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

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.