Sexual assault is difficult to summarise in a sentence, beyond the following: it is A intentionally or recklessly doing any of the things listed in s3(2) of the Sexual Offences (Scotland) Act 2009, without B’s consent and without any reasonable belief that B consents.
s3 of the Sexual Offences (Scotland) Act 2009 reads as follows:
For further discussion of s3(2)(d), you can read this blog post that I wrote about a case in which the accused was charged with that particular offence.
“Consent” & “Reasonable Belief”
“Consent” and “Reasonable belief” have the same meaning as they do with the offence of rape.
“Sexually” / “Sexual Activity”
What constitutes “sexually” touching (or emitting urine or saliva onto) someone? Similarly, what is “sexual activity” in accordance with s3(2)(c)?
s60 of the 2009 Act defines an act as sexual “if a reasonable person would, in all the circumstances of the case, consider it to be sexual.”
SD v PF Edinburgh  SCCR 449
- The appellant had been convicted of sexually assaulting the complainer, in terms of s3 of the 2009 Act, by placing his hand on her buttocks without her consent.
- The incident took place in a nightclub. The complainer had earlier told the appellant that she was not interested in him. The appellant, who was drunk, had approached the complainer from behind and grabbed her bottom with both hands.
- Lord Drummond Young: “We take the view that in order for an offence to be sexual in terms of s.3 , any sexual element must be sufficiently significant to trigger that section.”
- “The sheriff…has not given sufficient attention to the fact that the appellant had consumed a considerable amount of drink beforehand, with the result that the assault can be regarded as drink-fuelled rather than overtly sexual.”
- “Against that background, what was involved, seizing the complainer’s buttocks with both hands, while clearly to be condemned and clearly amounting to a common law assault, does not seem to us to have a sufficiently large sexual component to bring s.3 into operation.”
- The appeal was allowed.
Section 50(1)(a) of the 2009 Act allows for an accused person to be convicted of an alternative crime, if “the jury are not satisfied that the accused committed the offence charged but are satisfied that the accused committed the alternative offence (or as the case may be one of the alternative offences)”.
In the case of sexual assault, the alternatives are as follows: