What Scots Law says about sex, power and money

By Natalie Michie
💬 What is consent?
In Scotland, consent is defined in law as “free agreement” under the Sexual Offences (Scotland) Act 2009. That means:
  • The person saying “yes” has to genuinely want to have sex.
  • They need to be awake, aware, and capable of making a decision.
  • They can’t be pressured, forced, deceived, or manipulated into it.
If someone is asleep, unconscious, drunk, afraid, or coerced, then it’s not legally valid consent.

⚠️ Coercion, threats and manipulation
Scottish law recognises that not every “yes” is equal. Under the 2009 Act, consent is automatically ruled out in situations where:
  • There’s violence or threats.
  • The person is incapable due to alcohol or drugs.
  • They’re asleep or unconscious.
  • They were deceived about the nature of the act or the person involved.
Courts can also consider wider social or emotional coercion. If someone says “yes” because they feel afraid, dependent, or powerless, the law may decide there was no valid consent.

🚫 Can someone else “consent” for you?
Absolutely not.
Only you can give legal consent to sex. A third party, whether a manager, agency, or partner, can’t give consent “on your behalf”. If sex happens based on third-party permission, and you didn’t agree freely, it can be classed as rape or sexual assault under section 1 of the 2009 Act.

💰What happens when money is involved?
​If someone agrees to sex because they need money to survive, is that really “free agreement”?
From a legal perspective, it's murky. Payment is not one of the explicit ways consent can be invalidated under the 2009 Act. So if someone agrees to sex expecting payment, and the buyer doesn’t pay, courts usually treat that as fraud or theft, not rape.

🗣️ What have women involved in selling sex said about consent?
Legal definitions say consent must be freely given, but for many women who sell sex, the reality is much more complicated.
​In these situations the ability to consent is often shaped by poverty, fear, pressure from third parties, or the immediate need to survive. What looks like agreement on the surface may be driven by desperation, not genuine choice.
“I put that mask on, I felt that I had to do it. You go into survival mode and you do what you have to do to survive.”
- Joanne, InsideOutside
“No matter how willingly you were giving your body to them and letting them use your body, you had to detach your mind. If you were to listen to your mind, you would be fighting them off, screaming “No” and that would become a dangerous situation.”
Wendy, InsideOutside
These testimonies show that consent in the sex trade is rarely clear-cut. Saying ‘no’ can feel impossible, especially when there’s pressure and violence from sex buyers, managers and others, or when safety and basic needs are at stake. Women’s lived experiences challenge the assumption that agreement under such conditions is truly free, clearly showing the gap between the law and real life.

⚖️ When violence happens: justice journeys in the sex trade
For women involved in selling sex, reporting sexual violence is often harder than it is for other survivors. Why?
1. Stigma & Credibility
Survivors who’ve exchanged sex for money often fear they won’t be believed. Some jurors (and even some police) wrongly assume that payment equals consent, when in fact this is not the case.
2. Fear of Being Charged
Women may worry they’ll be arrested for related offences like soliciting, immigration breaches, or brothel-keeping.
3. Lack of Evidence
Sex usually happens in private, one-on-one settings, often with no witnesses, CCTV, or immediate complaint, making prosecutions difficult.
4. National Referral Mechanism (NRM)
If trafficking is suspected, women are often routed into the NRM, not criminal courts. This can delay justice or shift the focus away from criminal prosecution entirely.

🤔 Why is the law in Scotland so conflicted
Scottish policy on prostitution is contradictory:
  • It’s legal to sell sex in most cases, but illegal to sell sex in public places or in a flat together. Yet, in parallel, the government recognises people who sell sex as victims of commercial sexual exploitation in their Equally Safe strategy.
  • Consent must be freely given, but women who sell sex are often acting out of economic need or under coercive circumstances.
  • The law requires a buyer to have a “reasonable belief” in consent, but there’s no requirement to check for exploitation.
These contradictions mean women involved in selling sex often fall through the cracks, neither fully protected by the law, nor fully empowered to challenge violence. This also sends a message to perpetrators, particularly men who buy sex, that there are no consequences for ignoring or violating women’s consent within the sex industry.

🧠 Final thoughts
Consent is at the heart of Scottish law, but especially where sex and money interact, things get confusing. For women in the sex trade, the law often fails to protect them or to acknowledge the pressure, control, or desperation that shapes their choices.
​
Legal definitions are important, but so are the real-life experiences of those caught in the gaps. Until the contradictions in policy, prosecution, and perception are resolved, survivors in the sex trade will continue to face barriers to justice that others don’t.

​✅Key laws to know