St Andrew's Cross

St Andrew's Cross

Scotland has passed into law a new “Sexual Offences Act” an event that should herald an upgrade of existing legislation to accommodate the changing needs of society in an information age.  It seeks to protect individuals from unwanted sexual communications. In itself a perfectly reasonable aim. However some of the wording seems so ambiguous as to make its application in reality a prude’s charter to prosecute.

Section 7 of the act, sub-section 3 states the law applies where one individual’s communication is for the purpose of:

(a)      obtaining sexual gratification,

(b)     humiliating, distressing or alarming [another individual].

The first problem is immediately clear. What is the definition of sexual gratification? Deliberately attempting to cause someone distress by using sexual language, insinuation or euphemisms as covered in (b) makes sense, it is a clearly selfish and morally questionable act. But (a) seems to cover everything from flirting mildly to explicit requests for sexual favours.

Maybe (a) is suppose to refer to deriving sexual gratification from the act of communicating using sexual language? If so why doesn’t it specify that?

Section 7 covers all types of communication, it also touches on and totally fails to address the matter of consent thus:

If a person ( “A”), intentionally and for a purpose mentioned in subsection (3), sends, by whatever means, a sexual written communication to or directs, by whatever means, a sexual verbal communication at, another person ( “B”)—

(a)      without B consenting to its being so sent or directed, and

(b)     without any reasonable belief that B consents to its being so sent or directed,

then A commits an offence, to be known as the offence of communicating indecently.

Is this section to be read as “Do you mind if I make a remark about you which may be construed in a sexual way, or a way in which you or others might perceive to be a sexual advance?”?

It’s going to destroy any spontaneity to chatting-up or being chatted up isn’t it, be that on-line or off.

So in summary as with all such badly written legislation much will depend on the discretion of the police and the judiciary to make intelligent and impartial judgements based on the context of the communication, disposition of those involved and an understanding of the vernacular of the particular communication medium. Without understanding all these things and being receptive to the cultural context of a particular environment (be that online or in real life) this law could lead to any number of mischievous complaints against individuals and the conviction of some for the use of language and phrases that are innocuous and/or commonplace within the social environment they are used.

While not wanting to paint the whole of the judiciary with the same brush it may be down to the police and public prosecutors to moderate this law and ensure that meritless cases do not appear in front of the bench, or if they do the judge presiding is furnished with appropriate background information about the context of the communication; That is information over and above the normal presentation of evidence they would normally be called upon to make. While that is not the job of the police it may be the only way to ensure this law is not abused or leads to unwarranted convictions.

The full act can be obtained as a PDF file here.

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