Sexual Offences (Scotland) Act 2009

The Sexual Offences (Scotland) Act 2009 (asp 9) is an Act of the Scottish Parliament. It creates a code of sexual offences that is said to be intended to reform that area of the law. The corresponding legislation in England and Wales is the Sexual Offences Act 2003.

In 2004, the Scottish Law Commission began working on a reference from the Scottish Executive to "examine the law relating to rape and other sexual offences, and the evidential requirements for proving such offences, and to make recommendations for reform" and completed its report in December 2007. The Scottish Government gave a commitment to bring forward legislation in the light of the Commission's review. Before the enactment of this Act, Scotland had very few statutory sexual offenses, with most of its sexual legislation being defined at common law, which was increasingly seen as a problem.

On 17 June 2008, the Scottish Government introduced the Sexual Offences (Scotland) Bill to the Scottish Parliament. The Bill was passed by the Parliament on 10 June 2009. The Act came into force on 1 December 2010 (except for sections 52 and 53(2)).

The Act provides for a definition of consent; it states that "“consent” means free agreement (and related expressions are to be construed accordingly)". Under the Act, a number of circumstances where the victim is unable to give consent (such as incapacitation due to alcohol consumption) are illegal. A spokesperson for the Scottish Executive has said that the Act provides “a clear legal framework that reflects the values of modern society.”

This section creates the offence of rape. This is the first statutory definition of rape in Scots law; prior to this Act, the offense was defined at common law. Male rape is also included in the offense of rape; before this new definition, rape was defined as non-consensual vaginal intercourse imposed by a male against a female.

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