Question reference: S5W-35433
- Asked by: Jeremy Balfour, MSP for Lothian, Scottish Conservative and Unionist Party
- Date lodged: 22 February 2021
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Current status: Answered by Humza Yousaf on 1 March 2021
Question
To ask the Scottish Government, whether it will legislate to classify the act of stealthing (non-consensually removing a condom during sex) as a sexual assault, as is the position in England and Wales.
Answer
While there is no specific provision in Scots law concerning the removal of a condom during sexual activity, the definition of consent at Part 2 of the Sexual Offences (Scotland) Act 2009 defines "consent" as "free agreement". Section 13(2)(d) of that Act provides that sexual activity takes place without consent if the complainer agrees or submits to the conduct because the complainer is mistaken, as a result of deception by the accused, as to the nature or purpose of the conduct. Section 15(2)(a) of that Act provides that consent to conduct does not, of itself, imply consent to any other conduct.
The Scottish Government considers that the courts would be likely to consider that the non-consensual removal of a condom would vitiate consent to sexual activity with a condom as consent to protected sex could not be considered to amount to consent to unprotected sex. However we keep the criminal law under continuous review.