Sexual Offences (Scotland) Bill (SOSB)
The SOSB was introduced 17 June 2008 by Kenny MacAskill. It is currently in Stage 3 of the legislative process: Parliamentary debate. The text of the SOSB outlines changed definitions of rape, sexual assault, and other non-consensual sexual acts against adults, “mentally disordered persons”, and children.
Prior to this bill, rape in Scotland was a crime committed by a man against a woman using his penis. This bill removes the gender aspect to the crime by including the mouth and anus along with the vagina. The bill also includes a note stating that “penis” and “vagina” can be artificial, thus including transsexuals, transgendered, and other non-heteronormative people. This is an extraordinary step towards equality for all sexualities.
However, it is not what is said, but what is not said that causes debate. Early on in the process, the Scottish Law Commission recommended that “the law should clearly state that, within certain limits, consensual sadomasochistic practices do not give rise to criminal liability under the law of assault”. (SPICe Briefing 17 Sept 2009 08/48, page 25)
The recommendation to decriminalise sadomasochism was rejected on the grounds that it may complicate prosecution of domestic violence and rape cases, and that “Sadomasochistic activity is intrinsically disordered and introduces violence to an aspect of intimate personal life. The law must protect wider society from the danger of violence being accepted as a legitimate part of sexual relationships.”
MSP Patrick Harvie recently questioned the removal of this section in Parliamentary discussion . However, MSP Kenny MacAskill dismissed his question about alternative approaches to legalising sadomasochism, and immediately responded about sex with 13-15 year olds. It seems that Kenny MacAskill thinks that sadomasochism has something to do with children, much to the surprise of everyone here at CAAN. Our name is, after all, Consenting ADULT Action Network.
The amendments to the bill were published in mid- and late-March. MSP Patrick Harvie proposed an amendment decriminalising BDSM, but this was rejected. We can still hope that the amendment will be re-introduced from Parliament.
Vagueness and lack of definition seem to reign in the Justice Committee, replacing, for example, “an image of a sexual activity” with “a sexual image”. While the bill was strong on equality to begin with, it seems to slide more and more into subjectivity, which will reduce its effectiveness and increase the probability that it will infringe upon people’s rights.