Appeal from SAC by Stewart Mitchell Kennedy against PF Aberdeen (High Court of Justiciary)

Factual and Procedural Background

This appeal concerns the conduct of a male stripper who performed at a hen party. During his performance, he touched and had physical contact with two audience members who did not consent to such contact. The legal question was whether this touching and physical contact were "sexual" under section 60(2) and whether they amounted to sexual assaults under section 3 of the Sexual Offences (Scotland) Act 2009.

The appellant was convicted on two charges relating to these incidents: one involving sitting on a complainer's lap and attempting to embrace her, and the other involving rubbing his body against another complainer. The sheriff imposed a community payback order with a 12-month supervision requirement.

The sheriff found that some attendees were forewarned of the stripper's appearance, while others were not. The appellant performed nearly naked apart from a loincloth and interacted with the audience under the guise of checking for "flammable substances," consistent with his stage persona as a fireman. He touched women's breasts and simulated sexual acts. Both complainers clearly indicated their non-consent, but the appellant persisted in physical contact.

The sheriff held that a reasonable person would consider the appellant's touching and physical contact to be sexual, taking into account the sexual theme and tone of the performance, the appellant's near nudity, and the deliberate nature of the contact. The appellant's motivation to entertain did not change the character of the conduct.

The Sheriff Appeal Court (SAC) upheld the conviction, emphasizing the objective test under section 60 of the 2009 Act, which requires considering all circumstances to determine if conduct is sexual. The SAC rejected reliance on the Civic Government (Scotland) Act 1982 definition of "sexual entertainment" as unhelpful for this determination. It found that sexualized entertainment is sexual by definition and that the appellant's motivation was irrelevant to the question of whether the conduct was sexual. The SAC stressed that the 2009 Act protects sexual autonomy, with consent as the critical boundary between lawful and unlawful conduct.

The appellant raised a compatibility issue under Article 10 of the European Convention on Human Rights, arguing that the SAC's interpretation amounted to an absolute prohibition on touching without express consent, which was disproportionate. The court declined to consider this issue, noting it was not raised at trial or before the SAC, and that the right to freedom of expression does not extend to non-consensual sexual contact. The court also rejected the suggestion that the SAC's ruling introduced a new compatibility issue.

Legal Issues Presented

1. Whether the appellant's touching and physical contact with two audience members without their consent constituted "sexual" conduct under section 60(2) of the Sexual Offences (Scotland) Act 2009.
2. Whether such conduct amounted to sexual assaults under section 3 of the 2009 Act.
3. Whether the interpretation of the statute by the Sheriff Appeal Court infringed the appellant's right to freedom of expression under Article 10 of the European Convention on Human Rights.

Arguments of the Parties

Appellant's Arguments

• The performance was a comedy strip show hired by the host of the hen party, taking place in a private function room, with some attendees aware of the nature of the event.
• The physical interactions were intended to be amusing and entertaining, not sexual, and the host found them amusing and not offensive.
• The Sheriff Appeal Court erred in disregarding the appellant's motivation, which was relevant to the objective test of whether the conduct was sexual under section 60(2).
• The appellant argued that the mental element (mens rea) was met, but the actus reus of sexual conduct was not, because the touching was not sexual in context.
• Reference was made to a paramedic example, illustrating that touching sexually sensitive parts may not be sexual if motivated by non-sexual reasons, such as medical necessity.
• The appellant contended that the SAC incorrectly presumed sexualized entertainment to be sexual per se, and failed to consider that the conduct was part of a performance not motivated by sexual gratification.
• Cited case law included Lord Advocate's Reference (No.2 of 1992) and Wightman v HM Advocate (2017 SCCR 437), arguing for a nuanced consideration of context and motivation.
• The appellant criticized the SAC's treatment of motivation as irrelevant, also referencing Procurator Fiscal, Edinburgh v Harper [2024] SAC (Crim) 10 as similarly erroneous.

Respondent's Arguments

• The test of whether touching or physical contact is sexual is objective, requiring consideration of all relevant facts and circumstances.
• The appellant's performance had an explicit sexual theme and tone, described by the host as "adult," "sexy," and "raunchy."
• The appellant touched breasts, simulated sexual acts, and engaged in intimate physical contact while nearly naked, supporting the conclusion that the conduct was sexual.
• The 2009 Act protects sexual autonomy, recognizing that sexual assault may be committed for reasons other than sexual gratification.
• The lack of consent and absence of any reasonable belief in consent rendered the appellant's conduct unlawful.
• The sheriff and SAC properly considered the context and motivation, concluding that entertainment as a motive does not negate the sexual nature of the conduct.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lord Advocate's Reference (No.2 of 1992) 1992 JC 43	Consideration of mens rea and actus reus in sexual offences	Referenced by appellant to argue that motivation is relevant to the sexual nature of conduct
Wightman v HM Advocate 2017 SCCR 437	Contextual analysis of sexual conduct and motivation	Appellant cited to support argument that motivation and performance context are relevant in determining sexual conduct
Procurator Fiscal, Edinburgh v Harper [2024] SAC (Crim) 10	Interpretation of sexual conduct and relevance of motivation	Appellant cited to argue that SAC erred in treating motivation as irrelevant

Court's Reasoning and Analysis

The court applied the objective test under section 60(2) of the Sexual Offences (Scotland) Act 2009, which requires considering all circumstances to determine whether touching or physical contact is sexual. The sheriff's findings that the appellant's conduct was sexual were upheld, taking into account the sexual theme and tone of the performance, the appellant's near nudity, and the deliberate nature of the contact with the complainers. The court emphasized that the appellant's motivation to entertain did not negate the sexual character of the conduct.

The court rejected the appellant's argument that motivation should be a determinative factor, clarifying that while motivation may be relevant to the weight of circumstances, it does not override the objective test. The court noted that sexual touching or contact is not criminal per se; it becomes an offence only when done without consent or reasonable belief in consent. Here, both complainers clearly withheld consent, and the appellant persisted in contact, thereby invading their sexual autonomy.

The court declined to consider the Article 10 compatibility issue raised for the first time on appeal, noting procedural rules requiring such issues to be raised earlier and that the right to freedom of expression does not protect non-consensual sexual conduct. The court further clarified that the SAC's decision did not introduce an absolute prohibition on touching without express consent during sexual performances but rather affirmed the primacy of consent.

Holding and Implications

The court REFUSED THE APPEAL, affirming the appellant's convictions for sexual assault under section 3 of the Sexual Offences (Scotland) Act 2009.

The direct effect of this decision is the upholding of the appellant’s conviction and sentence. The ruling confirms that physical contact during a sexualized performance can be objectively sexual, regardless of the performer's motivation, and that lack of consent is decisive in constituting a sexual offence. No new precedent was established beyond affirming existing law and the application of the objective test for sexual conduct under the 2009 Act.