Understanding the changes to Section 3 of the Sexual Offences (Scotland) Act 2009

By Anna MacKay – Senior Associate Director Criminal Defence

What has changed in relation to charges for sexual offences in Scotland and why?

The Law of Scotland in relation to sexual allegations has changed significantly over the past 5 years – the rules of evidence have changed.

It is now easier for the police to piece together a ‘case to answer’ to be sent to the Procurator Fiscal who will prosecute the case at Court. Evidence of the alleged victim’s distress can now be used as corroboration. This means that where traditionally a ‘he said she said’ scenario might not have gone to court, now it likely will.

What is The New Zero Tolerance Approach to Sexual Offences in Scotland

There is a zero-tolerance approach from the police and prosecution: once accused, an allegation of a sexual offence will not easily go away. The most likely outcome is that the Procurator Fiscal will prosecute such an allegation all the way to a trial at court.

Whilst there has been an increase in the number of all types of sexual offences being prosecuted, the biggest increase is in fact at the lower end of the scale of seriousness.

What Can Constitute a ‘Sexual Offence’ Under Section 3 in Scotland?

Section 3 of the Sexual Offences (Scotland) Act 2009 covers a vast range of conduct. Any intentional or reckless sexual touching of another person, without their consent, is a crime.

Some of the types of allegations that we defend on a regular basis include:

• A touch on the bottom on a night out in a club
• A hug or a kiss between 2 people not yet in a relationship
• A touch on the thigh when sitting next to someone in a bar
• Touching someone’s hair and back during conversation

What Are the Consequences of Being Convicted of these Offences?

The police and Crown will view these as sexual offences, to be prosecuted in the same way they would a rape charge. The outcome if convicted? You will be placed on the Sex Offender’s Register.

What Should I Do If Accused of a Sexual Offence in Scotland?

The sooner you engage a solicitor the more can be done to aid in your defence.

So be careful, be safe, know the law and get informed and follow our key steps in your defence:

• Don’t wait until the police get in touch. If someone accuses you, contact us. If you are charged with a sexual offence, your first step is to contact a solicitor immediately. We have a specialist team who know exactly what you should and shouldn’t do.

Even if you believe the accusation is false, it’s best to get legal representation ASAP

• Take screenshots, keep messages and don’t talk to the alleged victim or witnesses – contact us instead and take urgent legal advice.

• This means that if the Police do come calling, you will already know what to do.

We will help prepare you for the interview, liaise with police on your behalf and arrange a voluntary attendance to avoid the police attending at your home or place of work. We will attend the police station with you and protect your interests and rights, advising you throughout.

• If you are charged by the police and receive a citation for court – we will be there to represent you at court and fight your case. Our solicitors have a proven track record of acquittals. We will leave no stone left unturned – and support you every step of the way.

Be safe, know the law, get in touch.