What is a sexual assault? Non-consensual acts you didn’t realise were illegal or a violation - and your rights around consent explained

Many sexual assaults and rapes go unreported because people are unaware of what constitutes a crime

Thursday, 1st October 2020, 10:03 am

New statistics from the Scottish Government show that sexual crimes decreased by 1% from 13,547 in 2018-2019 to 13,364 in 2019-2020.

It marks the first year since 2008-09 in which sexual crimes have not increased in the country.

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But while this trend appears positive, sexual crimes in Scotland are still at the second highest level seen since 1971 - the first year comparable groups were available - and according to Police Scotland, many instances of sexual assault continue to go unreported.

Many sexual assaults and rapes go unreported because people are unaware of what constitutes a crime (Photo: Shutterstock)
Many sexual assaults and rapes go unreported because people are unaware of what constitutes a crime (Photo: Shutterstock)

Detective Superintendent Fil Capaldi, head of Police Scotland’s National Rape Taskforce, said: "We are acutely aware that rape and sexual offences remain under-reported crimes.

“The reasons for this are complex. It can take victims many years to report what has happened to them and some people may never report.”

Sandy Brindley, Chief Executive of Rape Crisis Scotland says: "When it comes to sexual violence there’s a real gap between public understanding or expectation of what that looks like and the reality, and this causes real problems, especially for survivors.

“This is deeply harmful and it’s really important that we broaden out the conversation so that less discussed forms of sexual violence are brought into the public awareness.”

Here are some examples of sexual acts that you may not have realised constitute an assault or violation - and your legal rights around consent explained.

Stealthing

Stealthing is the act of removing a condom during sex, despite agreeing to wear one.

Under Scottish Law there is no specific reference to “stealthing” or condom removal as a criminal offence, but it is legally recognised as assault in England and Wales under the term “conditional consent”.

However, in a blog post on its website, Rape Crisis Scotland explains, “This is an act which needs to be fully acknowledged as the sexual violation it is, and those on whom it has been perpetrated listened to and properly supported.”

A report by the End Violence Against Women (EVAW) coalition, published in December 2018, found that 40 per cent of people incorrectly believe that removing a condom without a partner’s consent is never or not usually sexual assault.

Ms Brindley explains, “Consenting once does not mean consenting forever, and likewise agreeing to one thing does not mean blanket agreement to everything, which is why stealthing – removing the condom without agreement or knowledge – is a violation.”

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Revokal of consent

Consent can be withdrawn at any time, even if it has been previously given, so if sexual activity takes place without consent it is a sexual offence.

The Sexual Offences (Scotland) Act 2009 notes: “Consent to conduct does not of itself imply consent to any other conduct.

“Consent to conduct may be withdrawn at any time before, or in the case of continuing conduct, during, the conduct.”

If the conduct then takes place, or continues to take place, after consent has been withdrawn, then it takes place without consent.

Alex Feis-Bryce, CEO of SurvivorsUK, explains that “If someone has touched you in a sexual way without your consent this is a sexual assault.”

Sexual acts while asleep

Someone who is asleep cannot give their consent to engage in sexual activity, as the Sexual Offences (Scotland) Act 2009 explains, “A person is incapable, while asleep or unconscious, of consenting to any conduct.”

The EVAW report found that around one in 10 people isn’t sure or think it usually or definitely isn’t rape if a man has sex with a person who is very drunk or asleep.

Sex when drunk

Those who do engage in sexual activity with someone who is too drunk to consent, are committing sexual assault.

“If someone does something sexual with you while you’re too drunk to consent, that’s a sexual assault,” explains Mr Feis-Bryce.

The Sexual Offences (Scotland) Act 2009 notes that there are circumstances in which conduct takes place without free agreement, including “where the conduct occurs at a time when B is incapable because of the effect of alcohol or any other substance of consenting to it.”

Revenge porn

Revenge porn is disclosing private sexual images without consent and it is an offence.

In Scotland, people convicted of sharing intimate images without consent could face up to five years in prison under new legislation which came into force in 2017.

The Abusive Behaviour and Sexual Harm Act now makes it easier to prosecute so-called revenge porn.

Upskirting

Upskirting is the term used for when someone uses a camera to take a photo or video up someone’s skirt, without their permission.

This is a sexual offence and can result in jail time.

Upskirting has been illegal in Scotland since 2010 by the Sexual Offences (Scotland) Act 2009, when it was listed under the wider definition of voyeurism.

Sexual assault in a marriage or relationship

It’s sexual assault to force your spouse or partner into sexual activity without their consent.

As aforementioned, the Sexual Offences (Scotland) Act 2009 notes: “Consent to conduct may be withdrawn at any time before, or in the case of continuing conduct, during, the conduct.”

If the conduct then takes place, or continues to take place, after consent has been withdrawn, then it takes place without consent.

The EVAW survey also found that almost a quarter (24 per cent) think that sex without consent in long-term relationships is usually not rape.

EVAW explains that there was a generational divide found in regards to this topic. It says: “More than a third (35 per cent) of over 65s we asked think that in most cases it isn’t rape to have non-consenting sex with your wife or partner, compared to just 16 per cent of 16-24s.

“42 per cent of over 65s generally think that in most cases if a woman changes her mind halfway through but the sex continues, it isn’t rape compared with just 22 per cent of the 25-49s.”