Sexual Offences (Scotland) Act 2009

Sexual Offences (Scotland) Act 2009

2009 asp 9

Commentary on Sections

Part 4 – Children

Older Children

Section 30 – Engaging in sexual activity with or towards an older child

82. This section creates the offence of “engaging in sexual activity with or towards an older child”. Subsection (1) provides that the offence may be committed only by a person aged 16 or over.

83. Subsection (2) sets out five separate sexual acts, each of which constitute an offence. It also provides that, in each case, in order to commit an offence the perpetrator must either act intentionally or recklessly when carrying out one of these sexual acts. The five sexual acts are:

(a)

penetrating an older child’s vagina, anus or mouth by any means in a sexual way;

(b)

touching an older child in a sexual way;

(c)

having any other sexual physical contact with an older child, whether directly or through clothing and whether with a body part or with an implement;

(d)

ejaculating semen onto an older child, and

(e)

intentionally or recklessly emitting urine or saliva onto a young child in a sexual way.

84. Subsection (3) provides that penetration “by any part of A’s body” for the purposes of subsection (2) includes with the perpetrator’s penis. This means that there is an overlap between the conduct which constitutes the offence of engaging in sexual activity with an older child, that of having intercourse with an older child at section 28 and that of engaging in penetrative sexual activity with an older child at section 29. This is necessary for the same reasons as specified for the overlap between the offences at section 1, 2 and 3 of the Bill (see paragraph 12 above).