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Annex E Current Criminal Legislative Protection
Although there is currently no specific criminal offence of 'forcing someone to marry' within Scotland, the law does provide protection from the crimes that might be committed when forcing someone into a marriage. Depending on the circumstances, perpetrators - usually parents or family members - could be prosecuted for a range of offences. These include:
Abduction. This is a common law crime. Abduction for any purpose, including marriage, is criminal. The abduction need not be accompanied by assault or fraud in order to be characterised as a criminal act. The essential element of the crime of abduction is the deprivation of the victim's personal freedom. There is no maximum penalty.
Assault. Any attack upon the person of another is assault. "Attack" has a very wide meaning and an assault may still be committed in the absence of significant violence or injury to the victim. The deliberate use of threatening gestures in order to place a person in a state of fear and alarm for his safety is thought to be sufficient to constitute the crime of assault. There is no maximum penalty.
Breach of the peace. This is a very flexible common law offence with no maximum penalty. A breach of the peace may be generally described as conduct causing or likely to cause alarm or annoyance and so lead to a disturbance of the person alarmed or annoyed. The type of conduct covered by this offence might include behaviour associated with stalking and harassment.
Breach of a Non-Harassment Order granted under the Protection from Harassment Act 1997 is a criminal offence. The maximum penalty available for conviction on indictment is imprisonment for five years and a fine. The police have the power of arrest where there is breach of a Non-Harassment Order. A power of arrest allows the police to arrest without warrant, a person who appears to be in breach of the terms of an order or interdict.
In the civil court it is open to someone to ask the court to grant an "interdict" to prohibit another person from taking a particular course of action. If someone is at risk of physical or mental abuse then it may be possible to obtain an interdict to protect against this. The Protection from Abuse (Scotland) Act 2001 allows a court to attach a power of arrest to any interdict granted for the purpose of protecting against abuse.
Child cruelty. Where the victim is under 16, the offence under section 12 of the Children and Young Persons (Scotland) Act 1937 may be committed by a person with parental responsibilities (in relation to the victim) who wilfully assaults or ill-treats them or exposes them to assault or ill-treatment so as to cause unnecessary suffering or injury to health. The maximum penalty available for conviction on indictment is imprisonment for five years and a fine.
Rape. Sexual intercourse by a man with a woman without the woman's consent constitutes the crime of rape. There is no maximum penalty.
Sexual offences. Depending on the circumstances of a particular case and the age of the victim, various offences under the Criminal Law (Consolidation) (Scotland) Act 1995 may be established. For example, it is an offence to detain any female against her will with the intent that she may engage in unlawful sexual intercourse with men or with a particular man.
Sexual activity with children. The Sexual Offences (Scotland) Bill, which was introduced in Parliament in June 2008, contains provisions which criminalise adults engaging in sexual activity with children under the age of 16. In contrast with existing legislation in this area, it is not a defence that the accused was married to the child in a country which allows marriage under the age of 16.
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