“Do I have your permission to say something sexual?” – Scotland’s new law against “indecent communication”

Scotland, sex and decency. The combination of the three has long been known to generate weird and authoritarian outcomes. The scottish law against “Outraging Public Decency” appears to potentially criminalise anything that people might find a bit icky, and not long ago was used to convict somebody for having sex with his bicycle in the privacy of his own hotel room (don’t ask me about the logistics). The poor man ended up on the sexual offenders register.

In October Scotland’s new Sexual Offences Act will come into force. Unlike the 2003 Act that was written for England and Wales, the Scottish act contains a clause outlawing “indecent communication”. It will soon be illegal to communicate with someone sexually – either in writing or in speech – without obtaining their consent, or without the ‘reasonable belief’ that they do consent to it. Quite simply they have taken the standard traditionally applied to rape – to the actual penetration of another person’s body – and applied it to what people say.

Thankfully it is fairly normal to ensure that somebody consents to sexual intercourse. This is because putting your penis inside another person can have a serious and lasting affect on them, not least if they do not want it there. More generally people expect to enjoy sovereignty over their bodies and their physical experiences. By contrast we do not have – nor would any sane person require – a general right to be protected from hearing things we don’t want to hear. And that is why, in our culture, it is not normal to ask people for permission to say something sexual during the course of a facebook chat or a conversation in a bar. “Do you mind if I deploy an innuendo” just wouldn’t sound right. And quite frankly it shouldn’t.

Whether people get off with each other in bars, or engage in mundane msn conversations that degenerate into bad internet sex, people frequently make the transition from polite conversation into something more erotic. And this very often necessitates somebody saying something on a whim, somebody communicating some sexual feeling in the hope that it will be reciprocated. And sometimes that means saying something under circumstances that don’t quite match up to a “reasonable belief in consent”.

People’s styles differ. Some people take little baby steps, fearful of embarrassing either themselves or the subject of their attraction. Other people like going at it full throttle, precociously making their feelings and intentions clear. And some of the latter group might be pricks. Equally some people are better at reading social and sexual signals than others. But acutally criminalising prickishness or a lack of social intelligence  - simply to prevent people hearing the wrong thing  - is, in this context, unjustified and an overuse of criminal law. And this is not  least because every grown man and woman is capable of articulating a two word sentence ending in “off”.

Cross-posted from The Third Estate.