“Do I have your permission to say something sexual?” – Scotland’s new law against “indecent communication”.
Posted Under: Civil Liberties,Gender Politics,Scotland
Scotland, sex and decency. The combination of the three has long been known to generate weird and authoritarian outcomes. The scottish law against “Outraging Public Decency” appears to potentially criminalise anything that people might find a bit icky, and not long ago was used to convict somebody for having sex with his bicycle in the privacy of his own hotel room (don’t ask me about the logistics). The poor man ended up on the sexual offenders register.
In October Scotland’s new Sexual Offences Act will come into force. Unlike the 2003 Act that was written for England and Wales, the Scottish act contains a clause outlawing “indecent communication”. It will soon be illegal to communicate with someone sexually – either in writing or in speech – without obtaining their consent, or without the ‘reasonable belief’ that they do consent to it. Quite simply they have taken the standard traditionally applied to rape – to the actual penetration of another person’s body – and applied it to what people say.
Thankfully it is fairly normal to ensure that somebody consents to sexual intercourse. This is because putting your penis inside another person can have a serious and lasting affect on them, not least if they do not want it there. More generally people expect to enjoy sovereignty over their bodies and their physical experiences. By contrast we do not have – nor would any sane person require – a general right to be protected from hearing things we don’t want to hear. And that is why, in our culture, it is not normal to ask people for permission to say something sexual during the course of a facebook chat or a conversation in a bar. “Do you mind if I deploy an innuendo” just wouldn’t sound right. And quite frankly it shouldn’t.
Whether people get off with each other in bars, or engage in mundane msn conversations that degenerate into bad internet sex, people frequently make the transition from polite conversation into something more erotic. And this very often necessitates somebody saying something on a whim, somebody communicating some sexual feeling in the hope that it will be reciprocated. And sometimes that means saying something under circumstances that don’t quite match up to a “reasonable belief in consent”.
People’s styles differ. Some people take little baby steps, fearful of embarrassing either themselves or the subject of their attraction. Other people like going at it full throttle, precociously making their feelings and intentions clear. And some of the latter group might be pricks. Equally some people are better at reading social and sexual signals than others. But acutally criminalising prickishness or a lack of social intelligence - simply to prevent people hearing the wrong thing - is, in this context, unjustified and an overuse of criminal law. And this is not least because every grown man and woman is capable of articulating a two word sentence ending in “off”.
Reader Comments
Links please!
I’ve tried googling this and can’t find any references to what you’re talking about, including in this post.
Thanks.
Link to the act is in the post now. It is the 2009 act though will be implemented October this year. It’s clause 7 of the act
Thanks. That’s interesting.
I’m not a lawyer but the subsection (3) that states that it is an offence if;
“The purposes are—
(a) obtaining sexual gratification,
(b) humiliating, distressing or alarming B.”
I’m not clear whether it has to be one of those, or both. If both then it’s perfectly reasonable for this to be an offence, no?
Someone showing someone else porn or making deliberately lewd comments in order to distress them? (And in a court of law you’d need to be able to show that was their purpose)
It’s interesting that they’ve included sign language – a blow for equality there.
Anyway, I shall check this out with some colleagues in the Scottish Parliament for clarification to see if it means what you think it means. Has it been picked up by anyone else? How did you come across this?
I checked it out with my lawyer girlfriend. She said it was badly worded but we both concluded it means either of the conditions not both. If you look at the law it says that people commit an offence if they male comments “for a purpose mentioned in subsection (3)” ‘a’ being the important word.
That’s very interesting. Disgusting as it is either way, I think the intent in the statute is not to criminalise chatting someone up, but to criminalise a) pervy sex-talkers who get off on the verbal equivalent of flashing schoolgirls and b) people deliberately trying to offend/hurt someone using sexual language/simulated orgasmic sounds etc.
I think there’s a lot riding on the interpretation of ‘for the purposes of sexual gratification’ – if that’s intended to be read as ‘for the *direct* purposes of sexual gratification’, it’s much more acceptable. That is, if the sexual gratification comes from the act of communication, rather than the communication being intended to result in eventual consensual sex, it wouldn’t be covered if that were the case.
There is also a lot riding on ‘(b) without any reasonable belief that B consents to its being so sent or directed,’ – insofar as it may well be reasonable to hold the belief that consent is the default position in adult situations – e.g. a pub, a nightclub – and the opposite is true in other situations – e.g. a church servioe.
Just to be clear, I am not a fan of such sloppy jurisprudence. Laws should not be this unclear.
Further to the above, I checked this with one of my legally qualified friends, and he broadly agreed with me, except:
- The act was actually passed into law (very) slightly differently and can be found: http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=sexual+offences&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=3604553&ActiveTextDocId=3604553&filesize=218038
- The act contains a definition of a reasonable presumption of consent, and, very worryingly, it is the standard definition designed for dealing with rape – far too stringent for something as simple as chatting someone up.
- The apparent intention of ‘for the purposes of sexual gratification’ is to criminalise someone who gets off by shouting sex-talk at people/someone, but there is indeed a very worrying grey area surrounding blatant chat-up lines: ‘Hey baby, wanna make awooga awooga with me’ is not what is intended to be caught, but is very clearly not an overture of platonic friendship.
His overall opinion was that this law will only be applied in very limited circumstances, and, as such, is yet another addition to the corpus of law that is only really useful in allowing police or government harassment of individuals. I was planning on visiting Scotland soon, but now I don’t think I’ll take the risk. Well spotted.
Dave,
Thanks for for your legwork, and I agree v much with what you say. Laws should not be passed on the assumption that they will be applied benevolently.