Sexual violence is any unwanted sexual act or activity, including rape and sexual assault.
Sexual violence can be perpetrated by a stranger or by someone known and even trusted, including a friend, colleague, family member, partner or ex-partner.
Anyone, of any gender or sexual orientation, can be subjected to sexual violence.
- Rape, attempted rape and assault with intent to rape: ‘Rape’ is when a man uses their penis to penetrate someone’s vagina, anus or mouth without their consent (the person did not agree to it). The victim of the offence can be any gender.
- ‘Attempted rape’ is when a man tries to rape someone but does not manage to.
- ‘Assault with intent to rape’ is when a man intends to rape someone and assaults them but his conduct does not amount to a charge of attempted rape.
- ‘Sexual assault by penetration’ and ‘sexual assault’: ‘Sexual assault by penetration’ is when the attacker sexually penetrates the vagina or anus of the victim without their consent. The penetration could involve a part of the attacker’s body (for example a finger) or an object (for example a bottle or a vibrator).
The attacker might also use their penis. There is an overlap between the offences of ‘rape’ and ‘sexual assault by penetration’. This is to cover cases where the victim is not sure if they were penetrated by a penis, for example, because they were blindfolded at the time.
The offence of ‘sexual assault’ makes it a crime for the attacker to do any of the following without the victim’s consent and any reasonable belief that they consented:
- Sexually penetrate the vagina, anus or mouth
- Sexually touch the victim
- Engage in any other form of sexual activity which results in physical contact with the victim, directly, through clothing, with a part of the body or an object
- Ejaculate semen onto the victim or urinate or emit saliva onto the victim sexually
There are various other offences with which someone might be charged including:
- Sexual coercion (intended mainly to cover situations where someone forces someone to have sex with another person)
- Offences concerning unlawful sexual activity with children under 16
- Sexual abuse of trust involving children: any sexual activity by someone over 18 with someone under 18 to whom the attacker is in a position of trust, for example a carer
- Sexual abuse of trust involving mentally disordered persons: any sexual activity with someone who suffers from a mental disorder and to whom the attacker is in a position of trust
- Administering a substance (giving someone alcohol or drugs) for sexual purposes
- Incest: sexual intercourse between people related to one another (as specified by law)
- Communicating indecently
- Sexual exposure
The law defines consent as ‘free agreement’.
For rape and sexual assault to be proved in court, it has to be shown that the assault took place without the consent (agreement) of the victim that the person responsible did not reasonably believe that the victim consented. Someone can withdraw consent at any stage even if they initially consented.
The circumstances of what happened may mean that a victim is incapable of ‘free agreement’.
Examples would be if the victim was asleep or unconscious; agreed or submitted because the attacker harmed or threatened to harm them; or the attacker would not let them go. The law also protects people with limited or no capacity to consent because of their young age or a mental disorder.
In many situations, a person might not struggle against an attacker through fear or shock or might be asleep or unconscious at the time.
It may be possible to prove in court that the person responsible knew that the victim did not consent or did not reasonably believe the victim consented even when there was no other physical violence or force.
A man can be found guilty of raping his wife or girlfriend, even if they were living together at the time of the offence, if it can be proved that the intercourse took place without her consent.
It can sometimes be difficult to prove in court that the victim did not consent. By law, there must be two independent pieces of evidence to corroborate (prove) that the victim did not consent and that the attacker knew or disregarded this.
Because such crimes often take place in private, it can be difficult to get enough evidence to prove to a court that the crime took place, that the victim did not consent and that the attacker knew or disregarded this.
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Tea and Consent
Copyright ©2015 Emmeline May and Blue Seat Studios
- Citizens Advice Provide information on rape and sexual assault
- Rape Crisis Scotland Provide information on the different types of sexual violence
- Scottish Government Information and guidance