It's the bicycle that makes the difference

In the first post on this blog, about Robert Stewart’s sexual escapades with a bicycle in an Ayrshire hostel, I included a link to the case of Steven Marshall, who pled guilty to simulating sex with a Galashiels pavement after drinking while taking medication for arthritis.

At the time, Sheriff Drummond deferred sentence for background reports and placed Mr Marshall on the sex offenders’ register for five years. He seems now to have decided that this was unnecessary: according to the BBC News website, he ruled yesterday that there was not a significant sexual aspect to the case, and so Mr Marshall could be sentenced to 12 months probation without being placed on the register.

It seems rather odd to say that there is not a significant sexual aspect involved in simulating sex. (Perhaps not, though: actors and actresses interviewed about filming sex scenes invariably remark about how non-sexual they are. Unless you’re Jonathan Rhys Meyers, who when asked about The Tudors (click here and scroll down), somehow stumbled into saying “But when you’ve worked with somebody like I’ve worked with Natalie Dormer for a second season and then you’re kind of like doing a sex scene, you know each other so well, it’s like a sex scene with your sister…”)

But why is this even the relevant question? Isn’t public indecency – the offence to which Mr Marshall pled guilty - by definition a sexual offence in terms of the sex offenders’ register? The answer to that question is not apparent on the face of the legislation. In Scotland, the relevant offences are those listed in paragraphs 36-60 of Schedule 3 to the Sexual Offences Act 2003. They include at paragraph 42 “[s]hameless indecency, if a person (other than the offender) involved in the offence was under 18”, and at paragraph 60 (as a catch-all provision) any offence not specified in the list “if the court, in imposing sentence or otherwise disposing of the case, determines for the purposes of this paragraph that there was a significant sexual aspect to the offender’s behaviour in committing the offence”.

The question asked by Sheriff Drummond is relevant under paragraph 60 but not under paragraph 42. So, which does Mr Marshall’s case fall under? Does “shameless indecency” include “public indecency”? This apparent ambiguity arises because the 2003 Act was passed before the appeal court judicially abolished the crime of shameless indecency and replaced it with the (supposedly) narrower crime of public indecency (Webster v Dominick 2005 JC 65).

The ambiguity has, however, been addressed by the appeal court in Nelson v Barbour 2007 SCCR 283, which seems to hold that the reference to “shameless indecency” in the 2003 Act must now be read as “public indecency”. On that basis, Mr Marshall’s case is a paragraph 42 one and any question of a “sexual aspect” was irrelevant. Instead, the correct question was whether someone under 18 was “involved”. (The answer to that question is uncertain. Being a witness is probably enough to be "involved" in a case of public indecency, given that the offence is based on the conduct's potential to offend those witnessing it. The BBC refers to a “young woman” as being one of the witnesses, but does not give her age.)

This analysis may be unfair, based as it is on a news report which does not set out Sheriff Drummond’s reasoning in full. Moreover, dealing with the case in this way seems to have reached a desirable result: it is not clear what good placing Mr Marshall on the sex offenders’ register would have done. But, remembering that Mr Stewart was placed on the register on the basis of the catch-all provision, the question has to be asked: why was it sexual for Mr Stewart to simulate sex but not for Mr Marshall? Is it the bicycle that makes the difference?