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The Law

This is an overview of the main areas of Scottish Law relevant to young people, sexual health and wellbeing.

  • Men having sex with men             14        16        18        21 years

 

  • Women having sex with women    14        16        18        21 years

 

  • Women and men having sex         14        16        18        21 years

 

Answer: 16 years old for all of them

The age for lawful sexual activity across all sexuality has now been equalised.

No.  

The legislation makes provision in relation to sexual conduct involving “young children”. The term ‘younger child’ refers to children under 13. A younger child has no capacity to consent to any sexual activity with another person.

The law defines consent as being ‘free agreement’ and gives some clarification of circumstances where there cannot be free agreement.

The Sexual Offences (Scotland) Act 2009 defines consent to sexual activity as 'free agreement'.  The law lists situations where there can be no free agreement to sexual activity.

There is no 'free agreement' and therefore no consent if a person:

  • Is asleep or unconscious
  • Is drunk or incapable because of some other substance.  The exact point at which the victim reaches this level of intoxication will be a matter to be decided by the court but once it has been reached then any acting by the victim will not amount to consent.
  • Has been threatened with violence or violence has been used against them.

Or if:

  • Someone else has spoken for them.
  • Someone is detaining them unlawfully.  This doesn't necessarily need to involve the use of direct force or violence.
  • They are mistaken because of deception or someone impersonating someone they know.

In all of the above situations there is no ‘free agreement’. If there is no ‘free agreement’ to sexual activity, then there is no consent.

This list is not exhaustive so if a situation does not appear on this list it does not imply that there is free agreement.

Consent to one particular sexual conduct does not imply consent to any other type of sexual conduct. Consent can be withdrawn at any point before or during sexual activity and if consent is withdrawn and the activity continues then there is no consent.

The Sexual Offences Scotland Act 2009 broadens the definition of rape so that a person of either sex can be raped by penile penetration.

True.

The 2009 Sexual Offences (Scotland) Act has broadened the definition of rape to include penile penetration of the anus or mouth of a victim.

The Act now includes the offence of Sexual Assault by Penetration. This is sexual penetration of the vagina or anus by other body parts or by an object. Sexual assault by penetration is mainly about non-consensual penetration of parts of the body by the use of objects.  (It also includes penile penetration in cases where the victim may have been blindfolded and could not identify that a penis was involved). Sexual assault by penetration can be committed by a male or female and the victim can be a male or female.

True.

The Sexual Offences (Scotland) Act 2009 makes sexual abuse of trust an offence. It applies to all adults over the age of 18 who are in a position of trust with a child under the age of 18 and engage in a sexual activity with them.

This protects young people aged 16 and 17 who, even though they are over the age of consent for sexual activity, could be considered vulnerable to sexual abuse and exploitation.

False.

The Age of Legal Capacity (Scotland) Act 1991 states that under the age of 16 a young person can have the legal capacity to make a decision on a health intervention. This can include decisions on contraception, pregnancy termination and treatment of sexually transmitted infections.

They can make this decision provided they are, in the opinion of a medical practitioner, capable of understanding the nature and possible consequences of the treatment. This is a matter of clinical judgment and will depend on the age and maturity of the young person, the complexity of the proposed intervention, its likely outcome and the risks associated with it. This applies to all health interventions, including assessment, treatment and counselling. 

False.

The Abortion Act 1967, as amended by the Human Fertilization and Embryology Act 1990 covers the UK mainland (Scotland, England and Wales). The law states a woman can have an abortion up to 24 weeks of pregnancy, if two doctors agree that it is less likely to cause harm to her physical or mental health than continuing with the pregnancy. 

True.

Parent’s can withdraw their child from a class but not from school. There is no single piece of legislation that states that this is a right, however local authorities have a responsibility to educate children in line with parent’s philosophical and theological views. 

Sam and Sophie have been together for a month. Sam has been on at Sophie to have sex with him and keeps texting to ask her. Sam then sends Sophie a picture of himself naked to her Blackberry phone.

Sophie then forwards the photo to Carl who she and some other friends have been teasing about being gay. Carl is really upset because this kind of thing has been happening 24/7 and he is already feeling depressed.

Has Sophie committed an offence?

  

Answer: Yes

As Sam is under 18 it is an offence for  Sophie to possess a photo of him naked and it is a more serious offence for her to distribute it to another person.

The 1982 Civic Government (Scotland) Act states it is an offence for any person to possess, publish, take, make or distribute indecent pictures of a child under the age of 16. The Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 amended this to include young people aged 16 and 17.

The Sexual Offences (Scotland) Act 2009 adds the offence of coercing a person into looking at a sexual image. This can be a moving or still image of a sexual activity or a person’s genitals and can include drawings or animation. To be an offence it has to be done with the intention of gaining sexual gratification or humiliating, distressing or alarming the person. Sophie’s intention when she sent the picture to Carl would need to be taken into account in determining if she committed an offence in sending the picture on to him.

The Act also includes the offence of communicating indecently. This is a sexual written or verbal communication directed at a person with intention of gaining sexual gratification or humiliating, distressing or alarming. The communication can be by ‘whatever means’ which would include text messages.