Finding free agreement: the meaning of consent in sexual offences in Scots criminal law

Research output: Chapter in Book/Report/Conference proceedingChapter

Abstract

Much of the Sexual Offences (Scotland) Act 2009 came into force (without retrospective effect) on 1st December 2010. Hitherto, the position in Scots law was that the meaning of consent was regarded as obvious, commonsensical and unelucidated: "the word 'consent' ha[s] no special meaning in law but require[s] to be given its normal meaning" (Marr v HM Advocate 1996 SCCR 696 at 699 per Lord Justice-Clerk Ross). The 2009 Act introduced a statutory definition: "free agreement" (s 12) together with six situations in which consent is deemed to be absent (s 13). Through an examination of reported cases under various sections of the 2009 Act, this chapter will seek to identify the current meaning of "consent" in Scots law. This is not a straightforward enterprise: no reported appeal case has, as yet, been required to consider the definition of "free agreement". Rather, an attempt will be made to piece together the current position on this issue from an examination of reported cases in which an absence of "consent" was required for conviction – with reference to the pre-existing law as appropriate.
LanguageEnglish
Title of host publicationConsent
Subtitle of host publicationDomestic and Comparative Perspectives
EditorsAlan Reed, Michael Bohlander
Place of PublicationMilton Park, Abingdon, Oxon
Pages191-204
Number of pages14
StatePublished - 28 Oct 2016

Publication series

NameSubstantive Issues in Criminal Law
PublisherRoutledge

Fingerprint

sexual offense
criminal law
Law
act
examination
appeal
justice

Keywords

  • sexual consent
  • law
  • Scotland

Cite this

McDiarmid, C. (2016). Finding free agreement: the meaning of consent in sexual offences in Scots criminal law. In A. Reed, & M. Bohlander (Eds.), Consent: Domestic and Comparative Perspectives (pp. 191-204). (Substantive Issues in Criminal Law). Milton Park, Abingdon, Oxon.
McDiarmid, Claire. / Finding free agreement : the meaning of consent in sexual offences in Scots criminal law. Consent: Domestic and Comparative Perspectives. editor / Alan Reed ; Michael Bohlander. Milton Park, Abingdon, Oxon, 2016. pp. 191-204 (Substantive Issues in Criminal Law).
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McDiarmid, C 2016, Finding free agreement: the meaning of consent in sexual offences in Scots criminal law. in A Reed & M Bohlander (eds), Consent: Domestic and Comparative Perspectives. Substantive Issues in Criminal Law, Milton Park, Abingdon, Oxon, pp. 191-204.

Finding free agreement : the meaning of consent in sexual offences in Scots criminal law. / McDiarmid, Claire.

Consent: Domestic and Comparative Perspectives. ed. / Alan Reed; Michael Bohlander. Milton Park, Abingdon, Oxon, 2016. p. 191-204 (Substantive Issues in Criminal Law).

Research output: Chapter in Book/Report/Conference proceedingChapter

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AB - Much of the Sexual Offences (Scotland) Act 2009 came into force (without retrospective effect) on 1st December 2010. Hitherto, the position in Scots law was that the meaning of consent was regarded as obvious, commonsensical and unelucidated: "the word 'consent' ha[s] no special meaning in law but require[s] to be given its normal meaning" (Marr v HM Advocate 1996 SCCR 696 at 699 per Lord Justice-Clerk Ross). The 2009 Act introduced a statutory definition: "free agreement" (s 12) together with six situations in which consent is deemed to be absent (s 13). Through an examination of reported cases under various sections of the 2009 Act, this chapter will seek to identify the current meaning of "consent" in Scots law. This is not a straightforward enterprise: no reported appeal case has, as yet, been required to consider the definition of "free agreement". Rather, an attempt will be made to piece together the current position on this issue from an examination of reported cases in which an absence of "consent" was required for conviction – with reference to the pre-existing law as appropriate.

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McDiarmid C. Finding free agreement: the meaning of consent in sexual offences in Scots criminal law. In Reed A, Bohlander M, editors, Consent: Domestic and Comparative Perspectives. Milton Park, Abingdon, Oxon. 2016. p. 191-204. (Substantive Issues in Criminal Law).