Justice Committee, 17 Mar 2009

Meeting date: Tuesday, March 17, 2009

Official Report 173KB pdf

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Sexual Offences (Scotland) Bill: Stage 2

Item 7 is the first day of stage 2 proceedings on the Sexual Offences (Scotland) Bill. The committee will consider amendments to sections 1 to 8 inclusive and section 13 but will not proceed beyond that point. Members should have their copies of the bill, the marshalled list and the groupings of amendments.

I welcome the Minister for Community Safety, Fergus Ewing, who is spending the entire morning with us, and his officials Gery McLaughlin, Patrick Down, Caroline Lyon and Diane Barbirou.

Section 1—Rape

Amendment 1, in the name of the minister, is grouped with amendments 2 and 3.

Before we start today's substantive business, I put on record my thanks and those of the Cabinet Secretary for Justice for the constructive approach that committee members have taken to the bill. That is greatly appreciated and it has helped us significantly with the complex and difficult issues in the bill. As you are aware, the Government has taken full account of the committee's views in lodging amendments at stage 2, and we are grateful to you for your advice and assistance on the best and most appropriate ways in which to strengthen the bill.

Amendments 1 to 3 relate to the recommendation in paragraph 66 of the committee's stage 1 report. The concern was that the use of the term "artificial" to describe genitalia created in the course of surgery such as gender reassignment surgery is inappropriate, as the term is more generally used to refer to prosthetic parts. The committee's report asked the Government to consider the issue and lodge appropriate amendments to the bill. Our response to the report confirmed that we would do that.

We agree that the terminology that is currently used in the bill is inappropriate. The intention of the amendments is to have the bill refer to "surgically constructed" genitalia rather than prosthetic parts. Amendments 1 to 3 therefore amend section 1 to replace the term "artificial" with the term "surgically constructed".

I move amendment 1.

Amendment 1 agreed to.

Amendments 2 and 3 moved—[Fergus Ewing]—and agreed to.

Section 1, as amended, agreed to.

After section 1

Amendment 4, in the name of the minister, is in a group on its own.

Amendment 4 provides for a new offence of sexual assault by penetration. It is a response to the committee's stage 1 report, which recommended that the bill be amended to create

"a separate offence of rape with an object or with another part of the body, limited to vaginal or anal penetration".

As the Government's response to the report made clear, we understand and sympathise with the reasons behind the committee's recommendation. In her evidence to the committee, the Lord Advocate stated that some of the most horrific and violent attacks involve the victim being penetrated with an object. Such attacks are not currently defined in law, despite being perceived by many victims to be as serious as rape. As the cabinet secretary said in response to the Justice Committee's report, the Government's view is that it would be inadvisable to provide for a separate offence of rape with an object without incorporating that offence within the definition of the offence of rape.

As the committee is aware, the Government considered amending the bill to incorporate such conduct within the offence of rape in section 1. However, there were concerns that such a definition of rape might not match the wider public's perception of what constitutes the crime of rape. Juries might be reluctant to convict an accused of rape if the assault does not match their understanding of the offence.

Having considered the matter at some length, the Government has concluded that the committee's recommendation is best addressed by the creation of a new offence of sexual assault by penetration, triable only on indictment and carrying the same maximum penalties as rape.

In closing, I thank the committee for its advice and assistance, which have been invaluable in helping us to reach our conclusion.

I move amendment 4.

There is something that I would like the minister to clarify when he sums up. It concerns subsection (4) of the new section that is proposed by amendment 4, which says:

"Without prejudice to the generality of subsection (1), the reference in that subsection to penetration with any part of A's body is to be construed as including a reference to penetration with A's penis."

Section 2 also deals with that. Will the minister clarify the subsection and explain why repetition is required when section 1 already defines rape quite clearly?

That seems a very reasonable question. Convener, do you wish me to answer it?

Not at the moment, but you may deal with it when you sum up.

I will.

In that summing up, will the minister also say for the record what advantage the Government sees in taking the course of amendment 4 rather than including an offence of rape with an object? I take his point that the same penalties will apply, but does the Government feel that its chosen course will provide more flexibility and will assist juries?

I have a question on the penalty and the method of prosecution. The minister said that the offence would be chargeable only on indictment—meaning, I think, only in the High Court. Will another amendment be required to make that clear?

As there seem to be no further questions, I invite the minister to wind up.

I will start with Cathie Craigie's point. Amendment 4 creates a new offence of sexual assault by penetration, and Cathie Craigie asked me to clarify how it will operate and why it is necessary. The new offence is committed when a person sexually penetrates with any part of his or her body, or with anything else, the vagina or anus of another person without their consent and without any reasonable belief that they consent. As Cathie Craigie rightly points out, there is an overlap with the offence of rape, as subsection (4) of the new section that is introduced by amendment 4 provides that penetration includes penetration with the accused's penis.

It is not intended that rape will be prosecuted under the new section that is introduced by amendment 4, but rather that, when the victim is not sure what he or she was penetrated with, for example because they were blindfolded in the course of the attack, a prosecution can be brought under the new section. The new section ensures that, in that specific fact situation, when a victim is uncertain what the object of penetration was, we would not fail to prove a very serious crime because of a fault of draftsmanship. That is an important fact situation in which the new section could be used and in which, were there only the offence of rape, someone might avoid conviction.

We agree with Bill Butler's suggestion that the Government's approach will allow more flexibility, particularly to prosecutors. I think that it will also assist juries; we certainly hope that it will do so.

On Robert Brown's point, amendment 51 deals with penalties. I do not think that I said that the trying of this offence on indictment means that it would necessarily be heard in the High Court; it could be heard in the sheriff court. I guess that it is up to the Lord Advocate to decide in which court a case will be brought, but plainly the nature of this offence is most serious.

I am anxious that this very important matter should be canvassed as widely as possible and I can see that Cathie Craigie still has some concerns. In the circumstances, if she wants to raise another point, I am happy for her to do that, and I am sure that the minister will do his best to answer it.

I understand the point that the minister makes about the victim not being sure about what they were penetrated with—the Lord Advocate also made that point when she gave evidence to the committee. My concern is that the accused's legal representatives might try to have a lesser charge brought, because I would see the new offence as a lesser charge than a charge of rape. They might try to have the charge considered as sexual assault by penetration. For the record, can you give the Government's view on that and perhaps rule it out?

I certainly hope that we can rule it out and I feel that we should be able to rule it out. It is plainly for the Crown to decide which charge should be brought in any particular fact circumstances. However, as the Lord Advocate said in her evidence to the committee, some of the most horrific and violent instances have involved penetration by an object. It will be readily understood and appreciated by all juries that such a crime could, in some circumstances, be even more heinous and appalling than rape itself. Without going into too much graphic detail, one thinks of broken glass and some other horrendous scenarios, which no doubt the Lord Advocate has had to deal with in the courtroom.

I reassure Cathie Craigie that the new offence that is introduced by amendment 4 is a most serious one. Each case falls on its particular circumstances and facts. It will be up to the Crown to decide how to proceed and, indeed, whether to proceed with both charges, in an either/or or both scenario; it will depend on the facts of each case. Where, for example, there is some dubiety on the part of the victim about what object he or she was penetrated with, there might well be merit in proceeding with a charge of rape and a charge of sexual assault by penetration to see where the evidence falls. In many instances of rape, there are serious and difficult evidential challenges for the prosecution, because such incidents tend to take place in private circumstances such as in homes or other locations where there is no third-party evidence available.

I give Cathie Craigie the reassurance that she seeks. We are at one with the committee and we agree that the offence of sexual assault by penetration is most serious and ranks alongside rape.

Amendment 4 agreed to.

Section 2—Sexual assault

Amendment 5, in the name of the minister, is in a group on its own.

Amendment 5 extends the definition of sexual assault to include other offending behaviour, namely spitting and urination. The offence of sexual assault under section 2 currently covers a range of non-consensual conduct, including the ejaculation of semen on to the victim.

Discussions with the Crown Office have highlighted that the emission of urine and saliva can also be constituent elements of a sexual assault. If that conduct is not covered by the bill, it would have to be charged under common law as assault aggravated by indecency separately from the offence of sexual assault under the bill. The Government's view is that such conduct should be included in the definition of sexual assault. That will enable a single incident that features such conduct, as well as other elements of sexual assault, to be charged as an offence under the bill. That would avoid the need for it to be charged separately as common-law assault.

We therefore propose to extend the definition of sexual assault to cover circumstances in which the accused intentionally or recklessly emits urine or saliva on to the victim. Not all such conduct is necessarily sexual in nature. Where it is not, the intention is that it will continue to be dealt with under the common law of assault.

Amendment 5 includes a requirement that the emission of saliva or urine must be sexual. That will ensure that only conduct of a sexual nature is charged as sexual assault.

I move amendment 5.

I think that we deal with the question of the nature of the conduct by referring to the assumption that would be made by a reasonable person.

That is correct.

Amendment 5 agreed to.

Amendment 6, in the name of the minister, is grouped with amendments 7, 8, 12, 13, 19, 24, 28 to 30, 34 to 38, 42 to 48 and 75.

The amendments in the group are technical amendments, which replace the 22 separate definitions of "sexual" with a single definition, which defines the term wherever it is used in the bill.

Amendment 75 provides that, for the purposes of the bill, a communication, penetration, touching or any other activity, a manner of exposure, or a relationship is sexual if, in all the circumstances, a reasonable person would consider it to be sexual. The other amendments in the group are consequential to amendment 75 and delete the existing definitions of "sexual" from the bill.

I move amendment 6.

Amendment 6 agreed to.

Section 2, as amended, agreed to.

Section 3—Sexual coercion

Amendment 7 moved—[Fergus Ewing]—and agreed to.

Section 3, as amended, agreed to.

Section 4—Coercing a person into being present during a sexual activity

Amendment 8 moved—[Fergus Ewing]—and agreed to.

Section 4, as amended, agreed to.

Section 5—Coercing a person into looking at an image of a sexual activity

Amendment 9, in the name of the minister, is grouped with amendments 10, 11, 31 to 33, 39 to 41, 53, 57, 58 and 60 to 74.

Amendments 9 to 11, 31 to 33 and 39 to 41 amend the definition of

"an image of a sexual activity"

in the offences under sections 5, 18 and 25. As the bill is currently drafted, it is not clear that those offences would criminalise the sending of images of a person's genitals without consent, or a reasonable belief in consent, as the images would not constitute

"an image of a sexual activity".

Given that such images have just as much potential to be used to cause humiliation, alarm or distress, or to be sent by persons who seek sexual gratification, we propose to amend the offences so that they refer to "a sexual image", which we have defined as either an image of a person

"engaging in a sexual activity"

or an image of a person's genitals.

In view of the changed definition, we propose to change the names of the offences so that they refer to "a sexual image" instead of

"an image of a sexual activity".

The other amendments in the group are consequential amendments that reflect the changed names of the offences.

I move amendment 9.

Amendment 9 agreed to.

Amendments 10 to 12 moved—[Fergus Ewing]—and agreed to.

Section 5, as amended, agreed to.

Section 6—Communicating indecently etc

Amendment 13 moved—[Fergus Ewing]—and agreed to.

Section 6, as amended, agreed to.

Section 7—Sexual exposure

Amendment 14, in the name of the minister, is grouped with amendments 15 to 18, 20 to 22, 25 to 27 and 54.

Amendments 14 to 18 amend the offence of sexual exposure at section 7 to bring it into line with the offences at sections 4 to 6. The effect would be to require that, for an offence to be committed, the accused must expose his or her genitals in a sexual manner to another person without consent, and without any reasonable belief in consent, for the purpose of obtaining sexual gratification or for the purpose of causing humiliation, alarm or distress.

As drafted, the offence of sexual exposure in section 7 is framed differently from the offences at sections 4 to 6. No reference is made to consent; the offence is framed in terms of intent to cause alarm or distress. Given that the offence achieves much the same effect as the other offences in the bill, we believe that it should be drafted in the same terms. Amendments 14 to 18 will have that effect.

Amendment 20 amends the offence of sexual exposure in section 7 and removes the defence that the conduct

"was done in the course of a performance of a play".

That defence is no longer required, given that the amended offence provides that A is guilty of the offence only if it can be proved that B did not consent to the exposure and that A had no reasonable belief that B had consented. The fact that B is at the play could give rise to a reasonable assumption in A's mind that B knows what the play is about and that B is there through choice.

Amendment 21 provides for a new offence of voyeurism. The bill as drafted does not include provision for such an offence. At present, the offence would be prosecuted under the common law as a breach of the peace. However, given that it is clearly a sexual offence, and given that those who are convicted of it are routinely placed on the sex offenders register, our view is that the bill should provide for an offence of voyeurism.

Amendment 21 makes it an offence for a person to observe, for the purpose of obtaining sexual gratification or of humiliating, distressing or alarming the victim, another person without their consent or without any reasonable belief that they consent as they engage in a private act, as defined in amendment 22, in a place or in circumstances in which they could reasonably expect privacy. The provision is similar to the offence of voyeurism in England and Wales under the Sexual Offences Act 2003.

Amendment 21 also makes it an offence to operate equipment such as a webcam, enabling the accused or a third person to observe the victim engaging in a private act, for the purpose of obtaining sexual gratification either for the accused or for a third party or of humiliating, distressing or alarming the victim without the victim's consent and without any reasonable belief that the victim consents.

It will also be an offence for the accused to record the victim with the intention of enabling the accused or a third person to look at an image of the victim engaging in a private act without the victim's consent and without any reasonable belief that the victim consents for the purpose of obtaining sexual gratification for the accused or a third party or of humiliating, distressing or alarming the victim.

Finally, a person will commit an offence if he or she installs equipment such as a video camera or constructs or adapts—for example, by drilling a peephole—a structure or part of a structure with the intention of enabling him or herself or a third party to carry out any of the three actions described above for the purpose of sexual gratification for either the accused or a third party or of humiliating, distressing or alarming the victim.

Amendment 22 defines terms used in voyeurism offences. Under the amendment, a person is engaged in a private act if they are in a place in which the circumstances are such that there is a reasonable expectation of privacy and

"the person's genitals, buttocks or breasts are exposed or covered only with underwear, … the person is using a lavatory, or … the person is doing a sexual act that is not of a kind ordinarily done in public."

The proposed section also provides a definition of a structure for the purpose of the offence of modifying or constructing a structure to engage in voyeurism.

Amendments 25, 6 and 7 make consequential amendments to the bill as a result of the introduction of the new offence, and amendment 54 provides for the maximum penalties for the new offence.

I move amendment 14.

The amendments raise three issues, the first of which relates to difficulties that might arise in stage performances. Having listened to the minister, I am persuaded that it would be highly unlikely that a person who had not consented to the act involved would then have been present while it was carried out. That should remove any problems for the performing arts community.

The second issue is the addition of the offence of voyeurism. It is indeed correct that for many years such matters have been dealt with under the catch-all charge of breach of the peace. However, in the vast majority of such cases, part of the disposal has been that the offender be put on the sex offenders register. Thirdly, I am interested to see that the offence now covers the art-and-part involvement of the person who drills a hole in the knowledge that photographic equipment will be installed.

With regard to the new provisions relating to stage performances, has the minister, or his officials, had any contact with people in the theatrical community to ensure that any circumstances that we cannot immediately envisage do not give rise to problems?

We have not had any such contact. I suppose that one reason for that is, as the convener indicated, actors willingly take part in performances. The offence involves a lack of consent but, prima facie, performances of plays involve the willing participation of actors. I suppose that there are relative degrees of willingness to take part in a play, which might depend on how much someone is paid to do so, but no one is forced to play roles such as Ophelia or Hamlet—they give their consent. Therefore, it had not occurred to us to seek third-party support for our position or corroboration of our argument, but it seems, prima facie, to be solid.

My point was that the exposure would be not just to other stage actors—it would be to the play's audience, which is slightly wider than the minister suggested.

We have proceeded on the basis that people who are in an audience wish to see the play, so they consent to be in the audience. We did not envisage that that would be a problem within the confines of the bill. Audience members are free to leave, as I have sometimes done, although not necessarily for the reason that we are discussing.

We are intrigued about the performances of Hamlet that the minister may have attended, but we will leave that hanging to the wall.

My question is on the same area that Robert Brown asked about. I am clear about the issue as it relates to members of the cast, and to the audience when a play is advertised as being of an adult nature and all the actors stick to the script, but what would happen if an actor did something that was unscripted? Would they still be able to use the defence that their action was part of the play? That question is about a situation in which there is a clear script and someone goes off script.

My other question is about more free-flowing or ad lib performances. At what point would certain action constitute an offence as opposed to being part of the performance?

I understand that the concern that was expressed by those who are involved in thespian circles was not about the performance of a play but related to "reasonable belief". Stewart Maxwell postulates a situation in which an event takes place on a stage that is not part of the script. I find it difficult to see how someone who deliberately departed from the script to engage in a sexual offence could have any legitimate defence. Any defence would be exercised on the basis that there was a reasonable belief that consent was given, but there could be no such reasonable belief if the person in question departed from the script or the tenor of the performance to commit a sexual offence, because it would not be reasonable to assume that anyone else consented to such behaviour.

I assumed that that would be the case with a scripted performance, but my second question was about unscripted performances of a more free-flowing or ad lib nature. Has any thought been given to whether a defence would be available to actors in such performances?

I guess that it would depend on the nature and extent of the behaviour that was committed, but I cannot see how anyone could avoid being convicted in circumstances in which they were taking part in an artistic performance that had no script, no plan, no nothing and they committed a sexual offence. In such circumstances, I really do not think that they would find it easy to establish that they had a reasonable belief that the other parties consented.

I seem to recall that, some years ago, a great furore was caused when a nude person was wheeled across the stage in a wheelbarrow during a performance in the Edinburgh festival. Would something like that—which was clearly designed to shock in the circumstances of the time—be counted as a criminal offence? I am dubious whether people today would consider that such an event should constitute a criminal offence, regardless of whether a defence was available under the legislation.

The issue is consent, and what amounts to a reasonable belief of consent. Some performances are advertised as being of an adult nature—although I think that the word "adult" is widely recognised as a euphemism for material of a particularly unpleasant, graphic or pornographic nature. Where performances are advertised in such a way, there might be a reasonable belief that those who take part in such performances—whether you would call them art is another matter—do so in the knowledge that they are taking part in a play or a supposed work of art that is of an explicit and adult nature. In such a case, one could infer that the people who were taking part had given their consent.

I am pleased to say that I did not see the play that involved some sort of wheelbarrow event. My comments might address Robert Brown's concerns or they might not; I do not know.

Amendment 22 defines a private act. Is that definition derived from elsewhere in the legal canon, or has it been made up for the purposes of the bill?

I am advised that it is similar to the definition that is employed in the 2003 act in England and Wales. It is similar, but not identical.

The definition causes me no particular problems, but I wondered where it came from.

The matter is important, as some new material had been injected on this subject, so we explored it in somewhat greater depth than I would have been relaxed about permitting in normal circumstances.

Do you have anything to say in conclusion, minister?

No. I fully appreciate the questions that were put by members, even though they were, perhaps, way beyond the fringe.

That remark is hardly worthy of comment.

Amendment 14 agreed to.

Amendments 15 to 20 moved—[Fergus Ewing]—and agreed to.

Section 7, as amended, agreed to.

After section 7

Amendments 21 and 22 moved—[Fergus Ewing]—and agreed to.

Section 8—Administering a substance for sexual purposes

Amendment 23, in the name of the minister, is in a group on its own.

Amendment 23 addresses a gap in the offence concerning administering a substance for the purpose of committing a sexual offence.

Section 8 applies where the accused administers a substance to a person for the purpose of stupefying or overpowering that person in order that the accused can engage in sexual activity with him or her. The gap arises from the fact that the offence does not currently apply where the accused administers a substance for the purpose of allowing a third party or parties to engage in sexual activity while the victim is incapacitated. Amendment 23 ensures that an offence will also be committed where the accused administers a substance to a person to enable someone other than the accused to engage in sexual activity with that person.

I move amendment 23.

Do members have any questions about or comments on an amendment that appears to plug a fairly important gap? Do you have anything further to add, Mr Ewing?

No.

Amendment 23 agreed to.

Amendment 24 moved—[Fergus Ewing]—and agreed to.

Section 8, as amended, agreed to.

Section 13—Capacity to consent

Amendment 25 moved—[Fergus Ewing]—and agreed to.

Section 13, as amended, agreed to.

That concludes consideration of amendments to sections 1 to 8 and section 13. Next week, we will consider amendments to sections 9 to 12 and sections 14 to 30.

I thank Mr Ewing and his officials for their attendance.

Meeting continued in private until 11:45.