Male stripper who mimed sexual acts with unwilling hen party guests loses appeal against sexual assault convictions

About this case:

• Citation:
  [2024] SAC (Crim) 8
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal S F Murphy KC

Stuart Kennedy was convicted after trial at Aberdeen Sheriff Court of two contraventions of section 3 of the Sexual Offences (Scotland) Act 2009 and given a community payback order with a supervision requirement for 12 months. On appeal, he argued that the trial sheriff had misdirected himself as to the meaning of “sexual” within the 2009 Act.

The appeal was heard by Sheriff Principal Sean Murphy, Appeal Sheriff Christopher Shead, and Appeal Sheriff Patrick Hughes. Adams, advocate, appeared for the appellant and Ewing KC for the Crown.

Context of performance

The circumstances of the offence arose from a hen party on 14 May 2022 organised within licensed premises in Aberdeen. The organiser hired the appellant, who operated a business which traded as “Alpha Male Strippers” to appear at the event. She told only a few guests that a male stripper had been engaged to attend and neither of the complainers was made aware.

At approximately 10:30pm the appellant arrived at the premises dressed as a firefighter and began his performance. After pretending to pat down the organiser for “flammable substances”, which she found amusing, he approached the complainer KM who moved behind a table to get away from him. Despite KM saying “No”, he placed his arms around her and repeatedly thrust his body against her back and buttocks for about five seconds. He then performed similar actions with the complainer NL, who had been sitting at the table that KM had moved behind.

The trial sheriff found that neither complainer had consented to what had occurred. However, the position of the defence was that the contact which had taken place was not “sexual” for the purposes of section 3 when read along with section 60 of the 2009 Act. The convictions were appealed on the basis that the sheriff had misdirected himself in law in relation to what constituted sexual touching.

It was accepted by the appellant that he had intentionally touched both complainers in the manner libelled, but he argued that it had been done in the context of a lawful performance of sexualised entertainment. Section 3 required that an accused sexually touch a complainer intentionally or recklessly for the crime to be committed. What he had done was touch them as part of a performance intended to be funny and entertaining, not for sexual gratification.

For the respondent it was submitted that it had been found in fact that neither complainer wanted to interact with the appellant, and this finding was not challenged. The test on whether the touching was sexual was an objective one, the evidence for which was a matter for the sheriff. The real issue was that the appellant knew the complainers were not consenting yet carried on regardless.

Preserve sexual autonomy

Delivering the opinion of the court, Sheriff Principal Murphy observed: “In relation to the activity carried out in the course of the appellant’s act, it is important to note that in relation to each complainer there was actual physical contact rather than any simulated touching or gesturing. In relation to KM he had approached the complainer from behind while scantily clad, placing his arms around her and had thrust his body repeatedly against her back and buttocks. In relation to NL he had sat on her lap, facing towards her, and had thrust his hips back and forth against her repeatedly to simulate a sexual act.”

He continued: “In each case the movements made were sexual in nature and the fact that he had done so only for a short period of time in each case is of no moment; nor is the consideration that he had made other gestures of a sexual nature towards other attendees, including the organiser, who were consenting. In these circumstances we consider that the sheriff was entitled to conclude that the touching was sexual by application of the test contained within section 60(2) of the 2009 Act.”

Assessing the defence that the action was intended as entertainment, the Sheriff Principal said: “The appellant’s position that this was a form of sexualised entertainment is not a defence to either charge in our view. Sexualised entertainment is sexual in nature by definition. The acts described by the complainers were carried out deliberately in each case and the motivation behind these deliberate acts is not a relevant consideration in relation to the question of dole or mens rea. If the constituent elements of a contravention of section 3 of the 2009 Act are made out, the accused’s motivation is irrelevant.”

He concluded: “We agree with the Crown’s submission that the provisions of the 2009 Act are designed to preserve the sexual autonomy of a complainer. The statute emphasises the centrality of consent as marking the boundary between criminal and non-criminal sexual conduct and it is the non-consensual nature of the appellant’s behaviour in a sexual context which renders his conduct criminal in this case, and, as we have indicated, we agree with the sheriff’s assessment of the circumstances in this case in relation to the sexual nature of the appellant’s behaviour.”

The appeal against conviction was therefore refused.