Chamber
Plenary, 06 Mar 2008
06 Mar 2008 · S3 · Plenary
Item of business
Rape and Sexual Offences
Today's debate has been very interesting and informative, and the wider debate, particularly on the law of rape, has also been very well informed. I also welcome the clarification that the Lord Advocate has given this morning of her position, given the reports in yesterday's press that many people have expressed concern about her intervention.
There is no doubt that reform in this area of law is long overdue and, given that academics and practitioners have been critical of the Scots law on rape for many years, we welcome the Scottish Law Commission's report and its conclusions.
The crime figures speak for themselves; indeed, it was partly the publication of the Scottish crime statistics in 2003 that led the previous Scottish Government to order the review. In contrast with recorded crime generally, which had fallen by 5 per cent over the same period, cases of rape and attempted rape had increased by 8 per cent. Moreover, only 10 per cent of reported rapes made it as far as court and, as a number of members have pointed out, the conviction rate in such cases has been extremely low. A series of court cases at about the same time that came in for criticism from legal commentators and the media was another factor in the drive for reform.
The Conservatives therefore agree that the law on sexual offences, particularly rape, needs to be examined to ensure that it is clear, gender neutral and—to quote the Law Society of Scotland—
"free of the various historical and other anomalies which have characterised this area of the law, for the benefit of both the public and those, such as lawyers, judges and juries, applying the law."
I want to pick up on a few issues, particularly consent, that have arisen out of the proposals and this debate. The fact is that redefining this crime, important though it is, will not be sufficient to tackle all the issues that have been raised about the law on, and prosecution of, sexual offences. We need to consider other factors, such as the procedures that are adopted at trial, the law of evidence and the pre-trial procedures. I would be interested to hear the Cabinet Secretary for Justice's views when he winds up.
The essential element of a sexual assault, such as rape, is lack of consent. Under the current law, the consent element of the offence can either be considered as part of the actus rea of rape or as the mens rea, since the Crown must prove that the accused knew that the complainer was not consenting or was reckless about whether or not she consented.
As the McKearney case in 2004 illustrated, the fact that, unfortunately, there has been no legal definition of consent in the context of rape has created a number of problems. The draft criminal code provides that any consent that has been given by a person is to be disregarded if, when consent was given, it was
"induced by force or fear or was otherwise not freely given."
In England, section 74 of the Sexual Offences Act 2003 defines consent such that
"a person consents if he agrees by choice, and has the freedom and capacity to make that choice."
Under the Law Commission's proposals, the concept of consent in rape cases would be clearly defined in statute in two parts. First, there would be a general description of the meaning of consent, or what is called "free agreement". Secondly, there would be a non-exhaustive list of situations, described by the Law Commission as "indicators", in which consent would not exist. I will not rehearse all the situations in which the complainer will not have had the freedom to choose whether to agree to intercourse, but they are broadly similar to those that operate in England and Wales. However, the commission says that they are not so much part of the law of evidence as illustrations of the key element of the offence itself. The list is to be welcomed.
However, I am not convinced that the introduction of the statutory definition of consent will solve all the concerns and problems with regard to rape cases. For example, questions whether the victim has given his or her "true" or "valid" consent will remain, because the line between true consent and mere submission is not always easy to draw.
It has been suggested that it might be preferable to avoid the use of the word "consent" altogether and to focus instead on whether the accused has had sexual intercourse with a person who did not have the freedom or capacity to choose, in the circumstances. Such wording would be similar to section 74 of the 2003 act. Commentators also believe that that would shift the focus of the trial from analysis of the complainer's behaviour to the accused's behaviour.
Discussion is also taking place on whether the legal burden of proof should be moved on to the accused. I am not sure whether that is the intention of the Law Commission's proposals and the issue will certainly require further thought. I am also not sure how such a proposal would fit with the European convention on human rights. Given the complexity of the problems, I welcome Pauline McNeill's amendment, which notes the need for Parliament to properly scrutinise the proposed bill.
I will conclude with a few remarks about the need for better education, about which the Lord Advocate, Bill Aitken, Margaret Smith and several other members talked. The figures from a study by Rape Crisis Scotland of 700 potential rape trial jurors are startling. Forty per cent of the potential jurors felt that women contribute to an attack if they put themselves in a risky situation, such as willingly going home with a man, and 20 per cent believe that women contribute to rape by wearing revealing clothes.
Given such attitudes, it is important that we support the police and anti-rape campaigners, who want to end the blame culture in which many members of the public believe that victims bring on attacks by being drunk, wearing revealing clothing or flirting. Everyone—men and women—must take on more responsibility for understanding what defines consent.
There is no doubt that reform in this area of law is long overdue and, given that academics and practitioners have been critical of the Scots law on rape for many years, we welcome the Scottish Law Commission's report and its conclusions.
The crime figures speak for themselves; indeed, it was partly the publication of the Scottish crime statistics in 2003 that led the previous Scottish Government to order the review. In contrast with recorded crime generally, which had fallen by 5 per cent over the same period, cases of rape and attempted rape had increased by 8 per cent. Moreover, only 10 per cent of reported rapes made it as far as court and, as a number of members have pointed out, the conviction rate in such cases has been extremely low. A series of court cases at about the same time that came in for criticism from legal commentators and the media was another factor in the drive for reform.
The Conservatives therefore agree that the law on sexual offences, particularly rape, needs to be examined to ensure that it is clear, gender neutral and—to quote the Law Society of Scotland—
"free of the various historical and other anomalies which have characterised this area of the law, for the benefit of both the public and those, such as lawyers, judges and juries, applying the law."
I want to pick up on a few issues, particularly consent, that have arisen out of the proposals and this debate. The fact is that redefining this crime, important though it is, will not be sufficient to tackle all the issues that have been raised about the law on, and prosecution of, sexual offences. We need to consider other factors, such as the procedures that are adopted at trial, the law of evidence and the pre-trial procedures. I would be interested to hear the Cabinet Secretary for Justice's views when he winds up.
The essential element of a sexual assault, such as rape, is lack of consent. Under the current law, the consent element of the offence can either be considered as part of the actus rea of rape or as the mens rea, since the Crown must prove that the accused knew that the complainer was not consenting or was reckless about whether or not she consented.
As the McKearney case in 2004 illustrated, the fact that, unfortunately, there has been no legal definition of consent in the context of rape has created a number of problems. The draft criminal code provides that any consent that has been given by a person is to be disregarded if, when consent was given, it was
"induced by force or fear or was otherwise not freely given."
In England, section 74 of the Sexual Offences Act 2003 defines consent such that
"a person consents if he agrees by choice, and has the freedom and capacity to make that choice."
Under the Law Commission's proposals, the concept of consent in rape cases would be clearly defined in statute in two parts. First, there would be a general description of the meaning of consent, or what is called "free agreement". Secondly, there would be a non-exhaustive list of situations, described by the Law Commission as "indicators", in which consent would not exist. I will not rehearse all the situations in which the complainer will not have had the freedom to choose whether to agree to intercourse, but they are broadly similar to those that operate in England and Wales. However, the commission says that they are not so much part of the law of evidence as illustrations of the key element of the offence itself. The list is to be welcomed.
However, I am not convinced that the introduction of the statutory definition of consent will solve all the concerns and problems with regard to rape cases. For example, questions whether the victim has given his or her "true" or "valid" consent will remain, because the line between true consent and mere submission is not always easy to draw.
It has been suggested that it might be preferable to avoid the use of the word "consent" altogether and to focus instead on whether the accused has had sexual intercourse with a person who did not have the freedom or capacity to choose, in the circumstances. Such wording would be similar to section 74 of the 2003 act. Commentators also believe that that would shift the focus of the trial from analysis of the complainer's behaviour to the accused's behaviour.
Discussion is also taking place on whether the legal burden of proof should be moved on to the accused. I am not sure whether that is the intention of the Law Commission's proposals and the issue will certainly require further thought. I am also not sure how such a proposal would fit with the European convention on human rights. Given the complexity of the problems, I welcome Pauline McNeill's amendment, which notes the need for Parliament to properly scrutinise the proposed bill.
I will conclude with a few remarks about the need for better education, about which the Lord Advocate, Bill Aitken, Margaret Smith and several other members talked. The figures from a study by Rape Crisis Scotland of 700 potential rape trial jurors are startling. Forty per cent of the potential jurors felt that women contribute to an attack if they put themselves in a risky situation, such as willingly going home with a man, and 20 per cent believe that women contribute to rape by wearing revealing clothes.
Given such attitudes, it is important that we support the police and anti-rape campaigners, who want to end the blame culture in which many members of the public believe that victims bring on attacks by being drunk, wearing revealing clothing or flirting. Everyone—men and women—must take on more responsibility for understanding what defines consent.
In the same item of business
The Presiding Officer (Alex Fergusson):
NPA
The next item of business is a debate on motion S3M-1490, in the name of Kenny MacAskill, on the Scottish Law Commission's report on rape and sexual offences.
The Lord Advocate (Elish Angiolini):
The Parliament will be aware that the First Minister announced last year that the Scottish Government will bring forward legislation in the light of the Scot...
Elaine Smith (Coatbridge and Chryston) (Lab):
Lab
Will the Lord Advocate take an intervention on that point?
The Lord Advocate:
I have a great deal to say. I will take the member's point later.The Scottish Law Commission's proposals seek to challenge existing norms by creating a great...
Elaine Smith:
Lab
I apologise—I have to attend a meeting and so I cannot contribute to the debate.Does the Lord Advocate agree that the rape of women by men is an act of viole...
The Lord Advocate:
The answer to the first question is clear. Sexual offending tends to be the exploitation of power. It is about the abuse of power in relation to the victims,...
The Presiding Officer:
NPA
I will consider that while you continue, if I may.
The Lord Advocate:
On Ms Smith's point about those who have been trafficked, in circumstances where someone has been abducted and there is clear evidence that there is an absen...
Margo MacDonald (Lothians) (Ind):
Ind
Further to that point—
The Lord Advocate:
I will take Ms MacDonald's point later.The commission's proposal is important and the Parliament must consider it with great care.Equally important is the co...
Pauline McNeill (Glasgow Kelvin) (Lab):
Lab
Labour welcomes the long-awaited report from the Scottish Law Commission on the reform of rape and sexual offences law. The report is good and we thank the c...
Bill Aitken (Glasgow) (Con):
Con
I welcome the debate, which is likely to continue for some months and, indeed, years, because we must get this particular legislation right. I also welcome t...
Margaret Smith (Edinburgh West) (LD):
LD
I welcome the Scottish Law Commission's final report on rape and other sexual offences and the consultation on its findings. The proposed legislation and the...
Shirley-Anne Somerville (Lothians) (SNP):
SNP
I welcome the final report from the Scottish Law Commission and the commitment from the Scottish Government to bring about much-needed reform of the law on r...
Marlyn Glen (North East Scotland) (Lab):
Lab
I am pleased to take part in this debate on the Scottish Law Commission's report on rape and sexual offences. The report and the first-ever systematic review...
Gil Paterson (West of Scotland) (SNP):
SNP
First, I declare an interest as a board member of Central Scotland Rape Crisis and Sexual Abuse Centre. I pay tribute to the Parliament's continuing work on ...
Bill Aitken:
Con
I am well aware of the member's close interest in such matters, but if he checked the figures he would learn that the conviction rate for the number of cases...
Gil Paterson:
SNP
Although I bow to the figure supplied by Bill Aitken, it does not alter what I will say. However, I will check the figures again.No right-thinking person, wh...
Margo MacDonald (Lothians) (Ind):
Ind
I join the debate because I want clarification on only one point that was reported in the newspapers during the week. The Lord Advocate will be pleased to kn...
Gil Paterson:
SNP
Margo MacDonald is perhaps suggesting that it would be difficult to say that men who pay for sex unknowingly rape a person. However, I hope that the member a...
Margo MacDonald:
Ind
I thank the member for that information, of which I am aware—I abhor that situation as much as the member does. However, the same treatment can be meted out ...
Helen Eadie (Dunfermline East) (Lab):
Lab
I support Pauline McNeill's amendment and all that she said. I welcome the consultation on the draft bill, which is published at the end of the Scottish Law ...
Nigel Don (North East Scotland) (SNP):
SNP
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 tr...
Mike Pringle (Edinburgh South) (LD):
LD
This is the third time in as many weeks that I have spoken in Parliament on a complex and emotive issue. I welcome the debate, which presents an opportunity ...
Margo MacDonald:
Ind
Has the member considered that the attitudes of juries might determine the matter about which he asks?
Mike Pringle:
LD
I do not doubt that that is part of the problem and I will return to that issue. However, I maintain that analysis should be done in that area.Progress has b...
John Lamont (Roxburgh and Berwickshire) (Con):
Con
Today's debate has been very interesting and informative, and the wider debate, particularly on the law of rape, has also been very well informed. I also wel...
Margo MacDonald:
Ind
I will just raise an intriguing point. If the way in which the style of dress can be provocative is not to contribute to being attacked—I agree that that is ...
John Lamont:
Con
My point is that society needs to be much more widely aware of the matter. People need to understand that simply wearing a certain piece of clothing does not...
Paul Martin (Glasgow Springburn) (Lab):
Lab
We have heard several powerful and thoughtful speeches on what—as several members have said—is a very complex area of law. When we analyse the Law Commission...