Scotland · Assault and consent
LJBD / CASE / 007 · Checked 1 August 2026
[2025] HCJAC 9
The proposition below is deliberately narrower than a general summary. Open the linked decision, read the paragraphs in context and check whether later or higher authority changes the point.
Issue before the court
Can consent provide a defence to conduct that would otherwise constitute common-law assault when the conduct occurs during sexual activity?
Precise proposition
Assault is an intentional physical attack, meaning physical interference with another person carried out deliberately rather than accidentally, negligently or recklessly. A separate intention to injure is not required and motive is irrelevant. Consent is not a defence once the conduct is legally an assault. Some consensual physical contact associated with sexual activity may not be an attack, but conduct with the potential to cause serious harm does not fall within that qualification.
This wording is this site's synthesis of the identified reasons. It is not presented as a quotation unless the judgment itself is opened and the exact words are checked.
Paragraph guide
Paragraph numbers are navigation aids. Read the surrounding facts, submissions and disposal before extracting a proposition.
The precise question, statutory background and unadopted Scottish Law Commission proposal.
The charge, special defence, alleged safe-word agreement and preliminary-hearing ruling.
Definition of assault, physical attack, modern meaning of evil intent and irrelevance of motive.
No intention to injure is required, consent is no defence to assault and contrary reasoning in earlier cases is corrected.
The Sexual Offences (Scotland) Act 2009 did not change the requirements of or defences to common-law assault.
Foreseeability, Convention rights, public health, proportionality and the potential for serious harm.
The appeal was refused.
Result
The appeal under section 74 of the Criminal Procedure (Scotland) Act 1995 was refused. The preliminary ruling remained in force for the later trial.
Selected later treatment
This is a recorded check, not a complete commercial citator. Each entry identifies the treatment actually found and the date of the overall note check.
[2026] HCJAC 11 · [11], [57], [68], [79]
The court applied the earlier ruling in the same proceedings, described the proposition as settled law and held that throat compression with potential to cause serious harm could not be consented to.
Open later authorityScope of check: Open-source treatment check completed on 1 August 2026. The located later treatment is the subsequent conviction and sentence appeal in the same proceedings.
Source register
Checked 1 August 2026. A broken link does not change the decision, but it does weaken this page as a public reading aid and should be reported for correction.