Illegal homosexual acts legislation: FOI release

Information requested

You asked, with reference to FOI release - 202100235197 ‘You state 91 Illegal homosexual acts have occurred. Please detail what these are in plain language. What the legislation and relevant sections of that legislation for these offences are. and indicate if these are counted in other columns of the foi.’

Response

A range of charges will be recorded under this crime code, relating to the below legislation; 

• Criminal Justice (Scotland) Act 1980 Section 80 (7)
• Criminal Law (Consolidation) (Scotland) Act 1995
• Section 13 CRIMINAL LAW AMENDMENT ACT 1885 SECTION 11 
• Sexual Offences (Scotland) Act 1976 Section 7 

The heading ‘illegal homosexual acts’ is used to record a range of historical crimes (for example sodomy or indecent assault) which were committed before 1 December 2010, but not reported until the year stated in the table. When police receive reports of historical crime, these are recorded in line with the legislation that pertained at the time of the incident. Had these crimes been committed on or after the 1 December 2010, they would have instead been recorded as rape or sexual assault. This was the date the Sexual Offences (Scotland) Act 2009 was enacted, which does not distinguish offences on the basis of the victim or perpetrator’s gender. 

Prior to the 1 April 2018, it is possible the heading ‘illegal homosexual acts’ may also have included any historical report of consensual sexual activity between adult males, which would be legal today. 

However, this is likely to have happened to a negligible extent, if at all. From the 1 April 2018 onwards, the guidance used by Police Scotland to record ‘illegal homosexual acts’ now notes that any reports of historic sexual acts between consenting same sex partners, which would if occurring today in the same circumstances no longer be a crime, will not be recorded as crimes regardless of the legislation in place at the material time. This amendment was made by the Scottish Crime Recording Board. 

We don’t hold the information to show which of the specific illegal homosexual acts presented in the recorded crime table led to either a conviction, or the perpetrator being added to the registered Sex Offender list. 

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