the face of it, legislation in Scotland, and the rest of the UK, provides
strong protection for children under 13 from rape.
Under the Sexual Offences (Scotland) Act 2009, children under 13 are deemed incapable of consenting to sex. There is no defence of mistake in age, making it what is called a strict liability crime. To prove rape of a young child (defined as under 13), the Crown need to prove that penile penetration took place, and that the penetration was by the accused. Unlike other rape cases where the complainer is over the age of 13, they do not need to prove lack of consent of the complainer or lack of reasonable belief in consent on the part of the accused. This is because children under the age of 13 are considered incapable of meaningfully consenting to a sexual relationship.