The internet is not a defence to assault

Tony Lenehan KC, Vice Dean of Faculty

I RECENTLY had the unnerving experience of addressing 200-plus S5 and S6 school pupils on the subjects of sexual consent and toxic masculinity. We have another school that wants to hear the same presentation this week.

For years now, High Court lawyers have seen case after case in which young men – some still at school – have emerged into the world of adult relationships with a repertoire of violent and demeaning intimate behaviour. Third sector resources have also identified the same problem.

It was through the efforts of Sandy Brindley that the Faculty of Advocates became involved in presenting to schools with the intention of improving the situation for the benefit of both male and female pupils.

It is striking how similar the behaviours we see are – regardless of where the young men involved hail from in Scotland. What is also striking is how common it is for young women to think that they have to put up with such things, perhaps believing they are a new “normal”.

The widespread nature of the behaviour suggests some unifying link, and common sense points to internet material as a likely root cause.

What was the High Court seeing? It was seeing strangling and neck compression, spitting, hair pulling and other acts of hostile appearance, all sailing under the dubious flag of consent.

Our Appeal Court examined this trend in 2025 in a case involving a man called Kirkup and set out in its judgment the simple fact that what is plainly an assault cannot be consented to. If you see someone in the street being spat upon, or held by the throat and choked, or having their hair pulled, you will recognise that as assault. The Appeal Court made clear that what is an assault in the street is an assault in the bedroom, and young men should not come to trial and ask a jury to excuse or tolerate such behaviour.

In my experience, juries are apt to take the view that if the end result looks a lot like rape, that’s because it was rape, and the apparent fact that people do things like that on the internet matters not at all.

No doubt there are online influencers who promote that sort of thing, and no doubt money can be made out of such content, but jury verdicts are the real-time measure of public sentiment. My point to the S5 and S6 pupils was that it will be a jury who decide the matter – not their locker room pals – and that a conviction for rape or a serious sexual offence is life-changing.

Modern policing listens to today’s complaint and uses people’s social media footprints to find every identifiable previous or subsequent partner to discover who may have suffered the same. When more than one person makes the same complaint, the conviction rate for rape rises towards 85 per cent, because juries have no compunction in identifying rape when good evidence is there to prove it.

Nowadays young people learn as much from their phones as they do from their parents. Maybe more. As awkward as it is speaking to late school-age people about this, it is better that young men know that some behaviours cannot legally be consented to and that an attraction to disrespectful conduct will mean they will meet me, or one of my colleagues, in court.

For about 85 per cent of them, it will then be too late​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​.

This piece first appeared in The Scotsman.