Committee
Justice Committee, 31 Mar 2009
31 Mar 2009 · S3 · Justice Committee
Item of business
Sexual Offences (Scotland) Bill: Stage 2
Thank you, convener. It has been a while.Amendment 172 relates to the Scottish Law Commission's recommendation in paragraph 5.27 of its report that what it described as "sado-masochistic practices"—perhaps more widely known in society as BDSM activity—should not be a criminal offence. The commission's draft bill included a provision to clarify that, and amendment 172 uses text from that draft bill. The Scottish Government decided not to include the provision in its bill. It is perhaps understandable that a decision not to include a particular measure has had less scrutiny than aspects that are proposed in the bill. I lodged the amendment to ensure that there is some examination of and discussion about the Government's decision not to legislate. Even if the amendment is regarded as a probing amendment, I am keen to give the cabinet secretary the opportunity to state the Government's position and to address some of the underlying questions.The reason why the Government's decision not to include the provision stands out for me is that it appears to conflict with the Government's intention to place a well-understood concept of consent at the heart of the law on sexual offences. It seems to me that if that principle is applied, consenting adults who take part in BDSM activity would not in normal circumstances expect to be committing an offence.As I understand it, the Government is concerned that, if the proposal was included in the legislation, it could be misused by those who are accused of assault that is not part of consensual activity. The example of domestic abuse has been suggested, and the possibility has been raised that such cases could become more difficult to prosecute. I have no wish for that to happen, and I am sure that the committee takes seriously the possibility of unintended consequences. None of us would want to underestimate the harm that domestic abuse causes.However, there are those who argue that it is inherently abusive or wrong for adults to take part in consensual BDSM activity. That is the first issue that I would like the cabinet secretary to address—I would like to be assured that that is not the Government's position. Is the decision not to legislate based on general views about BDSM activity or solely on the possibility of unintended consequences for other cases, such as cases of domestic abuse? If the latter is the case, I would expect the Government to have considered other approaches that might avoid those consequences while recognising adults' right to consent to activity in which they choose to take part.Secondly, if that principle of consent is important, I ask the Government to clarify its understanding of the law both now and under the new legislation, assuming that the bill is passed. Is it the Government's view that BDSM activity between consenting adults when no other party is involved is, in fact, a criminal offence? The Scottish Law Commission's report rightly recognises that there is a lack of clarity in that area, so I would like to know the Government's view. If the cabinet secretary believes that that is a criminal offence at present, does he agree that that is an anomaly and that, all other things being equal, such situations should not be regarded as a priority for prosecution? Situations in which consent is uncontested—where all the people involved agree that there was complete and informed consent between them—should surely not be treated as assaults that are worthy of prosecution and punishment.Finally, and reiterating the importance that we all place on ending the harm that is caused by domestic abuse, I make the case that the situation that faces the BDSM community can also cause harm. Those people are, in many respects, in a similar situation to that in which gay men were before decriminalisation. Perhaps fearing prosecution, and certainly being vulnerable to condemnation in the media, many ordinary people who simply have a different kind of sex life to other people can lose their jobs, their homes and their families as a result of public disapproval. I am not talking about people who have the resources of Max Mosley, who can put up a fight in the courts based on the principle of privacy. I am not talking about people who are in the public eye, against whom a newspaper may make some form of public interest argument, however dubious. There is no clear law on privacy, so it is right that vigorous debate takes place on the matter on both sides. However, when people are caught in the crossfire of that debate, their lives can be ruined.The final question that I ask the cabinet secretary to address is whether the Government recognises the harm that many people in the BDSM community experience due to the current legal uncertainty, regardless of whether prosecutions actually take place? If so, is he open to re-examining the law in the future, with a view to finding ways in which to recognise the legitimacy of consent in the area and to reduce the harm that many ordinary people experience? I know that he and his colleagues have thought carefully about the concept of consent, and I am sure that the committee has also done so during its consideration of the bill. Many people in the BDSM community give more detailed and thoughtful consideration to the meaning and importance of consent than most people do in their daily lives. Surely there should be some scope to take that insight and let it inform the law in the area. I look forward to hearing the cabinet secretary's response.I move amendment 172.
In the same item of business
The Convener:
Con
Agenda item 2 is consideration of the Sexual Offences (Scotland) Bill. This is the third and final day of stage 2 proceedings on the bill. The committee will...
After section 30
Amendment 110 moved—Kenny MacAskill—and agreed to.
The Convener:
Con
Amendment 133, in the name of Robert Brown, is in a group on its own.
Robert Brown:
LD
The committee will remember that, in our stage 1 discussions on the bill, one of the more significant issues was the Government's lack of pre-consultation wi...
Bill Butler (Glasgow Anniesland) (Lab):
Lab
Amendment 133 seems to be a reasonable addendum. Consulting young people appropriately chimes with what the committee said in its stage 1 report. I hope that...
The Convener:
Con
The amendment is consistent with the committee's report, although there have been doubts about the practicality of the proposal.
Stewart Maxwell (West of Scotland) (SNP):
SNP
I sympathise with Robert Brown's and Bill Butler's comments on the intention behind amendment 133, but am not entirely convinced that such information should...
Cathie Craigie (Cumbernauld and Kilsyth) (Lab):
Lab
Almost every organisation that represents young people that gave evidence to the committee expressed serious concerns about the lack of age-appropriate consu...
The Cabinet Secretary for Justice (Kenny MacAskill):
SNP
Amendment 133 seeks to impose on the Government two obligations that would require to be discharged before commencement of part 4. The first would be to cons...
Robert Brown:
LD
I have been a minister and made observations about alleged technical deficiencies. I do not think that the amendment has technical deficiencies, because it w...
Amendment 133, by agreement, withdrawn.
Section 31—Sexual abuse of trust
Amendment 45 moved—Kenny MacAskill—and agreed to.
Section 31, as amended, agreed to.
Section 32—Positions of trust
The Convener:
Con
Amendment 135, in the name of the minister, is grouped with amendments 143 and 151.
Kenny MacAskill:
SNP
The amendments would amend the power in section 32 to modify the definition of a position of trust. Amendment 135 deletes the existing power to define additi...
Amendment 135 agreed to.
The Convener:
Con
Amendment 136, in the name of the minister, is grouped with amendments 137 to 142, 144 and 145.
Kenny MacAskill:
SNP
The amendments alter what constitutes a position of trust in relation to a person B who is under 18. The amendments will ensure that any teacher, care home w...
Amendment 136 agreed to.
Amendments 137 to 143 moved—Kenny MacAskill—and agreed to.
Section 32, as amended, agreed to.
Section 33—Interpretation of section 32
Amendments 144 and 145 moved—Kenny MacAskill—and agreed to.
Section 33, as amended, agreed to.
Section 34—Sexual abuse of trust: defences
Amendment 46 moved—Kenny MacAskill—and agreed to.
Section 34, as amended, agreed to.