Glossary of terms
Content warning: this content contains explicit references to acts of sexual harassment, violence, and misconduct.
Approved approach and position on GBV
The definition below was approved by the previous GBV Joint Strategy Group on 24 April 2018.
The United Nations Declaration on the Elimination of Violence Against Women states that violence against women is:
"any act of gender‐based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women... “and is “violence that is directed at a woman because she is a woman or that affects women disproportionately". Art. 3 d, Council of Europe Convention on preventing and combating violence against women and domestic violence states: “[G]ender‐based violence against women” shall mean violence that is directed against a woman because she is a woman or that affects women disproportionately[.] The current Scottish Government approach is guided by the definition adopted by the United Nations, and hence the Government’s current framework Equally Safe: Scotland’s strategy for preventing and eradicating violence against women and girls recognises gender‐based violence as a both a cause and consequence of gender inequality.
Gender-based violence definitions
Some definitions are taken from the UUK Report Changing the Culture 2016 and primarily refer to Scottish legislation.
The sexual offences below are part of the criminal law. In Scotland, sexual offences are regulated under the Sexual Offences (Scotland) Act 2009 (2009 Act).
The 2009 Act came into force in 2010, bringing with it a number of significant changes to the law on sexual offences in Scotland. The definition of rape is now wider than was previously the case, reflecting a recognition within the law that men as well as women can be victims of rape.
Consent is now defined in statute in Scotland for the very first time as ‘free agreement’, and several scenarios are set out where, if proven, it is presumed that no consent was given - for example when an individual is unconscious or asleep, or the effects of alcohol or other substances render them incapable of consenting.
The new Scottish law legislates on a number of related offences. These include sexual coercion (forcing others to take part in sexual activities without their consent), voyeurism, sexual exposure, and sending indecent images by email or text. This Act also extends its jurisdiction beyond the UK in cases where offences against children are committed abroad.
Rape is a criminal offence and defined under section 1 of the 2009 Act. The offence requires the penetration of the vagina, anus or mouth, by a penis, without consent. Both men and women can be raped, however, the requirement of penile penetration means that, in law, rape can only be committed by an individual with a penis.
The definition of penis includes those which have been surgically constructed, meaning that trans individuals with a penis, whether that be natural or surgical, can commit rape. If an individual with a vagina forced an individual with a penis to penetrate her this would not be rape but charged as another sexual offence. A man can rape a woman by putting his penis in her mouth without consent. If a woman performs oral sex on a man without his consent, this would not be rape but charged as another sexual offence. The maximum sentence for rape is life imprisonment indicating the seriousness of this offence in law.
Sexual assault by penetration
Sexual assault by penetration is a criminal offence and defined under section 2 of the 2009 Act. The offence can be committed by a man or a woman and requires the penetration of the vagina or anus by a body part (such as fingers or tongue) or anything else (such as a bottle or vibrator) without consent. Thus, a woman who penetrates another woman’s vagina with her fingers without consent could be charged with this offence. Note that unlike rape, this offence does not include penetration of the mouth. The maximum sentence for this offence is life imprisonment, indicating the seriousness of this offence in law.
Sexual assault is a criminal offence and defined under section 3 of the 2009 Act. The offence can be committed by a man or a woman and includes touching without consent where the touching is sexual. For example, the unwanted touching of a woman’s breasts or a person’s genital area or buttocks, or unwanted kissing would be a sexual assault. The touching can be through clothing or anything else (such as a bedsheet) and includes touching done with any part of the body or anything else. The touching can also be done recklessly- meaning there does not need to be any particular motive behind the act, such as sexual gratification. The term sexual assault is sometimes wrongly used as a generic term to include or indicate other sexual offences. The maximum sentence for sexual assault is 10 years’ imprisonment.
A non-legal term used as an umbrella term to refer to and include the different sexual offences.
The Equality Act 2010 makes it a civil offence to harass someone for a reason connected to a protected characteristic. Sex is a protected characteristic. Under section 26(2) of the Equality Act 2010, harassment is defined as unwanted conduct of a sexual nature which has the purpose or effect of violating the recipient’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. It is a prohibited conduct under the Equality Act 2010; however, it is not a criminal offence, and the remedy for victims will therefore be civil (i.e. compensation). The Equality Act 2010 also creates an offence of ‘victimisation’, which ensures that an individual who complains they have been harassed will not consequently be disadvantaged by their employer or educational institution etc.
Harassment in general (not specifically sexual) is a civil offence under the Protection from Harassment Act 1997 which, under section 8, allows a ‘non-harassment order’ to be granted in order to protect a claimant. The criminal law is engaged under this Act because a breach of a ‘non harassment order’ will be a criminal offence punishable by up to 5 years imprisonment (section 9). The civil offence of harassment is only committed if there is a course of conduct, meaning the harassment (including speech and online harassment) has occurred more than once.
There is no specific criminal offence of sexual harassment in the UK law. However, behaviour referred to as ‘sexual harassment’ can be criminal under various pieces of legislation, depending on the nature and severity of the incident. The types of behaviours or conduct which make up sexual harassment are varied and may include verbal harassment such as whistling, catcalling, sexual comments, sexual innuendo, telling sexual jokes and stories, spreading rumour about a person’s sex life; nonverbal harassment such as looking someone up and down, displaying pictures of a sexual nature, sending emails containing sexual content, making sexual gestures, and asking for sexual favours.
Sexual harassment will overlap with the criminal law on sexual offences once any touching of the other person is involved for example, physical unwanted sexual advances, kissing, touching, hugging, stroking, patting of someone’s clothes, body, hair, and rubbing up against someone, where the touching is sexual. Thus, patting someone on the bottom may constitute both a sexual assault and sexual harassment and could be pursued in the criminal courts as a sexual assault. Some forms of sexual harassment may overlap with other criminal offences such as harassment, stalking, and revenge porn.
Stalking is a criminal offence under section 39 of the Criminal Justice and Licensing (Scotland) Act 2010. The offence is only committed where the stalking is a course of conduct (i.e., more than once). Additionally, the perpetrator must either have the intention of causing the victim to suffer fear or alarm OR must have known, or ought to have known, that the conduct would be likely to cause the victim fear or alarm.
The Act sets out several behaviours which constitutes stalking, such as: following the victim, contacting or attempting to contact the victim, publishing any statement or material relating to the victim, monitoring the victim’s online activity, watching or spying on the victim, or interfering with the victim’s property. The offence is punishable by up to 5 years’ imprisonment.
Since 2000 the Scottish Government has defined ‘domestic abuse’ as one of a number of forms of gender-based violence in order to explicitly position it as both a cause and a consequence of women’s inequality. Women experience domestic violence disproportionately from men.
Domestic violence is defined by the government as ‘any incident or pattern of incidents of controlling coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members, regardless of gender or sexuality. The abuse can encompass, but is not limited to:
The Domestic Abuse (Scotland) Act 2018 s1 makes domestic abuse a criminal offence in Scotland. It covers all couples in intimate relationships regardless of whether they live together or are married/ in a civil partnership. It also covers abuse by an ex-partner.
The offence is one of engaging in a course of abusive behaviour meaning there needs to be a minimum of two occasions. The behaviour needs to be either violent, threatening, or intimidating OR needs to be directed at making the victim dependent on the perpetrator, isolating the victim, controlling the victim, depriving the victim of their freedom, or frightening, humiliating, degrading, or punishing the victim. The penalty is indicative of how seriously these behaviours are now viewed in law, with punishment of up to 14 years imprisonment.
It is also possible for domestic abuse victims to be protected by non-harassment orders where the harassment amounts to domestic abuse under section 8A of the Protection from Harassment Act 1997 (as amended by the Domestic Abuse (Scotland) Act 2011).
Controlling and coercive behaviour
The concept of coercive control was first devised by Evan Stark (2007). Coercion is defined as ‘the use of force or threats to compel or dispel a particular response’ and the control element refers to ‘structural forms of deprivation, exploitation, and command that compel obedience indirectly’. When coercion and control occur together the victim experiences ‘entrapment’.
The Domestic Abuse (Scotland) Act 2018 recognised this idea of coercive control as a form of abuse and incorporates it into the legislation. This is significant as it shows a recognition of psychological abuse as well as physical.
The 2018 Act only applies to partners and ex-partners however and therefore does not cover coercive or controlling behaviour experienced out with an intimate relationship, for example between family members. The offence is the same as the offence of domestic abuse outlined above: there needs to be a minimum of two occasions of coercive/ controlling behaviour and the behaviour needs to be either violent, threatening, or intimidating OR needs to be directed at making the victim dependent on the perpetrator, isolating the victim, controlling the victim, depriving the victim of their freedom, or frightening, humiliating, degrading, or punishing the victim. The penalty is indicative of how seriously these behaviours are now viewed in law, with punishment of up to 14 years imprisonment.
The law in England and Wales is broader than Scotland and criminalises coercive and controlling behaviour towards a family member under section 76 of the Serious Crime Act 2015. The behaviour by the intimate partner or the family member must have a ‘serious effect’ on the victim for the crime to be committed. A ‘serious effect’ means that it causes B to fear, on at least two occasions, that violence will be used against B, or it causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities (such as socialising, working patterns, mental or physical health deterioration).
Female genital mutilation (FGM)
FGM means any procedure that involves partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons. In Scotland it is illegal under the Prohibition of Female Genital Mutilation (Scotland) Act 2005. In England, Wales and Northern Ireland, the practice is illegal under the Female Genital Mutilation Act 2003.
There is no specific offence of "honour-based crime". It is an umbrella term to encompass various offences covered by existing legislation. Honour based violence (HBV) can be described as a collection of practices, which are used to control behaviour within families or other social groups to protect perceived cultural and religious beliefs and/or honour. Such violence can occur when perpetrators perceive that a relative has shamed the family and/or community by breaking their honour code. Examples of ‘honour’-based violence can vary, but include:
- Forced marriage
- Domestic violence (physical, sexual, emotional or financial abuse)
- Sexual harassment and sexual violence (rape and sexual assault or threat of rape and sexual assault)
- Threats to kill
- Social ostracism or rejection and emotional pressure
- Denial of access to children
- Pressure to go or move abroad
- House arrest and excessive restrictions of freedom
- Denial of access to the telephone, internet, or passport/key documentation
- Isolation from friends and own family
A forced marriage is where one or both people do not or cannot consent to the marriage, and pressure or abuse is used to force them into marriage. There is legislation across the UK to implement protection orders for those at risk of forced marriage.
The Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011 allows a forced marriage protection order to be granted in order to protect a victim or potential victim from forced marriage, and also makes it a criminal offence to breach the order.
Forced marriage is also a criminal offence under the Anti-Social Behaviour and Policing Act 2014 s122(1), however, the idea of criminalising family is not popular amongst victims and the legislation has never been used.
Grooming is when someone builds a relationship, trust and emotional connection with a child or young person so they can manipulate, exploit and abuse them. Children and young people who are groomed can be sexually abused, exploited or trafficked. This is a criminal offence under the Sexual Offences (Scotland) Act 2009.
Child sexual exploitation
Child sexual exploitation (CSE) is a form of child sexual abuse in which a person(s) of any age takes advantage of a power imbalance to force or entice a child into engaging in sexual activity in return for something received by the child and/or those perpetrating or facilitating the abuse. The Sexual Offences (Scotland) Act 2009, the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 and the Human Trafficking and Exploitation (Scotland) Act 2015 together provide for a number of sexual and other offences that can be used to prosecute cases of CSE.
Abusing a position of trust
It is a criminal offence, as outlined in the Sexual Offences (Scotland) Act 2009, that an adult who engages in sexual activity with a child under the age of 18 in respect of whom they are in a 'position of trust' also commits an offence. This reflects that adults in a position of trust may have particular power, influence or control over those in their care, and that it would be a breach of authority and trust to engage in sexual activity with that child, irrespective of whether they have attained the age of consent.
Image-based sexual abuse
Image-based sexual abuse is the term used to cover the taking, making, and sharing of intimate images or videos.
The non-consensual taking of intimate content is a crime called ‘voyeurism’ and is a sexual offence under s9 of the 2009 Act.
The non-consensual sharing of intimate images is a crime under section 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. The offence is committed where an individual discloses or threatens to disclose an intimate photograph or film with intent to cause (or recklessness as to causing) fear, alarm, or distress, without consent. This offence is often colloquially referred to as ‘revenge porn’; however, this term does not appropriately convey the nature and harms of the offence and ‘image-based sexual abuse’ is more appropriate. It is significant to note that the offence includes threats to share images or videos and also includes images or videos which have been altered or photoshopped in some way (i.e. where an individual is made to look as though they were in an intimate situation when they were not). The definition of ‘intimate’ is broad and, for example, includes images or videos of someone in their underwear, regardless of whether there is any sexual nature to the image or video.
Scotland’s Crown Office and Procurator Fiscal set out social media prosecution policy in 2014, which outlined the following may amount to criminal conduct when sent by social media:
- Communications which specifically target an individual or group of individuals in particular communications which are considered to be hate crime, domestic abuse, or stalking.
- Communications which may constitute credible threats of violence to the person, damage to property or to incite public disorder.
- Communications which may amount to a breach of a court order or contravene legislation making it a criminal offence to release or publish information relating to proceedings.
- Communications which do not fall into categories 1,2 or 3 above but are nonetheless considered to be grossly offensive, indecent or obscene or involve the communication of false information about an individual or group of individuals which results in adverse consequences for that individual or group of individuals.
Several of the offences discussed above can also be committed predominantly online depending on the perpetrator’s behaviour. These offences include ‘revenge porn’, harassment, and stalking.