- Latest available (Revised)
- Point in Time (26/12/2023)
- Original (As enacted)
Point in time view as at 26/12/2023.
There are outstanding changes not yet made by the legislation.gov.uk editorial team to Criminal Procedure (Scotland) Act 1995. Any changes that have already been made by the team appear in the content and are referenced with annotations.
Changes and effects yet to be applied by the editorial team are only applicable when viewing the latest version or prospective version of legislation. They are therefore not accessible when viewing legislation as at a specific point in time. To view the ‘Changes to Legislation’ information for this provision return to the latest version view using the options provided in the ‘What Version’ box above.
(1)Subsection (2) applies where, in a trial on indictment for a sexual offence—
(a)evidence is given which suggests that the sexual activity took place without physical resistance on the part of the person against whom the offence is alleged to have been committed, or
(b)a question is asked, or a statement is made, with a view to eliciting, or drawing attention to, evidence of that nature.
(2)In charging the jury, the judge must advise that—
(a)there can be good reasons why a person against whom a sexual offence is committed might not physically resist the sexual activity, and
(b)an absence of physical resistance does not, therefore, necessarily indicate that an allegation is false.
(3)Subsection (2) does not apply if the judge considers that, in the circumstances of the case, no reasonable jury could consider the evidence, question or statement by reason of which subsection (2) would otherwise apply to be material to the question of whether the alleged offence is proved.
(4)Subsection (5) applies where, in a trial on indictment for a sexual offence—
(a)evidence is given which suggests that the sexual activity took place without the accused using physical force to overcome the will of the person against whom the offence is alleged to have been committed, or
(b)a question is asked, or a statement is made, with a view to eliciting, or drawing attention to, evidence of that nature.
(5)In charging the jury, the judge must advise that—
(a)there can be good reasons why a person may, in committing a sexual offence, not need to use physical force to overcome the will of the person against whom the offence is committed, and
(b)an absence of physical force does not, therefore, necessarily indicate that an allegation is false.
(6)Subsection (5) does not apply if the judge considers that, in the circumstances of the case, no reasonable jury could consider the evidence, question or statement by reason of which subsection (5) would otherwise apply to be material to the question of whether the alleged offence is proved.
(7)For the purposes of this section—
“sexual activity” means the sexual activity which is the subject of the alleged sexual offence,
“sexual offence” means—
rape (whether at common law or under section 1(1) of the Sexual Offences (Scotland) Act 2009),
indecent assault,
sodomy,
clandestine injury to women,
an offence under section 2 of the Sexual Offences (Scotland) Act 2009 (sexual assault by penetration),
an offence under section 3 of that Act (sexual assault),
an offence under section 4 of that Act (sexual coercion).]
Textual Amendments
F1Ss. 288DA, 288DB and cross-heading inserted (24.4.2017) by Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22), ss. 6, 45(2)(3) (with s. 44); S.S.I. 2017/93, reg. 2 (with reg. 5)
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.
Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.
Point in Time: This becomes available after navigating to view revised legislation as it stood at a certain point in time via Advanced Features > Show Timeline of Changes or via a point in time advanced search.
Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.
Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.
Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:
This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.