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Plenary, 06 Mar 2008

06 Mar 2008 · S3 · Plenary

Item of business

Rape and Sexual Offences

Don, Nigel SNP North East Scotland Watch on SPTV

Members will forgive me for saying again that as I am speaking late in the debate I will resist the temptation to repeat what others have said and instead try to address, or expand on, issues that have not been covered as they might have been.

I will make two points. The first, fundamental, point, which I do not think has been mentioned, is that we should be trying to create a legal framework that will minimise the number of violations—the number of acts that we will subsequently decide are offences. We need to be careful when we talk about maximising the number of reports of offences and maximising convictions, although such outcomes are important and will derive from the legal framework that we create. We must bear it in mind that we need a society—and a legal framework within which society operates—in which the number of violations of a sexual nature is minimised.

I know that this cannot happen, but in Utopia we would develop a legal system in which there were no violations and therefore no prosecutions or convictions. We could reduce offending by moving the goalposts; for example, we could quickly reduce the number of speeding offences on our roads, not by eliminating the speed limit but by increasing it to 250mph. Shifting the goalposts does not help, however. If we want to slow people down we must ensure that the speed limit that we set is enforced and that people understand why it exists.

The appropriate legal framework will minimise the number of violations and it will maximise the tendency for victims to report offences and minimise the procedural impediments to achieving justice. It might help our thinking on the matter if we kept in mind that hierarchy.

The Scottish Law Commission's report contains a radical proposal, which would in effect change the balance of proof, so that the law required the accused to demonstrate consent instead of requiring the defendant to prove the absence of consent. I accept that that is a slight overstatement of the case and I am not trying to be too legalistic, but in effect the commission suggests that consent needs to be demonstrated.

My second point is about the definition of consent. The proposed term, "free agreement", does not offer the right way forward. Members will realise that I did my training on the other side of Hadrian's wall. I can still pretty much recite section 1 of the Theft Act 1968, which says:

"A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it".

That definition of theft served pretty well until some folk nicked a painting from a church and subsequently managed to demonstrate to the court that they were only borrowing it. However, the definition would be useful if we had to teach our children the law of theft. Mercifully, we do not have to do so, because by and large people understand the law of theft, so we do not use the legal definition to teach children.

I mention that matter because society must find a way of teaching young people what is and is not sexually acceptable. I do not in any way suggest that such an approach will help in the dreadful cases of serial offenders who have no interest in being taught anything—we know about those people, so that is not my point. However, if we—as parents, lawyers and, in particular, as teachers—are to guide our youngsters and teenagers to an understanding of what is acceptable and, therefore, of what the law on sexual offences says, it would be useful to have a working definition of consent that had value in that context.

The alternative definition of consent that the commission proposed is:

"positive co-operation in act or attitude pursuant to an exercise of free will, involving persons acting freely and voluntarily and with knowledge of the nature of the act in question".

Such a definition might make sense to members and I am sure that it makes sense to lawyers, but I respectfully suggest that it has no street credibility. The definition would not be much use to teachers or parents and would need to be refined. The important point is that it would not be much use to juries, either.

We need a framework of law that minimises the tendency for violations, maximises the tendency to report offences and minimises the impediments to achieving justice in court. To achieve those outcomes the law must be clear, enforceable and—crucially—well understood by the general public.

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Plenary, 06 Mar 2008

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