Stuart Mitchell Kennedy v. Procurator Fiscal, Aberdeen [2024] HCJAC 47

Appeal from the Sheriff Appeal Court under section 194ZB of the Criminal Procedure (Scotland) Act 1995:- The appellant was convicted after trial at the sheriff court on summary complaint of two charges under section 3 of the Sexual Offences (Scotland) 2009 Act relating to two complainers. The appellant was made the subject of a community payback order with a supervision requirement of 12 months. The circumstances were that the appellant was a male stripper who was performing at a hen party. Charge 1 involved the appellant sitting on the complainer’s lap and attempting to embrace her and charge 2 involved the appellant rubbing his body against the complainer. The appellant appealed against his conviction the issue being whether the touching by the appellant of the two audience members who did not consent to it were “sexual” in terms of section 60(2) of the 2009 Act and whether the touching constituted sexual assaults in terms of section 3 of the 2009 Act. The Sheriff Appeal Court refused the appeal stating that:- “…sexualised entertainment is sexual in nature by definition ... The... motivation behind these deliberate acts is not a relevant consideration in relation to ... dole or mens rea” and that the purpose of the 2009 Act was to protect the sexual autonomy of a complainer and the issue of consent was central to that. The appellant appealed to the High Court. It was submitted on behalf of the appellant that there were a number of factors which were relevant in relation to the question of whether the conduct was “sexual”:- (a) the host of the hen party had hired the appellant; (b) the appellant was registered with Equity and held public liability insurance; (c) the event took place in a private function room of a pub; and (d) the performance was a comedy strip show and the physical interactions were intended to be amusing and not offensive and the SAC had erred in holding that motivation was irrelevant. On behalf of the respondent it was submitted that whether the physical touching was “sexual” was an objective test as defined in the 2009 Act. It was submitted that the appellant’s performance was explicit with an obvious sexual theme and involved him touching the complainers in a provocative way whilst he was naked save a loincloth. Here the court refused the appeal. The court reiterated that section 60(2) of the 2009 Act provides that touching or any other activity is sexual if a reasonable person would, in all the circumstances, consider it to be sexual and section 3 of the 2009 Act provides that it is an offence, to intentionally or recklessly, touch someone else sexually or to engage in any other form of sexual activity involving physical contact with them. The court stated that it is necessary to consider all the circumstances to predict the mindset of the reasonable person and that would include the accused’s motives and so far as the opinions of the Sheriff Appeal Court in the present and in PF Edinburgh v Harper [2024] SCA (Crim) 10 suggested otherwise, the court stated the SAC was in error. In the present case the appellant’s motivation may have been entertainment but that may still be sexual. The court considered that there were present a number of circumstances which pointed to the conduct being sexual including intimate physical contact and the simulation of sexual acts without the consent of the complainers.