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Sexual Offences (Scotland) Act 2009
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38Penetration and consent for the purposes of section 37S
This section has no associated Explanatory Notes
(1)This section applies for the purposes of section 37.
(2)Penetration is a continuing act from entry until withdrawal of whatever is intruded.
(3)“Consent” means free agreement (and related expressions are to be construed accordingly).
(4)Without prejudice to the generality of subsection (3), free agreement to conduct is absent in the circumstances set out in section 13(2) (references in that section to A and B being construed in accordance with section 37).
(5)A person is incapable, while asleep or unconscious, of consenting to any conduct.
(6)Consent to conduct does not of itself imply consent to any other conduct.
(7)Consent to conduct may be withdrawn at any time before, or in the case of continuing conduct, during, the conduct.
(8)If the conduct takes place, or continues to take place, after consent has been withdrawn, it takes place, or continues to take place, without consent.
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