Needful legal cement for our dry stane dyke...

I dislike the shorthand habit of identifying the miscarrying of legislative intention in laws as loopholes. Consider the metaphor. It summons up a wall. A picture of orderliness, rationally cemented, each brick in place. We can sleep serenely, behind such a bastion. The world can be just, and is normally arranged just so.

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 Scotland is riddled with these wormholes. That rational wall is symbolic, dishonest. We're pitted and gnawed through with loopholes. More dry stane dyke than gapless brick.



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 (Scotland) Bill, now in the third and final stage of its passage through Holyrood's legislative paws. While I disagree that any notion of “prior consent” is clearly evidenced in the Bill – section 10(2)(a) is overly vague on circumstances where the complainer is alleged to have “freely agreed” before becoming inebriated. To assist those of you who wouldn’t fancy trawling the web for the particular section of the legislation, this is the wording in issue:

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 7A
(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.

On subsection (c) I wonder what sort of sexual act the Government imagines exists which is "ordinarily" done in public? Answers on a postcard, please.