(1)Any male person who has sexual intercourse with a person related to him in a degree specified in column 1 of the Table set out at the end of this subsection, or any female person who has sexual intercourse with a person related to her in a degree specified in column 2 of that Table, shall be guilty of incest, unless the accused proves that he or she—
(a)did not know and had no reason to suspect that the person with whom he or she had sexual intercourse was related in a degree so specified; or
(b)did not consent to have sexual intercourse, or to have sexual intercourse with that person; or
(c)was married to that person, at the time when the sexual intercourse took place, by a marriage entered into outside Scotland and recognised as valid by Scots law.
| Column 1 | Column 2 |
|---|---|
| 1. Relationships by consanguinity | |
| Mother | Father |
| Daughter | Son |
| Grandmother | Grandfather |
| Grand-daughter | Grandson |
| Sister | Brother |
| Aunt | Uncle |
| Niece | Nephew |
| Great grandmother | Great grandfather |
| Great grand-daughter | Great grandson |
| 2. Relationships by adoption | |
|---|---|
| Adoptive mother or former adoptive mother. | Adoptive father or former adoptive father. |
| Adopted daughter or former adopted daughter. | Adopted son or former adopted son. |
| [F13. Relationships by virtue of Part 2 of the Human Fertilisation and Embryology Act 2008 | |
|---|---|
| Mother | Father |
| Daughter | Son |
| Second female parent by virtue of section 42 or 43 of that Act] | |
(2)For the purpose of this section, a degree of relationship exists in the case of a degree specified in paragraph 1 of the Table—
(a)whether it is of the full blood or the half blood; and
(b)even where traced through or to any person whose parents are not or have not been married to one another.
(3)For the avoidance of doubt sexual intercourse between persons who are not related to each other in a degree referred to in subsection (1) above is not incest.
Textual Amendments
F1S. 1(1) Table: para. 3 inserted (6.4.2009 for specified purposes and otherwise 1.9.2009) by Human Fertilisation and Embryology Act 2008 (c. 22), ss. 56, 68(2), Sch. 6 para. 55; S.I. 2009/479, art. 6(1)(e)(2) (as amended by S.I. 2009/2232, art. 3)
Any step-parent or former step-parent who has sexual intercourse with his or her step-child or former step-child shall be guilty of an offence if that step-child is either under the age of 21 years or has at any time before attaining the age of 18 years lived in the same household and been treated as a child of his or her family, unless the accused proves that he or she—
(a)did not know and had no reason to suspect that the person with whom he or she had sexual intercourse was a step-child or former step-child; or
(b)believed on reasonable grounds that that person was of or over the age of 21 years; or
(c)did not consent to have sexual intercourse, or to have sexual intercourse with that person; or
(d)was married to that person, at the time when the sexual intercourse took place, by a marriage entered into outside Scotland and recognised as valid by Scots law.
F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F2S. 3 repealed (1.12.2010) by Sexual Offences (Scotland) Act 2009 (asp 9), ss. 61(2), 62(2), sch. 6; S.S.I. 2010/357, art. 2(a)
(1)Proceedings in respect of an offence under section 1 [F4or 2] of this Act may be brought on indictment or, if the Lord Advocate so directs, on a summary complaint before the sheriff.
(2)Summary proceedings in pursuance of this section may be commenced at any time within the period of 6 months from the date on which evidence sufficient in the opinion of the Lord Advocate to justify the proceedings comes to his knowledge.
(3)Subsection (3) of section 136 of the M1Criminal Procedure (Scotland) Act 1995 (date of commencement of summary proceedings) shall have effect for the purposes of subsection (2) above as it has effect for the purposes of that section.
(4)For the purposes of subsection (2) above, a certificate of the Lord Advocate as to the date on which the evidence in question came to his knowledge is conclusive evidence of the date on which it did so.
(5)Subject to subsection (6) below, a person guilty of an offence under section 1 [F4or 2] of this Act shall be liable—
(a)on conviction on indictment, to imprisonment for any term of imprisonment up to and including life imprisonment; and
(b)on summary conviction, to imprisonment for a term not exceeding 3 months.
(6)Before passing sentence on a person convicted of any such offence, the court shall—
(a)obtain information about that person’s circumstances from an officer of a local authority or otherwise and consider that information; and
(b)take into account any information before it which is relevant to his character and to his physical and mental condition.
(7)In subsection (6) above, “local authority” has the meaning assigned to it by section 1(2) of the M2Social Work (Scotland) Act 1968.
Textual Amendments
F3S. 4: words in section title substituted (1.12.2010) by Sexual Offences (Scotland) Act 2009 (asp 9), ss. 61(1), 62(2), sch. 5 para. 1(3); S.S.I. 2010/357, art. 2(a)
F4Words in s. 4(1)(5) substituted (1.12.2010) by Sexual Offences (Scotland) Act 2009 (asp 9), ss. 61(1), 62(2), sch. 5 para. 1(2); S.S.I. 2010/357, art. 2(a)
Modifications etc. (not altering text)
C1S. 4(2)-(4) applied (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss. 319, 333; S.S.I. 2005/161, art. 3 (as amended by S.S.I. 2005/375, art. 2)
Marginal Citations