The law on sexual offences has changed a lot in the past 25 years. Most of it is now set out in the Sexual Offences (Scotland) Act 2009, which came into effect on the 1st December 2010.
The 2009 Act is sexual orientation and gender identity neutral. Therefore, criminal justice agencies including Police Scotland, the Crown Office and Procurator Fiscal Service (the prosecution service), and the courts, should deal with sexual offences in a non-discriminatory way.
The 2009 Act extended the definition of rape to include vaginal, anal and oral rape of a person whatever their gender. The Act makes clear that it makes no difference to the law if someone’s genitals have been surgically constructed. Other non-consensual sexual acts are dealt with under the same legislation. The Act also abolishes the old discriminatory “homosexual offences” including gross indecency and sodomy.
One part of the law that is not set out in the 2009 Act, but is “common law” (law established by legal precedent), is the offence of public indecency. This offence would apply if any sexual activity takes place in circumstances where it could be witnessed by members of the public and cause them alarm or distress. The old offences relating specifically to homosexual activity in a public place no longer exist.
Where a sexual offence was committed before 1st December 2010, older laws will apply. We would expect that these laws would not now be applied in a way that discriminates on grounds of sexual orientation or gender identity.
However, we have been very concerned by the recent prosecution of a trans man for sexual activity that occurred before December 2010, who was charged with “obtaining sexual intimacy by fraud”. That was on the basis that he did not tell his sexual partner about his trans status and gender history. It is our clear view that it is not fraudulent for a trans man to present as a man, and sex should not become a criminal offence simply because a person involved did not disclose their gender history. We are in discussion with the Crown Office about their policy on this and will update this information as soon as we are able to.
The LGBT Helpline provides information and emotional support to lesbian, gay, bisexual and transgender people and their families, friends and supporters across Scotland.
Call 0300 123 2523 (Tue or Wed, noon to 9pm)
Rape Crisis Scotland provides a national rape crisis helpline and email support for anyone affected by sexual violence.
Call 08088 01 03 02 (every day, 6pm to midnight)
Or if you are D/deaf or have a hearing impairment call minicom number 0141 353 3091
Or e-mail firstname.lastname@example.org
Broken Rainbow UK is an LGBT Domestic Violence Helpline providing confidential support to LGBT people, their family and friends, and agencies supporting them.
Call 0300 999 5428
Until 1980, all sexual activity between men in Scotland was a criminal offence. In 1980, that started to change, with consensual sex between men legalised so long as both men were over 21. That age was reduced to 18 in 1994, and was finally equalised with the age of consent for other sexual activity, 16, in 2001. The Sexual Offences (Scotland) Act 2009 removed the remaining sexual orientation discrimination from sexual offences law, repealing the “homosexual offences” legislation.
There has never been legislation in Scotland dealing specifically with sex between women, although it is possible in the past that consensual sex between adult women could have been prosecuted as indecency under the common law (law that is not specified in legislation, but has been developed over time by the courts).