indecency, which requires that the conduct takes place in, or can be seen from, a public place, the offence of sexual exposure can be committed in a private place, providing that the perpetrator’s intention in exposing his or her genitals is either for obtaining sexual gratification or distress, humiliate or cause alarm to their victim.

This section applies to offences occurring on or after 1^st December, 2010. It will not apply for relevant activity occurring before this date. Depending on the circumstances, a charge of public indecency may be appropriate in this case.

Where there is a mixed age group e.g. young children and older children, subjected to the conduct, if it cannot be evidenced that the conduct was directed towards a specific age group, then the offence relating to the lowest age group present should be recorded.

Sexual Offences (Scotland) Act 2009, Section 25 Sexual Exposure to a Young Child

General Rule

One crime for each incident or course of conduct

Definition

If a person (“A”) intentionally and for a purpose mentioned in subsection (2), exposes A’s genitals in a sexual manner to a child (“B”) who has not attained the age of 13 years, with the intention that B will see them, then A commits the offence of sexual exposure to a young child.

The purposes are-

(a) obtaining sexual gratification

(b) humiliating, distressing or alarming B.

Victim

Child who has seen the sexual exposure

Locus

Where crime takes place

Examples

Example 1

Two young children under 13 years of age are invited into a dwelling house, where an adult exposes their genitals for the purpose of sexual gratification.

- 1 x Sexual Offences (Scotland) Act 2009, S25, Sexual Exposure to a Young Child (one crime, two victims)

Example 2

An adult intentionally exposes their genitals for the purpose of sexual gratification to a large number of young children aged under 13 years who are together in a play park.

- 1 x Sexual Offences (Scotland) Act 2009, S25 Sexual Exposure to a Young Child (Numerous Victims)

Where it cannot be inferred that the purpose was for sexual gratification, humiliating, distressing or alarming the children then it would be a crime of Public Indecency

Example 3

A young child under 13 years of age disturbs a male urinating in a nearby street, exposing his penis and clearly in a drunken state.

- There is no intention to act in a sexual manner or for gratification.

Note

This section applies to offences occurring on or after 1^st December 2010. If the offence occurred prior to this date, the common law crime of Lewd and Libidinous Practices or a crime of public indecency will apply.

Where is a mixed age group e.g. young children and older children, subjected to the conduct, if it cannot be evidenced that the conduct was directed towards a specific age group, then the offence relating to the lowest age group present should be recorded.

Sexual Offences (Scotland) Act 2009, Section 35 Sexual Exposure to an Older Child

General Rule

One crime for each incident or course of conduct

Definition

If a person (“A”) who has attained the age of 16 years, intentionally and for a purpose mentioned in subsection (2), exposes A’s genitals in a sexual manner to a child (“B”) who-

(a) has attained the age of 13 years, but

(b) has not attained the age of 16 years,

with the intention that B will see them, then A commits the offence of sexual exposure to an older child.

The purposes are-

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

Victim

Child who has seen the sexual exposure

Locus

Where crime takes place

Examples

Example 1

An older child aged 13 to 15 walks along a path when an adult male jumps out exposing his genitals and starts masturbating in front of the child.

- 1 x Sexual Offences (Scotland) Act 2009, S5, Coerce person to be present during sexual activity (suspect has intentionally engaged in a sexual activity in the presence of the victim who has been caused to view this activity without consent).

Example 2

An older child aged 13 to 15 years reports that they disturbed an adult male urinating in the street, exposing his penis and clearly in a drunken state.

- There is no intention to act in a sexual manner or for gratification.

Example 3

Two older children aged 13 to 15 report that they were sitting in the park when an adult male exposed his penis to them and caused them alarm.

- 1 x Sexual Offences (Scotland) Act 2009, S35, Sexual Exposure to an Older Child (One crime, two victims).

Example 4

A parent and an older child aged 13 to 15 walk along a path when an adult male jumps out exposing his genitals and starts masturbating in front of the parent and older child.

- 1 x Sexual Offences (Scotland) Act 2009, S5, Coerce person to be present during sexual activity (suspect has intentionally engaged in a sexual activity in the presence of both victims who have been caused to view this activity without their consent).

Example 5

Adult male corresponds with 14 year old female by social media and builds up a conversation, eventually working up to speaking to her direct. During the chat he persuades her to switch on her camera so that he can see her. He engages in flirtatious conversation, eventually escalating to asking her to undress for him, which she refuses to do. He then moves his camera down to show her his erect penis and he masturbates in front of her. She switches off the computer.

- 1 x Sexual Offences (Scotland) Act 2009, S33, Cause an Older Child to look at a Sexual Image (if consensual)

- 1 x Sexual Offences (Scotland) Act 2009, S34 (1), Communicating Indecently with an Older Child (if consensual).

- If neither were consensual Sections 6 and 7 would apply.

Note

Sexual Offences (Scotland) Act 2009, Section 9 Voyeurism

General Rule

One crime for each incident or course of conduct

Definition

A person (“A”) commits an offence of voyeurism if A does any of the following things for a purpose mentioned in subsection (6), without B consenting and without any reasonable belief that B consents;

(1) Observes B doing a private act.

(2) Operates equipment with the intention of enabling A or another person (“C”), to observe B doing a private act.

(3) Records B doing a private act with the intention that A or another person (“C”), will look at an image of B doing the act.

(4A) Operates equipment beneath B's clothing with the intention of enabling A or another person (“C”), to observe B's genitals or buttocks (whether exposed or covered with underwear) or the underwear covering B's genitals or buttocks, in circumstances where the genitals, buttocks or underwear would not otherwise be visible.

(4B) Records an image beneath B's clothing of B's genitals or buttocks (whether exposed or covered with underwear) or the underwear covering B's genitals or buttocks, in circumstances where the genitals, buttocks or underwear would not otherwise be visible, with the intention that A or another person (“C”), will look at the image.

(5) Installs equipment, or constructs or adapts a structure or part of a structure, with the intention of enabling A or another person to do any of the above acts.

(6) The purposes are:

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

Victim

Person who has been observed

Locus

Where crime takes place

Examples

Example 1

A person enters a public toilet and by looking underneath a toilet cubicle, observes another adult using the lavatory.

- 1 x Sexual Offences (Scotland) Act 2009, S9, Voyeurism

Example 2

A person installs a camera in public changing rooms, which allows the person to view three adults in cubicles getting dressed.

- 1 x Sexual Offences (Scotland) Act 2009, S9, Voyeurism

Example 3

A person installs 3 cameras, all in individual changing rooms within a sports centre, allowing the person to view a number of adults in each of the cubicles getting dressed.

- 1 x Sexual Offences (Scotland) Act 2009, S9, Voyeurism

Example 4

‘A’ drills a hole in the wall of flatmate ‘B’ which ‘A’ uses to record video footage allowing a friend ‘C’ to view ‘B’ engaging in sexual intercourse with their partner.

- 1 x Sexual Offences (Scotland) Act 2009, S9, Voyeurism

Example 5

A person walks along a High Street in a busy city centre, recording images up the skirts of any passing person and captures multiple images of ‘up skirt’ footage.

- 1 x Sexual Offences (Scotland) Act 2009, S9, Voyeurism

Example 6

'A' and 'B' have sexual intercourse in private which is recorded by a video camera set up by 'A' without the knowledge of 'B'.

- 1 x Sexual Offences (Scotland) Act 2009, S9, Voyeurism

Note

A person is deemed to be doing a private act if the person is in a place which in the circumstances would reasonably be expected to provide privacy and-

(a) the person’s genitals, buttocks or breasts are exposed or covered only with underwear,

(b) the person is using a lavatory, or

This section applies to offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, a Breach of the Peace would be appropriate.

If there are distinct and separate occasions, such as periods where the camera was removed, then each time it is placed back in the locus, a separate crime would be recorded.

Sexual Offences (Scotland) Act 2009, Section 26 Voyeurism towards a Young Child

General Rule

One crime for each incident or course of conduct

Definition

A person (“A”) commits the offence of voyeurism towards a young child if A does any of the following things for a purpose mentioned in subsection (6) in relation to a child (“B”) who has not attained the age of 13 years:

(1) Observes B doing a private act.

(2) Operates equipment with the intention of enabling A or another person (“C”) to observe B doing a private act.

(3) Records B doing a private act with the intention that A or another person (“C”), will look at an image of B doing the private act.

(5) Installs equipment or constructs or adapts a structure or part of a structure with the intention of enabling A or another person to do any of the above acts.

(6) The purposes are:

(a) obtaining sexual gratification

(b) humiliating, distressing or alarming B

Victim

Young child who has been observed

Locus

Where crime takes place

Examples

Example 1

A teacher at a primary school installs a camera in the changing rooms, which allows them to view young children getting changed. It is established that 30 children have been filmed in their underwear, for the purpose of the teacher’s sexual gratification.

- 1 x Sexual Offences (Scotland) Act 2009, S26, Voyeurism towards a Young Child, with 30 victims (there is no requirement to record a separate Civic Government (Scotland) Act 1982, S52 offence in relation to this conduct unless further criminality is identified, e.g. search of home computer reveals indecent images of children indicating the images have been downloaded on to a separate device, or that the images have been distributed).

Example 2

An adult enters a public toilet within a shopping centre and by looking over the toilet cubicle, observes a young child under the age of 13 years using the lavatory.

- 1 x Sexual Offences (Scotland) Act 2009, S26 Voyeurism towards a Young Child.

Note

A person is deemed to be doing a private act if the person is in a place which in the circumstances would reasonably be expected to provide privacy and-

(a) the person’s genitals, buttocks or breasts are exposed or covered only with underwear,

(b) the person is using a lavatory, or

Young children are not considered capable in law of giving consent to sexual activity and accordingly it is irrelevant whether or not the child has given permission for the person to view them or record them.

This section applies to all offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date Breach of the Peace may have been libelled.

Sexual Offences (Scotland) Act 2009, Section 36 Voyeurism towards an Older Child

General Rule

One crime for each incident or course of conduct

Definition

If a person (“A”) who has attained the age of 16 years, does any of the following things for a purpose mentioned in subsection (6) in relation to a child (“B”) who-

(a) has attained the age of 13 years, but

(b) has not attained the age of 16 years,

then A commits the offence of voyeurism towards an older child.

Those things are;

(1) Observes B doing a private act.

(2) Operates equipment with the intention of enabling A or another person (“C”) to observe B doing a private act.

(3) Records B doing a private act with the intention that A or another person (“C”), will look at an image of B doing the private act.

(5) Installs equipment or constructs or adapts a structure or part of a structure with the intention of enabling A or another person to do any of the above acts

(6) The purposes are-

(a) obtaining sexual gratification,

(b) humiliating, distressing or alarming B.

Victim

Child(ren) who have been observed

Locus

Where crime takes place

Examples

Example 1

An employee at a secondary school installs a camera in the changing rooms, which allows them to view children getting changed. It is established that a number of “older children aged 13 to 15 years have been filmed in their underwear.

- 1 x Sexual Offences (Scotland) Act 2009, S36, Voyeurism towards an Older Child.

Example 2

An adult enters a public toilet within a shopping centre and by looking over the toilet cubicle, observes an older child aged 13 to 15 years using the lavatory.

- 1 x Sexual Offences (Scotland) Act 2009, S36, Voyeurism towards an Older Child.

Note

This section applies to all offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, Breach of the Peace may be appropriate.

A person is deemed to be doing a private act if the person is in a place which in the circumstances would reasonably be expected to provide privacy and-

(a) the person’s genitals, buttocks or breasts are exposed or covered only with underwear,

(b) the person is using a lavatory, or

If there are distinct and separate occasions, such as periods where the camera was removed, then each time it is placed back in the locus, a separate crime would be recorded.

Sexual Offences (Scotland) Act 2009, Section 11 Administering a substance for Sexual Purposes

General Rule

One crime for each victim

Definition

If a person (“A”) intentionally administers a substance to, or causes a substance to be taken by, another person (“B”)-

(a) without B knowing, and

(b) without any reasonable belief that B knows,

and does so for the purpose of stupefying or overpowering B, so as to enable any person to engage in a sexual activity which involves B, then A commits the offence of administering a substance for sexual purposes.

Victim

Person who has taken the substance

Locus

Where substance is administered

Examples

Example 1

‘A’ is in a bar drinking with friends when ‘B’ adds a drug to their drink, helps ‘A’ out the premises into a nearby alleyway where ‘B’ intends to have sexual intercourse with ‘A’. ‘B’ is stopped before any sexual assault occurs.

- 1 x Sexual Offences (Scotland) Act 2009, S11, Administering a substance for Sexual Purposes.

Example 2

‘A’ is in a bar drinking with friends when ‘B’ adds a drug to their drink, helps ‘A’ out the premises into a nearby alleyway where ‘B’ has sexual intercourse with ‘A’.

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

- 1 x Sexual Offences (Scotland) Act 2009, S11, Administering a substance for Sexual Purposes.

Note – prior to December 2010 this would have been recorded as a crime of common law Rape with the drugging aspect forming part of the Rape conduct.

Example 3

‘A’ is in a bar drinking with friends when they suddenly feels very ill and have to be taken home. A friend phones the police who take a urine sample which is tested positive for GHB.

- 1 x Assault (with a Drugging offence modifier). Unless it can be inferred that the drugs were administered for the purpose of stupefying or overpowering for a sexual purpose.

Note

This section applies to offences occurring on or after 1st December, 2010.

If A, whether by act or omission, induces in B a reasonable belief that the substance administered or taken is (either or both)-

(a) of a substantially lesser strength, or

(b) in a substantially lesser quantity,

than it is, any knowledge which B has (or belief as to knowledge which B has) that it is being administered or taken is to be disregarded.

Sexual Offences (Scotland) Act 2009, Section 37(1) and 37(4) Engaging while an Older Child in Sexual Conduct with or towards another Older Child

General Rule

One crime for each participant

Definition

(1) If a person (“A”), being a child who has attained the age of 13 years but not the age of 16 years, does any of the things mentioned below, “B” being in each case a child who has also attained the age of 13 years but not the age of 16 years, then A commits the offence of engaging with an older child in sexual conduct with or towards another older child.

Those things are that A-

(a) penetrates sexually, with A’s penis 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 the vagina, anus or penis of B sexually with A’s mouth.

(4) In the circumstances specified above, if "B" engages by consent in the conduct in question, then "B" commits an, to be known as the offence of engaging while an older child in consensual sexual conduct with another older child.

Complainer

Procurator Fiscal (Participant can be recorded as a witness)

Locus

Where crime takes place

Examples

Example 1

An older child ‘A’ aged 13 to 15 years discloses that he had consensual sexual intercourse on a number of occasions with his female partner ‘B’, who is also aged 13 to 15 years.

- 1 x Sexual Offences (Scotland) Act 2009, S37 (1) – male suspect and female victim

- 1 x Sexual Offences (Scotland) Act 2009, S37 (4) – female suspect and male victim

Example 2

An older child aged 13 to 15 years discloses that they performed oral sex on their partner who is also an older child aged 13 to 15 years, both of which consented fully.

- 1 x Sexual Offences (Scotland) Act 2009, S37 (1) – male suspect and female victim

- 1 x Sexual Offences (Scotland) Act 2009, S37 (4) – female suspect and male victim

Example 3

An older female child aged 13 to 15 years discloses that they had consensual sexual intercourse with a 16 year old male.

- 1 x Sexual Offences (Scotland) Act 2009, S28, Sexual intercourse with an Older Child

Example 4

‘A’ and ‘B’, both 12 years old enter into a consensual sexual relationship resulting in sexual intercourse taking place on a number of occasions. Enquiry concludes that there are no concerns that either has been the dominant party.

- The provisions of Sexual Offences (Scotland) Act 2009, Section 37 do not apply to “younger children”. Whilst children under 12 cannot consent, since both parties are 12 years old and enquiry has not identified any specific concerns such as imbalance of power, dominant party etc. to suggest that one party is responsible, no crime would require to be recorded. Where there are concerns then an appropriate Sexual Offences (Scotland) Act 2009 offence should be recorded.

Note

Although the wording of this section suggests that it would also cover non-consensual conduct, it is more appropriate that such conduct should be recorded as rape, sexual assault by penetration or sexual assault.

This section applies to all offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, the common law crime of Lewd and Libidinous Practices may apply.

Reference should be made to the guidelines of the Lord Advocate for this offence type. If the reported circumstances do not meet the criteria laid down by these guidelines for jointly reporting an accused there is no requirement for a crime to be recorded.

Sexual Offences (Scotland) Act 2009, Section 42 Sexual Abuse of Trust (Children)

General Rule

One crime for each victim

Definition

If a person (“A”) who has attained the age of 18 years-

(a) intentionally engages in a sexual activity with or directed towards another person (“B”) who is under 18, and

(b) is in a position of trust in relation to B,

then A commits the offence of sexual abuse of trust

Note - This section of the legislation is aimed at children aged 16 or 17 years of age.

Victim

Child over whom the suspect/accused had a position of trust

Locus

Where crime takes place

Examples

Example 1

An employee at a secure accommodation facility has consensual sexual intercourse with a resident who is aged 16. The employee has regular sole charge for the resident and is responsible for their care.

- 1 x Sexual Offences (Scotland) Act 2009, S42, Sexual Abuse of Trust

Example 2

A teacher touches a 17 year old student in a sexual manner, to which the student consented.

- 1 x Sexual Offences (Scotland) Act 2009, S42, Sexual Abuse of Trust

Example 3

A child aged 13 to 15 years stated that their stepfather had sexual intercourse with them without consent.

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

Example 4

A teacher has consensual sexual intercourse with a 16 year old student.

- 1 x Sexual Offences (Scotland) Act 2009, S42, Sexual Abuse of Trust

Example 5

A teacher has sexual intercourse with a 16 year old student which is non-consensual.

- 1 x Sexual Offences (Scotland) Act 2009, S1 Rape

Example 6

A teacher has sexual intercourse with a 14 year old student which is consensual.

- 1 x Sexual Offences (Scotland) Act 2009, S28 Sexual Intercourse with an Older Child (while Section 42 covers all persons under 18, it is principally designed to protect young people aged 16 and 17 who, even though they are over the age of consent for sexual activity, are vulnerable to sexual exploitation from particular classes of people who hold a position of trust or authority in relation to them. Since the victim is aged 14 and Section 28 is an offence in its own right there is no requirement to record a separate offence under Section 42).

Example 7

‘A’ reports that in 1994 when they were 16 years old they entered in a consensual sexual relationship with their teacher which ended when they left school and moved away to go to university when they were 17/18 years old.

- Given the age of ‘A’ and no relevant legislation in place at the material time with regard to a position of trust no crime requires to be recorded.

Note

This offence covers both circumstances where a sexual abuse of trust occurs in a family setting and where it is committed by a person who has a position of trust over a child in their care i.e. a school, residential institution or a hospital.

A person (“A”) is deemed to be in a position of trust in relation to another person (“B”) if any of the following five conditions are fulfilled:

(1) B is detained by virtue of a court or under an enactment in an institution and A looks after persons under 18 in that institution.

(2) B is resident in a home or other place in which accommodation is provided by a local authority under Section 26(1) of the Children (Scotland) Act 1995 and A looks after persons under 18 in that place.

(3) B is accommodated and cared for in-

(a) a hospital,

(b) accommodation provided by an independent health care service

(d) a residential establishment, or

(e) accommodation provided by a school care accommodation service or a secure accommodation service,

and A looks after persons in that place.

(4) B is receiving education at-

(a) a school and A looks after persons under 18 in that school, or

(b) a further or higher education institution and A looks after B in that institution

(5) The fourth condition is that A-

(a) has any parental responsibilities or parental rights in respect of B,

(b) fulfils any such responsibilities or exercises any such rights under arrangement with a person who has such responsibilities or rights,

(d) treats B as a child of A’s family.

A looks after a person for the purposes of this section if A regularly cares for, teaches, trains, supervises or is in sole charge of the person.

This section applies to all offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, an offence under Section 3 of the Criminal Law (Consolidation) (Scotland) Act 1995 or Section 3 of the Sexual Offences (Amendment) Act 2000 will be appropriate.

Prior to the introduction of the Sexual Offences (Scotland) Act 2009 the Criminal Law (Consolidation) (Scotland) Act 1995 Section 3 provided an offence for a person over the age of 16 to have sexual intercourse with a person under the age of 16 if he is a member of the same household as the child and is in a position of trust or authority in relation to the child.

The Sexual Offences (Amendment) Act 2000, Section 3 provided that it was 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, other than in a family setting. “Position of trust” is defined so as to include persons looking after the child in a residential establishment of any kind (including a care home, young offender’s institute, etc.), a hospital or an educational establishment.

The Mental Health (Care and Treatment) (Scotland) Act 2003 Section 313 provided that it was an offence for a person to engage in sexual activity with a mentally disordered person where he or she is providing care services in respect of that other person).

Sexual Offences (Scotland) Act 2009, Section 46 Sexual Abuse of Trust of a Mentally Disordered Person

General Rule

One crime for each victim

Definition

(1) If a person (“A”) –

(a) intentionally engages in sexual activity with or directed towards a mentally disordered person (“B”), and

(b) is a person mentioned in subsection (2),

then A commits the offence of sexual abuse of trust of a mentally disordered person.

(2) Those persons are –

(a) a person providing care services to B,

(b) a person who –

(i) is an individual employed in, or contracted to provide services in or to, or

(ii) not being the Scottish Ministers, is a manager of,

a hospital, independent health care service or state hospital in which B is being given medical treatment.

Victim

Mentally disorder person over whom the accused/suspect had a position of trust

Locus

Where crime takes place

Examples

Example 1

A care worker 'A' provides a car service for 'B' who has learning difficulties. 'A' has sexual intercourse with 'B' which is consensual and to which 'B' has the capacity to consent.

- 1 x Sexual Offences (Scotland) Act 2009, S46 Sexual Abuse of Trust of a Mentally Disordered Person.

Example 2

A mentally disordered person who due to their disorder is not capable of giving consent to sexual activities, discloses to a social worker that their care worker had sexual intercourse with them.

- 1 x Sexual Offences (Scotland) Act 2009, S1 Rape

Note

This offence applies to persons with a mental disorder, regardless of whether that mental disorder negates their ability to consent to sexual conduct.

Where a person’s mental disorder negates the ability to consent, then this would be an offence under Sections 1, 2 or 3 of the Act, or one of the Younger Children Offences.

This section applies to all offences occurring on or after 1^st December, 2010. If the offence occurred prior to this date, an offence under Section 313 of the Mental Health (Care and Treatment) (Scotland) Act 2003 or Section 3 of the Sexual Offences (Amendment) (Scotland) Act 2000, may apply.

Other Sexual Crimes Abusive Behaviour and Sexual Harm (Scotland) Act 2012, Section 2 Disclosing, or threatening to disclose, an intimate photograph or film

16/039 - Threatening to disclose an intimate image

16/040 - Disclosure of an intimate image

General Rule

One crime for each victim and continuity of action or per incident (as appropriate)

Definition

Section 2 - Disclosing, or threatening to disclose, an intimate photograph or film

(1) A person (“A”) commits an offence if—

(a) A discloses, or threatens to disclose, a photograph or film which shows, or appears to show, another person (“B”) in an intimate situation,

(b) by doing so, A intends to cause B fear, alarm or distress or A is reckless as to whether B will be caused fear, alarm or distress, and

(c) the photograph or film has not previously been disclosed to the public at large, or any section of the public, by B or with B’s consent.

(2) For the purposes of this section, a photograph or film is disclosed if it, or any data or other thing which is capable of being converted into it, is given, shown or made available to a person other than B.

Section 3 - Interpretation of section 2

(1) For the purposes of section 2, a person is in an “intimate situation” if—

(a) the person is engaging or participating in, or present during, an act which—

(i) a reasonable person would consider to be a sexual act, and

(ii) is not of a kind ordinarily done in public, or

(b) the person’s genitals, buttocks or breasts are exposed or covered only with underwear.

(2) In section 2—

“film” means a moving image in any form, whether or not the image has been altered in any way, that was originally captured by making a recording, on any medium, from which a moving image may be produced, and includes a copy of the image,

“photograph” means a still image in any form, whether or not the image has been altered in any way that was originally captured by photography, and includes a copy of the image.

Victim

Person who has received threat or whose intimate image has been disclosed

Locus

Threats - where threat made, if known, otherwise where received

Disclosure - where image disclosed, if known, otherwise victim’s home address

Examples

Example 1

Intimate images are exchanged consensually between 'A' and 'B' who are both adults. 'B' sends the images to 'C' causing alarm to 'A' and causing 'C' to be alarmed when images are received.

- 1 x Abusive Behaviour and Sexual Harm (Scotland) Act 2016, S2 (disclose intimate image)

- 1 x Sexual Offences (Scotland) Act 2009, S6 (if images meet criteria for “Sexual”) for sending the images.

Example 2

Intimate images are exchanged consensually between 'A' and 'B' who are both aged 14. 'B' sends the images to 'C' (also 14) causing alarm to 'A' and causing 'C' to be alarmed when the images are received.

- 1 x Abusive Behaviour and Sexual Harm (Scotland) Act 2016, S2 (disclose intimate image)

- 1 x Civic Government (Scotland) Act 1982, S52 (1) (b), Distribute indecent image of a child

- 1 x Sexual Offences (Scotland) Act 2009, S6 (if images meet criteria for “Sexual”) for sending the images

Example 3

Intimate images are exchanged consensually between 'A' and 'B' who are both adults. 'B' threatens to expose the images of 'A' on social media if further images are not sent. 'A' complies and sends further images to 'B'.

- 1 x Abusive Behaviour and Sexual Harm (Scotland) Act 2016, S2 (threat to disclose intimate image)

- 1 x Sexual Offences (Scotland) Act 2009, S4, Cause to participate in a Sexual Act (for causing 'A' to participate in a sexual act by taking naked photographs of themselves).

Example 4

- 1 x Abusive Behaviour and Sexual Harm (Scotland) Act 2016, S2 (threat to disclose intimate image)

- 1 x Sexual Offences (Scotland) Act 2009, S4, Cause to participate in a Sexual Act (for causing 'A' to participate in a sexual act by taking naked photographs of themselves)

- 1 x Abusive Behaviour and Sexual Harm (Scotland) Act 2016, S2 (disclose intimate image)

Example 5

'A' and 'B' who are both adults engage in a sexual act which is filmed by 'C' without their permission and is later disclosed by 'C' on social media.

- 1 x Sexual Offences (Scotland) Act 2009, S9, Voyeurism

- 1 x Abusive Behaviour and Sexual Harm (Scotland) Act 2009, S2 (disclose intimate image)

Example 6

Intimate images are exchanged consensually between 'A' and 'B' who are both adults. 'B' shows the images of 'A' to 'C'. 'C' advises 'A' that they have seen the images which causes alarm to 'A'.

- 1 x Abusive Behaviour and Sexual Harm (Scotland) Act 2009, S2 (disclose intimate image)

Example 7

Intimate images are exchanged consensually between 'A' and 'B'. 'B' threatens to expose the images of 'A' on social media if 'A' does not agree to have sexual intercourse with 'B'. 'A' succumbs to the threat and has sexual intercourse with 'B'.

- 1 x Abusive Behaviour and Sexual Harm (Scotland) Act 2016, S2 (threat to disclose intimate image)

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

Example 8

Female 'A' is sunbathing topless in their enclosed garden when 'B' leans over the fence and takes a photograph of 'A' without their knowledge. 'B' shouts over to 'A' that they are going to post the image on social media. Police confirm that photograph was taken by 'B'.

- 1 x Sexual Offences (Scotland) Act 2009, S9, Voyeurism

- 1 x Abusive Behaviour and Sexual Harm (Scotland) Act 2016, S2 (threat to disclose intimate image)

Example 9

'B' sends a request (visual) to 'A' (both adults) over social media which 'A' accepts. When 'B' appears on the screen they are seen to be naked and masturbating and encourages 'A' to do likewise which 'A' does. 'B' then terminates the visual contact and sends a message to 'A' with a link to a recording of 'A' masturbating stating that unless they send them money the recording will be distributed to 'As' friends and family. 'A' sends money and the recording is not distributed.

- 1 x Sexual Offences (Scotland) Act 2009, S9, Voyeurism

- 1 x Extortion (due to demand for money)

Example 10

‘A’ logs into their social media account and discovers that someone has gained access and posted a number of indecent photographs of them which were not previously in the public domain.

- 1 x Abusive Behaviour and Sexual Harm (Scotland) Act 2016, S2 (disclose intimate image)

- 1 x Computer Misuse Act 1990, S2 (unauthorised access with intent to commit further offences)

Example 11

'A' receives a 'friend request' on social media from 'B' who they do not know and accepts. 'B' threatens to circulate indecent images of 'A' if they do not send indecent photos. 'A' knows there are no indecent images to be circulated and blocks 'B'.

- 1 x Communications Act 2003, S127 (Sexual) - (since ‘A’ is aware there are no indecent images the threat cannot be followed through therefore an offence under Abusive Behaviour and Sexual Harm (Scotland) Act 2016 or Attempted Extortion would not be relevant).

Example 12

‘A’ receives a message from ‘B’ advising that they are going to post indecent images of them on social media, no demand is made and ‘A’ is aware that previous partners may well have indecent images of them.

- 1 x Abusive Behaviour and Sexual Harm (Scotland) Act 2016, S2 (threat to disclose intimate image)

Example 13

‘A’ obtains an indecent image of an unknown person from the internet onto which they superimposes the head of ‘B’ before distributing to others.

- 1 x Abusive Behaviour and Sexual Harm (Scotland) Act 2016, S2 (disclose intimate image) - legislation covers photos which have been altered.

Note

It is recognised that any threat to disclose an intimate image which is accompanied by an element of person gain on the part of the person making the threat could be considered as a crime of Extortion. The following guidelines should be considered:

a threat to disclose is made where the demand is for money or valuables - record Extortion.
a threat to disclose is made where the demand is of a physical sexual nature - record Abusive Behaviour and Sexual Harm (Scotland) Act 2016, Section 2 plus any relevant physical sexual crime if the victim complies with the demand.
a threat to disclose is made where the demand is for further sexual images - record Abusive Behaviour and Sexual (Scotland) Act 2016, Section 2 plus any relevant sexual crime if the victim complies with the demand.

16/000 - Assault - Indecent

General Rule

One crime for each victim and where specific dates and/or loci are identified separate crimes to be recorded

Definition

Every attack directed to take effect physically on the person of another is assault, whether or not actual injury is inflicted.

Indecent assault is not a specific crime, it is assault accompanied by indecency.

Victim

Person subject of assault

Locus

Where crime takes place

Examples

Example 1

An 11 year old girl is touched between the legs by an adult. This occurred prior to 1 December 2010.

- 1 x Lewd and Libidinous Practices and Behaviour (due to the age of the victim this should not be recorded as Indecent Assault).

Example 2

A report is received that in 2003 when the victim was 14 years old they moved in to be looked after by their aunt who was 30 years old at the time. Within months of moving in they engaged in a penetrative sexual relationship.

- 1 x Assault (Indecent) – there would be no expectation for Incest to be recorded given the age difference and imbalance of power.

Note

With the introduction of the Sexual Offences (Scotland) Act, 2009, Sexual Assault will most likely be recorded, as opposed to Assault (indecent).

Sexual activity (excluding Rape) where the victim is a girl of or above the age of 12 years and under the age of 16 years should be recorded as a crime of Lewd, Indecent and Libidinous Practices per Criminal Law (Consolidation) (Scotland) Act 1995, Section 6.

Sexual activity (excluding Rape/Sodomy) where the victim is a boy under 14 years and a girl under 12 years of age should be recorded as Lewd, Indecent and Libidinous Practices (Common Law).

18/021 - Bestiality

General Rule

One crime for each accused

Definition

A human being having carnal connection with any of the lower animals.

Complainer

Procurator Fiscal

Locus

Where crime takes place

Examples

Example 1

A man is found in a field having sex with a sheep.

- 1 x Bestiality

Note

The lower animals include:

cattle;
sheep;
pigs;
goats;
horses;
poultry;
domestic birds;
domestic rabbits;
domestic dogs;
domestic cats;
pets and kept animals;
captive birds.

18/010 - Civic Government (Scotland) Act 1982, Section 46 Prostitution

General Rule

One crime for each accused

Definition

A prostitute (whether male or female) who for the purposes of prostitution loiters in a public place; solicits in a public place or in any other place so as to be seen from a public place; or importunes any person who is in a public place.

Complainer

Procurator Fiscal

Locus

Where crime takes place

Examples

Example 1

A known prostitute (having previously been warned on two occasions or reported to PF) is found soliciting in a public area.

- 1 x Civic Government (Scotland) Act 1982, S46

Example 2

Person found loitering in a public place for the purpose of prostitution. Checks confirm that this is the first time the suspect has come to the attention of Police for this type of behaviour.

- Note as a First Street Warning - no crime should be recorded.

Note

The Lord Advocate's Guidelines to Chief Constables on the Enforcement of Prostitution Related Offences issued in October, 2007 outlines that "It remains the case that offences which apply to sellers can only be committed by 'a prostitute' and, as such, a pre-requisite for the prosecution of sellers is that the accused has received at least two police warnings (whether formal or informal)" and, "Where an offender has been the subject of direct measures on at least two previous occasions, consideration should be given to the submission of a report to the Procurator Fiscal on the third or any subsequent occasion.

A crime will only be recorded in circumstances where a person is reported to the Procurator Fiscal. If a person is warned no crime will be recorded.

18/018 - Civic Government (Scotland) Act 1982, Section 52 Taking, distribution, possession, publish etc. indecent photos of children

General Rule

One crime for each accused or group of accused where appropriate

Definition

Section 52A (1)

It is an offence for a person to have any indecent photograph or pseudo-photograph of a child in his possession.

Section 52

Any person who -

(a) takes, or permits to be taken or makes, any indecent photograph or pseudo-photograph of a child;

(b) distributes or shows such an indecent photograph or pseudo-photograph;

(c) has in his possession such an indecent photograph or pseudo-photograph with a view to its being distributed or shown by himself or others; or

(d) publishes or causes to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such an indecent photograph or pseudo-photograph, or intends to do so,

shall be guilty of an offence.

Complainer

Procurator Fiscal

Locus

Where crime takes place

Examples

Example 1

Examination of a person’s computer finds a number of indecent photographs of children. There is evidence to confirm that these photographs were downloaded from the internet and saved within a file on the computer.

- 1 x Civic Government (Scotland) Act 1982, S52 (1) (a) for taking/making the images - there is only a requirement for the "take/make" offence to be recorded.

Example 2

On examination, a person's computer is found to contain indecent images of children downloaded from the internet and evidence shows they have been aware of what they were looking at via identified search criteria, however, these images are not physically saved within a file/drive on the computer. A USB stick is also recovered with indecent images thereon, however, it cannot be evidenced that these were made/taken.

- 1 x Civic Government (Scotland) Act 1982, S52 (1) (a) for taking/making the images

- 1 x Civic Government (Scotland) Act 1982, S52 (1), Possession of Indecent Images (in respect of the USB stick)

Example 3

A number of indecent photographs of children are found on a computer used by two persons. Both parties refuse to acknowledge they were responsible and there is sufficient evidence that the photographs could have been downloaded by one or both parties.

- 1 x Civic Government (Scotland) Act 1982, S52 (1) (a) for taking/making the images (two accused), there is only a requirement for the take/make offence to be recorded.

Example 4

A person is found to be in possession of a number of indecent photographs of children. There is evidence to confirm that these photographs were downloaded from the internet and saved within a file on the computer. There is also evidence to confirm that the images were distributed to others.

- 1 x Civic Government (Scotland) Act 1982, S52 (1) (a) for taking/making the images

- 1 x Civic Government (Scotland) Act 1982, S52 (1) (b) for distributing the images

Example 5

A person is found to be in possession of three indecent photos of young children. There is no evidence to show how these came into their possession.

- 1 x Civic Government (Scotland) Act 1982, S52A (1), Possession of Indecent Images

Example 6

Examination of a computer reveals several indecent images of children some of which show children involved in acts of extreme pornography. There is no evidence to show how these images were obtained.

- 1 x Civic Government (Scotland) Act 1982, S52A (1), Possession of Indecent Images (this accounts for all images since all involve children).

Example 7

A 19 year old male is found to be in possession of three indecent photos of a 16 year old female. The male and the female are in an established relationship.

- This would be recorded as an incident only as the male would be exempt under Civic Government (Scotland) Act 1982, S52B.

Example 8

A 13 year old female sends her 14 year old boyfriend a naked photograph of herself via mobile phone. When the relationship breaks up the male distributes the naked photograph to his friends.

- 1 x Civic Government (Scotland) Act 1982, S52 (1) (b) – for distributing the images (while it is noted the female has committed an offence by taking and distributing an indecent image of herself it is unlikely any crime would be recorded in these circumstances).

- 1 x Abusive Behaviour and Sexual Harm (Scotland) Act 2016, S2 (disclose intimate image).

Example 9

A teacher at a primary school installs a camera in the changing rooms, which allows the teacher to view the young children getting changed. It is established that 30 children have been filmed in their underwear, for the purpose of the teacher’s sexual gratification.

- 1 x Sexual Offences (Scotland) Act 2009, S26 Voyeurism towards a Young Child, with 30 victims (there is no requirement to record a separate Civic Government (Scotland) Act 1982, S52 offence in relation to this conduct unless further criminality is identified, e.g. search of home computer reveals indecent photographs of children indicating the images have been downloaded on to a separate device, or that the images have been distributed).

Example 10

A portable digital storage device is found in a public place and handed in to Police. When the contents are examined indecent images of children are found. There is no evidence to link any individual with making these images or possessing the storage device.

- Record as an incident only. If a crime has been recorded to document progression of the enquiry it can be updated to 'No Crime'.

Note

The word “child” refers to any person under the age of 18 years old.

Any naked image of a child is considered to be an indecent image.

Civic Government (Scotland) Act 1982, Section 52B provides exceptions in specific circumstances where the photograph is of a child aged 16 or 17.

Under normal circumstances when recording crimes under Civic Government (Scotland) Act 1982, Section 52, crime of both taking and possessing indecent images will not be recorded together unless it can be shown that indecent images were taken and then stored on alternative media, e.g. USB stick, therefore presenting justification to record both taking and possessing. Where indecent images have been distributed a further crime will be recorded.

Possession – for the offence of possession to be complete the person has to have knowledge or control of the child abuse content. If the images or videos are recovered from user controlled areas of the hard drive e.g. my documents, desktop, downloads etc. then the charge is complete.

Making/Taking – relates to bringing a child abuse image or video into existence by, for example, downloading it from Peer2Peer network, downloading it from the internet, copying it from a peripheral device. The person is actively making a copy of a child abuse image or video that never previously existed. If the images or videos are found within unallocated space or internet cache then this is an area of the hard drive that the person does not control and might not have any knowledge that the images or videos are even there. In this instance for the charge to be complete then you would need to show that the person went actively looking for child abuse material e.g. child abuse search terms via search engines, e.g. Google or Peer2Peer search terms thus their presence is a result of user action.

16/041 - Communications Act 2003, Section 127(1) Indecent, Obscene, Menacing Telephone Call/Message of a Sexual Nature

General Rule

One crime for each victim and continuity of action or per incident (as appropriate)

Definition

A person is guilty of an offence if he:

(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character, or

(b) causes any such message or matter to be sent.

Victim/Complainer

Person receiving the message/Procurator Fiscal as appropriate

Locus

Where sent from, if known, otherwise where received

Examples

Example 1

Sexual comments/images not directly sent to any individual are posted in a general page on social media.

- 1 x Communications Act 2003, S127 (1) (a) (Sexual)

Example 2

During a relationship a person consents to their partner making a video of them performing sexual acts in the belief that this would not be shared. When the relationship breaks up the former partner posts a sexual video of the victim on a pornographic internet site. No person has been physically caused to view the video but it can be freely viewed by any person accessing the site.

- 1 x Abusive Behaviour and Sexual Harm (Scotland) Act 2016, S2 (disclose intimate image)

Example 3

'A' sends abusive text messages to 'B' and while the comments make some sexual references, the overall content of the messages is deemed to be more abusive than sexual.

- 1 x Communications Act 2003, S127 (1) (a) (Non-Sexual).

Example 4

While 'A' and 'B' were in a relationship they took naked photographs of each other which was consensual. Several months after the relationship broke up 'A' sent 'B' some naked photos of 'B'.

- 1 x Communications Act 2003, S127(1)(a) (Sexual) - note - sending a person a sexual or intimate photograph of themselves is not provided for by Sexual Offences (Scotland) Act 2009 or Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

Example 5

‘A’ allows ‘B’ to borrow their mobile phone. A notification appears on the mobile phone that a message has been received which ‘B’ opens. The content of the message is clearly intended for ‘A’ and outlines a conversation between ‘A’ and ‘C’ of a sexual nature outlining what they have done and would like to do to young children.

- 1 x Communications Act 2003, S127 (1) (a) (Sexual) - the offence under S127 (1) (a) is complete once the message is sent and the criminality of the conduct does not depend on the message being received by someone resulting in it causing offence.

Note

Where a report is received that a number of telephone calls over a period of time have been received from the same person or persons acting together with the same purpose, only one crime should be recorded even if dates and times are available.

SGJD Code 16/041 is applied where the communication is sexual and 84/002 where it is non-sexual.

The Sexual Offences (Scotland) Act, 2009 was introduced on 1^st December, 2010. As a result of this new legislation, circumstances which may have previously been recorded as a Communications Act offence may now be more suited to an offence of Communicating Indecently (Sections 7(1), 24(1), 34(1)).

12/000 - Criminal Law (Consolidation) (Scotland) Act 1995, Section 1 Incest

General Rule

One crime for each relationship

Definition

Any male person who has intercourse with a person related to him (within forbidden degrees) or any female person who has sexual intercourse with a person related to her (within forbidden degrees) shall be guilty of incest, unless the accused proves that he or she:

(a) did not know and had no reason to suspect that the person with whom he or she had sexual intercourse was related in a degree so specified; or

(b) did not consent to have sexual intercourse with that person (this would be charged as rape or assault - indecent); or

was married to that person, at the time when the sexual intercourse took place, by a marriage entered into outside Scotland and recognised as valid by Scots law.

Complainer

Procurator Fiscal

Locus

Where crime takes place

Examples

Example 1

A brother and sister have consensual sexual intercourse.

- 1 x Criminal Law (Consolidation) (Scotland) Act 1995, S1, Incest

Example 2

Two brothers have consensual sexual intercourse with their sister.

- 2 x Criminal Law (Consolidation) (Scotland) Act 1995, S1, Incest (one crime for each relationship)

Note

In a case involving consenting adults, it would be admissible to charge both parties with the crime (1 crime with 2 accused).

See relevant statute for Forbidden Degrees of Relationship. Section 2 of the above Act relates to a step-child.

18/001 - Criminal Law (Consolidation) (Scotland) Act 1995, Section 7(1) Procuring

General Rule

One crime for each victim

Definition

Any person who procures or attempts to procure:

(a) any woman under 21 years of age or girl to have unlawful sexual intercourse with any other person or persons in any part of the world; or

(b) any woman or girl to become a common prostitute in any part of the world; or

(c) any woman or girl to leave the United Kingdom, with intent that she may become an inmate of or frequent a brothel elsewhere; or

(d) any woman or girl to leave her usual place of abode in the United Kingdom, with intent that she may, for the purposes of prostitution, become an inmate of or frequent a brothel in any part of the world,

Victim

Person against whom the offence was committed

Locus

Where procurement takes place

Examples

Example 1

Person invites three females from the Philippines to work in the UK as nannies but on their arrival deploys them as prostitutes in a sauna.

- 3 x Criminal Law (Consolidation) (Scotland) Act 1995, S7, Procuration

Note

Subsections (2) and (3) have now been repealed so relevant references have been removed. Subsection (1) still stands.

A number of other charges may be relevant depending on the circumstances, such as Human Trafficking and Exploitation (Scotland) Act 2015, Criminal Justice Scotland) Act 2003, Section 22 or Criminal Law (Consolidation) (Scotland) Act 1995, Section 11 depending on circumstances. The above example is to illustrate the counting rule under Section 7 that 3 crimes must be recorded.

18/017 - Prostitution (Public Places) (Scotland) Act 2007, Section 1 Soliciting for the purpose of obtaining the services of a person engaged in Prostitution

General Rule

One crime for each accused or course of conduct

Definition

The Act criminalises loitering or soliciting in any public place for the purpose of obtaining the services of someone engaged in prostitution.

Complainer

Procurator Fiscal

Locus

Where crime takes place

Examples

Example 1

Person seen to be driving slowly, stopping and offering money to three prostitutes individually in the street for sex.

- 1 x Prostitution (Public Places) (Scotland) Act 2007, S1

Example 2

Two persons in a car stop a prostitute in the street and ask for sex.

- 1 x Prostitution (Public Places) (Scotland) Act 2007, S1 (2 crimes if accused acting independently).

Note

Section 1 creates two offences:-

(a) Soliciting in a relevant place for the purpose of obtaining the services of someone engaged in prostitution, and

(b) Loitering in a relevant place in circumstances from which it may reasonably be inferred that the person loitering was doing so for the purpose of obtaining the services of a person engaged in prostitution.

Section 2 of the Act provides that where a constable reasonably believes that a person is committing, or has committed an offence under Section 1, the constable may arrest that person without warrant.

18/014 - Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, Section 1 Grooming of Children for the Purpose of Sexual Offences

General Rule

One crime for each victim

Definition

(1) A person ("A") commits an offence if-

(a) having met or communicated with another person ("B") on at least one earlier occasion, "A"

(i) intentionally meets B;

(ii) travels, in any part of the world, with the intention of meeting B in any part of the world; or

(iii) makes arrangements, in any part of the world, with the intention of meeting B in any part of the world, for B to travel in any part of the world;

(b) at the time, A intends to engage in unlawful sexual activity involving B or in the presence of B-

(i) during or after the meeting; and

(ii) in any part of the world;

(i) aged under 16; or

(ii) a constable;

(d) A does not reasonably believe that B is 16 or over; and

(e) at least one of the following is the case-

(i) the meeting or communication on an earlier occasion referred to in paragraph (a) (or, if there is more than one, one of them) has a relevant Scottish connection;

(ii) the meeting referred to in sub-paragraph (i) of that paragraph or, as the case may be, the travelling referred to in sub-paragraph (ii) of that paragraph or the making of arrangements referred to in sub-paragraph (iii) of that paragraph, has a relevant Scottish connection;

(iv) A is a British citizen or resident in the United Kingdom.

Victim

Child being groomed

Locus

Where crime takes place

Examples

Example 1

Adult male engages a 13 year old child in conversation over social media. Over a period of time the conversation becomes sexual and arrangements are made for them to meet where it is clear that this is for a sexual purpose.

- 1 x Sexual Offences (Scotland) Act 2009, S34, Communicating Indecently with an Older Child

- 1 x Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, S1

Example 2

Adult 'A' engages 'B' (also an adult purporting to be 14 years old) in sexual conversation on social media during which they arrange to meet for the purpose of sexual intercourse.

- 1 x Sexual Offences (Scotland) Act 2009, S34, Attempt to Communicate Indecently with an Older Child

- 1 x Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, S1 for attempting to meet with a child for the purpose of sexual intercourse.

Example 3

'A', an adult, engages with 'B' (an adult using the false profile of a 14 year old female) on social media which later develops into sexual conversation. 'B' is an active member of a sexual abuse activist group who create false profiles where they purport to be children. 'B' alerts other member of the group to their sexual chat with 'A' which prompts 'C', 'D' and 'E' also to engage with 'A' using their false child profiles.

- In these circumstances appropriate age related crimes should be recorded as if 'B', 'C', 'D' and 'E' are individual victims.

Note

In circumstances where a substantive sexual crime(s) is/are committed against the victim where there is evidence of grooming per the provisions of Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, Section 1 both offences should be recorded.

17/002 - Public Indecency

General Rule

One crime for each course of conduct

Definition

The paradigm case of public indecency is indecent exposure, but it may extend to other forms of indecency such as sexual intercourse in public view, or the making of indecent actions or gestures in a stage show.

Where a person has intentionally exposed their genitals for the purposes of sexual gratification or causing humiliation, distress or alarm to the complainer, then a crime of sexual exposure will be more appropriate.

Complainer

Procurator Fiscal

Locus

Where crime takes place

Examples

Example 1

Person reports that they were walking in a park with their child who is aged 13 to 15 years, another male deliberately exposed his penis to them in a sexual manner.

- 1 x Sexual Offences (Scotland) Act 2009, S8 Sexual Exposure (there is nothing to indicate the conduct was specifically directed towards the child). If the sexual element did not exist the crime would be one of Public Indecency.

Example 2

A report is received that a group of males dropped their trousers, showing their buttocks to an adult complainer.

- 1 x Public Indecency

- 1 Crime of Criminal Justice and Licensing (Scotland) Act 2010, S38, Threatening or Abusive Behaviour

Example 3

A male is standing at a bus stop with his hands in his trouser pockets masturbating (no exposure). Two persons nearby observe this and have no doubt that is what he was doing and contact the police.

- 1 x Sexual Offences (Scotland) Act 2009, S5, Cause person to be present during sexual activity

Example 4

During a rugby international fixture a naked male runs across the pitch in full view of thousands of people.

- 1 x Public indecency

Note

It is not relevant to the crime’s definition whether or not it is committed for the sexual gratification of the accused however such motivation is likely to constitute an offence of sexual exposure under Sections 8, 25 or 35 the Sexual Offences (Scotland) Act 2009.

Unlike the offence of Sexual Exposure, the offence of public indecency is a public order offence which relates to activities such as nude sunbathing, urinating in public or streaking.

Public indecency is a public order offence, therefore, is recorded per incident, not per victim.

It is sufficient that the conduct should cause public offence with the test being the standards that would be applied by the average citizen in contemporary society.

The crime does not extend to conduct in private that would cause offence merely if certain people were to hear of it, however, conduct falling within the definition could take place on a private occasion if it occurred in the presence of unwilling witnesses or if it occurred on private premises but was nonetheless visible to the public.

Public Indecency - This can be conduct in private where exposure does not have to be genitals and does not have to be for the purpose of sexual gratification. Sexual conduct in public could be Public Indecency if there are indications there were attempts at being discrete.

Sexual Exposure - This is exposure of genitals in a sexual manner, in private or in public and does not include sexual activity, e.g. masturbation.

Cause to be present during Sexual Activity - There is no requirement for exposure of genitals but there must be a sexual element to the conduct, e.g. masturbation. Can be committed in private or in public. There will be an expectation that the conduct was carried out where it would be reasonable to assume the person(s) would be seen (not discrete).

Repealed Sexual Crimes

The following crimes were repealed as a result of the introduction of the Sexual Offences (Scotland) Act 2009 and accordingly will only be applicable for reported crimes occurring prior to 1 December 2010).

15/000 - Attempted Rape/Assault with intent to Rape

General Rule

One crime for each victim and where specific dates and/or loci are identified separate crimes to be recorded

Definition

A criminal attack directed to take effect physically on the person of another is assault, whether or not actual injury is inflicted. An assault may be aggravated by intent to gratify lewdness or to ravish.

Assault with Intent to Rape (pre 1 December 2010)

The accused physically and/or sexually assaults the complainer with the intention of penetrating her vagina with his penis without her consent.

Attempted Rape (pre 1 December 2010)

The accused attempts to penetrate the vagina of the complainer with his penis without the complainer’s consent and the accused had no reasonable belief that the complainer was consenting.

Victim

Person subject of assault

Locus

Where crime takes place

Examples

Example 1

‘A’ attempts to rape ‘B’, ‘C’ and ‘D’ and rapes ‘E’ (occurs before 1 December 2010).

- 1 x Rape (common law)

- 3 x Attempted Rape/Assault with intent to Rape (common law)

Example 2

‘A’ reports that ‘B’ spiked their drink and thereafter attempted to rape her (occurs before 1 December 2010).

- 1 x Attempted Rape/Assault with intent to Rape (common law). A suitable aggravator should be applied to the crime report to allow identification that a drug may have been used to facilitate the crime (see 11/005 - Assault (Drugging) for further guidance).

Example 3

‘A’ reports that their drink was spiked by an unknown person and later ‘B’ has attempted to rape her (occurs before 1 December 2010).

- 1 x Attempted Rape/Assault with intent to Rape (common law).

- 1 x Assault (with Drugging offence modifier) - these events have occurred at different times, are not a continuous course of conduct and it is unknown if the same offender was responsible for both (see 11/005 Assault (Drugging) for further guidance).

Example 4

‘A’ reports that ‘B’ and ‘C’ attempted to rape her (occurs before 1 December 2010).

- 1 x Attempted Rape/Assault with intent to Rape (common law).

Example 5

‘A’ female reports that on a number of occasions within a three month period ‘B’ has attempted to rape her. ‘A’ is unsure of specific dates (occurs before 1 December 2010).

- 1 x Attempted Rape/Assault with intent to Rape (common law). If specific dates, times, loci were provided a crime should be recorded for each occasion.

Note

If a victim is raped by more than one male, count crimes separately unless the males are acting together as a group.

From 1^st December, 2010 the rape element will be non-gender specific, therefore will also apply to male victims. The Sexual Offences (Scotland) Act 2010 will apply in terms of the penis insertion into the vagina, anus and mouth.

18/008 - Criminal Law (Consolidation) (Scotland) Act 1995, Section 3(1) Person with Custody and Care of Girl or other Causing her Seduction

General Rule

One crime for each victim and where specific dates and/or loci are identified separate crimes to be recorded

Definition

Any person of or over the age of 16 years who:

(a) has sexual intercourse with a child under the age of 16 years;

(b) is a member of the same household as that child; and

Victim

Individual against whom the offence was committed

Locus

Where crime takes place

Examples

Example 1

30 year old man has consensual sexual intercourse with his sister’s 13 year old daughter (occurs before 1 December 2010).

- 1 x Criminal Law (Consolidation) (Scotland) Act 1995, S5 (3), Unlawful Sexual Intercourse with girl between 13 and 16 years. Note - there would be no expectation that a 13 year old would be reported for Incest given the age difference and the potential imbalance of power.

Example 2

30 year old man has intercourse with his wife’s sister’s 13 year old daughter who lives with them (occurs before 1 December 2010).

- 1 x Criminal Law (Consolidation) (Scotland) Act 1995, S3, Sexual Intercourse with child under 16 while in position of trust. Note - there would be no expectation that a 13 year old would be reported for Incest given the age difference and the potential imbalance of power.

18/002 - Criminal Law (Consolidation) (Scotland) Act 1995, Section 5(1) Sexual Intercourse with Girl under 13

General Rule

One crime for each victim and where specific dates and/or loci are identified separate crimes to be recorded

Definition

Any person who has or attempts to have unlawful sexual intercourse with any girl under the age of 13 years.

Victim

Individual against whom the offence is committed

Locus

Where crime takes place

Examples

Example 1

Two 12 year old girls are invited into a dwelling where a male has consensual sexual intercourse with them (occurs before 1 December 2010).

- 2 x Criminal Law (Consolidation) (Scotland) Act 1995, S5 (1), Unlawful Sexual Intercourse with a girl under 13

Example 2

Male has sexual intercourse with an 11 year old girl (occurs before 1 December 2010).

- 1 x Rape (common law) as the girl is under the age of 12

Example 3

Male has consensual intercourse with a girl who is 12 years old (occurs before 1 December 2010).

- 1 x Criminal Law (Consolidation) (Scotland Act 1995, S5 (1) Unlawful Sexual intercourse with a girl under 13

Note

The age of the male is irrelevant.

18/003 - Criminal Law (Consolidation) (Scotland) Act 1995, Section 5(3) Sexual Intercourse with a Girl under 16

General Rule

One crime for each victim and where specific dates and/or loci are identified separate crimes to be recorded

Definition

Any person who has or attempts to have unlawful sexual intercourse with any girl who has attained the age of 13 years and is under the age of 16.

Victim

Individual against whom the offence was committed

Locus

Where crime takes place

Examples

Example 1

Male drives 15 year old female drive to a secluded area where they have consensual sexual intercourse (occurs before 1 December 2010).

- 1 x Criminal Law (Consolidation) (Scotland) Act 1995, S5 (3), Sexual Intercourse with a girl under 16

Note

Time-Bar Provision

No prosecution shall be commenced for an offence under subsection (3) more than one year after the commission of the offence. (Section 15 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act, 2005 removed the time bar provision. This was commenced on 7 October 2005 so the time bar does not apply to offences after this date). It should be noted that the time bar does not apply to subsection (1) – unlawful sexual intercourse with any girl under the age of 13 years. If a time-bar does apply, an offence under Section 5(3) should still be recorded and the SPR updated to the effect that the Procurator Fiscal may instead wish to consider Section 6 (Lewd and Libidinous Practices against girl between 12 and 16).

18/022 - Criminal Law (Consolidation) (Scotland) Act 1995, Section 6 Lewd, Indecent and Libidinous Practices (statute)

General Rule

One crime for each victim and where specific dates and/or loci are identified separate crimes to be recorded

Definition

Any person who uses towards a girl of or above the age of 12 years and under the age of 16 years any lewd, indecent or libidinous practices or behaviour which, if used towards a girl under the age of 12 years, would have constituted an offence at common law, shall, whether the girl consented to such practice or behaviour or not, be guilty of an offence.

Victim

The girl subject of abuse

Locus

Where crime takes place

Examples

Example 1

Two 14 year old girls invited into dwelling house, accused exposes his penis (occurs before 1 December 2010).

- 1 x Criminal Law (Consolidation) (Scotland) Act 1995, S6, Lewd and Libidinous Practices (statute)

Example 2

A 13 year old girl is touched between the legs by an adult male (occurs before 1 December 2010).

- 1 x Criminal Law (Consolidation) (Scotland) Act 1995, S6, Lewd and Libidinous Practices (statute) - due to the age of the victim this should not be recorded as Indecent Assault.

Note

In circumstances where several crimes have occurred over a date range encompassing a period when the victim was aged 12 and under (common law), and also over 12 and under the age of 16 (statute) both crimes (common law and statute) must be recorded.

Lewd, Indecent and Libidinous Practices covers a variety of sexual conduct, with the exception of Rape, and should be recorded when the victim falls into the age group defined by the legislation. Indecent Assault should not be recorded where sexual activity has occurred and the victim falls with the age group protected by this legislation.

13/001 - Criminal Law (Consolidation) (Scotland) Act 1995, Section 13 Homosexual Acts (Illegal)

General Rule

One crime for each relationship

Definition

A homosexual act means sodomy or an act of gross indecency, by one male person with another.

A homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of 16 years.

Complainer

Procurator Fiscal

Locus

Where crime takes place

Examples

Example 1

One male forcing another male to have anal intercourse.

(a) Occurs before 1 December 2010

- 1 x Sodomy (common law)

(b) Occurs after 1 December 2010

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

Example 2

One male forcing another male to carry out oral sex upon him.

(a) Occurs before 1 December 2010

- 1 x Assault (with Indecent offence modifier)

(b) Occurs after 1 December 2010

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

Note

‘In private’ does not extend to a lavatory to which the public have, or are permitted to have access, whether on payment or otherwise.

Prior to 1 December 2010, where the sex is non-consensual the charge of Sodomy (13/003) or Indecent Assault (16/000) will apply.

It should be noted that any reports of non-recent sexual acts between consenting same sex partners, which would if occurring today in the same circumstances no longer be an offence, will not be recorded as crimes regardless of legislation in place at the material time. Any non-consensual acts will continue to be recorded in line with appropriate legislation.

18/012 - Criminal Law (Consolidation) (Scotland) Act 1995, Section 13 Procuration of Homosexual Acts

General Rule

One crime for each relationship

Definition

It shall be an offence to commit or to be party to the commission of, or to procure or attempt to procure the commission of a homosexual act:

(a) otherwise than in private;

(b) without the consent of the parties to the act; or

It shall be an offence to procure the commission of a homosexual act between two other male persons

Complainer

Procurator Fiscal

Locus

Where crime takes place

Examples

Example 1

Adult male offering an inducement to male to engage in sodomy in a public toilet (occurs before 1 December 2010).

- 1 x Criminal Law (Consolidation) (Scotland) Act 1995, S13, Procuration of Homosexual Acts.

18/022 - Lewd, Indecent and Libidinous Practices (common law)

General Rule

One crime for each victim and where specific dates and/or loci are identified separate crimes to be recorded

Definition

Lewd, indecent and libidinous practices consist of indecent conduct directed against a specific victim who is within the class of persons whom the law protects, i.e. boys under 14 years and girls under 12 years of age.

The essence of the offence is the tendency to corrupt the innocence of the complainer. It is criminal whether committed in public or in private.

Victim

The child who has been the subject of abuse

Locus

Where crime takes place

Examples

Example 1

Victim, now aged 25, reports to the police having been subjected to sexual abuse by his uncle from the age of 9 to 13 (occurred prior to 1 December 2010).

- 1 x Lewd and Libidinous Practices and Behaviour (if times, dates, loci provided separate crimes should be recorded).

Example 2

Two sisters aged 11 and 7 are subjected to watching pornographic films by their 38 year old babysitter, every Friday night for 6 weeks, before they tell their mother and the police become involved (occurred prior to 1 December 2010).

- 12 x Lewd and Libidinous Practices and Behaviour (six dates are identifiable and there are two victims).

Example 3

Two 12 year old victims report that on 5 December 2010 they were invited into dwelling house, where an adult male exposed his penis.

- 1 x Sexual Offences (Scotland) Act, 2009, S25, Sexual Exposure to a Young Child

Example 4

12 year old boy is indecently assaulted by 3 persons acting together (occurred before 1 December 2010).

- 1 x Lewd and Libidinous Practices and Behaviour

Example 5

An 11 year old girl is touched between the legs by an adult male (occurred before 1 December 2010).

- 1 x Lewd and Libidinous Practices and Behaviour (due to the age of the victim this should not be recorded as Indecent Assault)

Note

The essence of the offence is the tendency to corrupt the innocence of the complainer. It is criminal whether committed in public or private. It may be committed by indecent physical contact with the victim, but it need not.

Below are examples of such conduct:

Indecent exposure to the victim and the taking of indecent photographs of the victim.
Non-consensual homosexual conduct with a male under 14 (Over 14 is the crime of Indecent Assault).
Lewd conversation with the victim whether face to face or by a telephone call or through an Internet chat room.
Showing of indecent photographs or videos to the victim or by other forms of indecent conduct carried out in the presence of the victim.

Males between the ages of 14 years and 16 years engaging in consensual homosexual acts are not themselves liable but the older male may be guilty of the offence of gross indecency.

Males aged between 14 years and 16 years who engage in consensual homosexual conduct (where the other party is over 16) are protected by Criminal Law (Consolidation) (Scotland) Act 1995, Section 13(5).

Indecent Assault should not be recorded where sexual activity has occurred and the victim falls with the age group protected by this common law crime.

14/000 - Rape (Common Law)

General Rule

One crime for each victim and where separate dates and/or loci are identified separate crimes to be recorded

Definition

Rape is the carnal knowledge of a female, by a male person, without her consent

Of a girl under 12 years of age, even if she is willing, or with a female who is incapable through mental abnormality, of giving proper consent.

Carnal knowledge means penetration by the penis (not digitally), to the slightest extent, even without emission.

Victim

Person subject of assault

Locus

Where crime takes place

Examples

Example 1

A woman reports having been raped where the alleged offender claims she consented and the woman maintains she didn’t.

(a) Occurs before 1 December 2010

- 1 x Rape (common law)

(b) Occurs after 1 December 2010

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

Example 2

A woman reports that she was raped by the same man on numerous occasions at the same locus over several years but cannot specify dates.

(a) Occurs before 1 December 2010

- 1 x Rape (common law)

(b) Occurs after 1 December 2010

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

Example 3

A woman reports being raped anally by a male.

(a) Occurs before 1 December 2010

- 1 x Assault (with Indecent offence modifier)

(b) Occurs after 1 December 2010

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

Example 4

A woman reports being raped by a group of men who were acting together.

(a) Occurs before 1 December 2010

- 1 x Rape (common law)

(b) Occurs after 1 December 2010

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

Note

Where persons act individually, even though there is only one victim count each individually.

Where several people act together, this will be recorded as one crime.

The general rule relating to the law of rape is not the use of force but reference to the woman’s lack of consent.

Recording/Reporting of Rape

An SPR2 libelling a charge of Rape should be submitted to the Procurator Fiscal detailing the full circumstances for their consideration. The Rape crime report will be shown as detected in these circumstances. Whilst the accused may be charged with Attempted Rape or Assault with intent Rape due to the evidence available, the "Remarks" section of the SPR should provide an explanation as to why the charge being libelled on the front page of the SPR is one of Rape. The following has been agreed by COPFS and must be added to the "Remarks" section of an SPR2 for cases where Rape is libelled but it is considered there is only a sufficiency of evidence to report Attempted Rape or Assault with intent to Rape:

Husband & Wife

Legal authorities, in the past, held that a husband could not be convicted of rape of his wife. However, it has now been held that a charge alleging that a husband raped his wife is relevant, and that it is not an incident of modern marriage that a wife consents to intercourse, by her husband, in all circumstances, including intercourse obtained by force, and the husband is not immune from prosecution for rape of his wife. (Stallard v. H.M.A., 1989 S.C.C.R. 248). It should be noted that this court decision did not “change the law” as of that date, but decided that the historically suggested position was not valid based on the crime as it was at the time. Any reported crimes meeting this criteria which occurred prior to 1989 must be recorded.

13/001 - Sodomy/Attempted Sodomy

General Rule

One crime for each victim and where specific dates and/or loci are identified separate crime to be recorded

Definition

The common law offence of Sodomy consists of the insertion of the penis into the anus of another male. As with rape, proof of penetration is an indispensable requirement. It is not an offence for two consenting adults over the age of 16 years to engage, in private, in a homosexual act, namely sodomy or an act of gross indecency.

Victim

Person subject of assault

Locus

Where crime takes place

Examples

Example 1

‘A’ befriends ‘B’ at a nightclub, both return to a private flat, thereafter ‘B’ falls asleep and is awoken sometime later by ‘A’ sodomising him against his will (occurred before 1 December 2010).

- 1 x Sodomy

Example 2

‘A’ and ‘B’ enter a cubicle of a public toilet together, whereby ‘A’ forces himself on ‘B’ and sodomises him (occurred after 1 December 2010).

- 1 x Sexual Offences (Scotland) Act 2009, S1, Rape

Example 3

‘A’ and ‘B’ report being sodomised by 4 members of a group of men acting together (occurred after 1 December 2010).

- 2 x Sodomy

Example 4

A man is sodomised by three persons, acting together during one incident (occurred before 1 December 2010).

- 1 x Sodomy

Note

If a person has been sodomised by more than one other man, count these crimes separately, unless the perpetrators have been acting together as a group.

Where persons act as a group count one crime.

Contact

Email: Justice_Analysts@gov.scot

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Information

Group 2 – Sexual Crimes

Introduction

Sexual Offences (Scotland) Act, 2009

Consent

Stealthing

Attempt at Crime - Criminal Procedure (Scotland) Act 1995, Section 294

Compound Crimes

Interpretation

Incidents Involving Mixed Age Groups

Counting Rules

Acting for purposes of Sexual Gratification or to Humiliate, Alarm or Distress

Recording/Reporting of Rape

Medical Updates/No Crime

Sexual Activity involving Children

Persons Purporting to be Older/Younger

Offences committed outside the United Kingdom

Legislation Effective Dates

Rules for Recording Non Recent Crimes

Examples

Where specific dates are known

Different locations

Occurring pre and post Sexual Offences (Scotland) Act 2009 (December 2010)

Various offences over a period of time

Single crime occurs during time period covered by different legislation

Sexual Offences (Scotland) Act 2009 – Counting Rules

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Relevant Section of Act

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