Queer errors - unsightly gawping gaps in the architecture - these loopholes - can be cosily ignored as unpredictable and erroneous. The uprightness of the structure is beyond doubt.
A frequent theme in this blog is the sheer extent to which the law in
Interesting story in the Scotland on Sunday today concerning a last-gasp submission from the Rape Crisis Centre to the Scottish Parliament on the Sexual Offences (
10 Circumstances in which conduct takes place without free agreement
(1) For the purposes of section 9, but without prejudice to the generality of that section, free agreement to conduct is absent in the circumstances set out in subsection (2).
(2) Those circumstances are—
(a) where the only indication or expression of consent by B to the conduct occurs at a time when B is incapable, because of the effect of alcohol or any other substance, of consenting to it
The Rape Crisis Centre are right. That “only” does make more unclear than is necessary what the legal disposal ought to be, where the “consenting moment” is potentially ambiguous or is interfered with by intervening circumstances. Although one could argue that resort can be made to the “generality of the section” in interpretation, since the problem is pointed out now, there is no need to resort to deft judicial construction later. Although many of the remarks made by my favourite scrimshander, Margie Curran MSP - concerning general drunkenness and capacity to consent - clearly fall within the ambit of section as drafted, pre-empting this difficulty and making sure clear language is employed is only right and proper.
P.S. One of the amendments made by the Government at stage 2 was to introduce the offence of "voyeurism" in section 7. The interpretation part of the wannabe statute made be smile, in its definition of a "private act":
7B Interpretation of section 7AOn subsection (c) I wonder what sort of sexual act the Government imagines exists which is "ordinarily" done in public? Answers on a postcard, please.
(1) For the purposes of section 7A, a person is doing a private act if the person is in a place which in the circumstances would reasonably be expected to provide privacy, and—
(a) the person’s genitals, buttocks or breasts are exposed or covered only with underwear,
(b) the person is using a lavatory, or
(c) the person is doing a sexual act that is not of a kind ordinarily done in public.