Introduction

The case of Stuart Mitchell Kennedy versus Procurator Fiscal, Aberdeen ([2024] HCJAC 47) presents a significant examination of the boundaries between performance art and sexual misconduct under Scottish law. Kennedy, a male stripper engaged to perform at a hen party, was convicted of sexual offenses following non-consensual physical contact with two audience members. The crux of the case hinged on whether his actions constituted "sexual" under section 60(2) and "sexual assault" under section 3 of the Sexual Offences (Scotland) Act 2009.

Summary of the Judgment

Kennedy was convicted on two counts: sitting on a complainer's lap and attempting to embrace her, and rubbing his body against another complainer without their consent. The High Court of Justiciary upheld the convictions, emphasizing that Kennedy's actions, though part of his performance, lacked consent and were deemed sexual in nature. The court applied an objective test, considering all circumstances, to determine that a reasonable person would view the conduct as sexual. Consequently, Kennedy received a community payback order with a supervision requirement of twelve months.

Analysis

Precedents Cited

The judgment referenced several key precedents to frame its decision. Notably, Wightman v HM Advocate (2017 SCCR 437) was cited to distinguish between actions motivated by entertainment versus sexual gratification. Additionally, the court referred to Procurator Fiscal, Edinburgh v Harper [2024] SAC (Crim) 10, which similarly addressed the irrelevance of the defendant's motivation in determining the sexual nature of conduct. These cases collectively reinforced the principle that the context and consensual aspects of interactions are paramount in assessing sexual offenses.

Legal Reasoning

The court employed an objective standard rooted in section 60(2) of the Sexual Offences (Scotland) Act 2009, which defines conduct as "sexual" based on what a reasonable person would perceive in the given circumstances. The key elements examined were the lack of consent and the nature of the physical contact. Despite Kennedy's argument that his actions were part of a comedic performance, the court determined that the deliberate and non-consensual touching, especially of sexually sensitive areas, overshadowed any performative intent. The underlying theme was to protect the sexual autonomy of individuals, asserting that no performative context can justify the infringement of another's consent.

Impact

This judgment reinforces the sanctity of consent within all contexts, including entertainment. It sets a precedent that performers cannot assume consent from audience members and that non-consensual physical contact, even if part of a performance, can constitute a criminal offense. As a result, this decision is likely to influence future cases by emphasizing the importance of consent and may lead to stricter regulations and guidelines for performers engaging in activities that involve physical interactions with audiences.

Complex Concepts Simplified

Conclusion

The High Court of Justiciary's decision in HCJAC 47 underscores the paramount importance of consent and sexual autonomy, regardless of contextual justifications such as performance or entertainment. By affirming that non-consensual physical contact constitutes sexual assault even within a performative setting, the court reinforces the legal boundaries safeguarding individual rights. This judgment not only provides clarity on interpreting sexual offenses in complex contexts but also serves as a pivotal reference for future cases where the intersection of performance and consent is contested.