Chamber
Plenary, 21 Nov 2001
21 Nov 2001 · S1 · Plenary
Item of business
Sexual Offences (Procedure and Evidence) (Scotland) Bill: Stage 1
I welcome the bill and I commend the Justice 2 Committee for its report. The bill marks real progress in reforming the impact of the legal process on victims of rape and sexual assault. I realise that it is not only women who experience sexual crimes, although they are in the majority. As has been said, sexual crimes often go unreported because many women perceive the ordeal of the trial to be almost as traumatic as the ordeal of the rape itself. The woman fears that she may be cross-examined by her attacker in person and that her sexual history—and indeed her non-sexual history—may be used to discredit her. Given that the number of convictions for rape is low, the woman may go through the ordeal to no avail.
The bill was not welcomed by the legal establishment. It was pointed out that the accused rarely opts for personal cross-examination and that to deny him the right to do so might infringe his human rights, so there was no reason for us to bother with the bill. We bothered because we think that victims have rights too, including the right not to be subjected to inhuman or degrading treatment in court. I believe that the legal establishment has been complacent.
The bill has found a formula that protects the rights of the accused and of the complainer and that does not prevent a fair trial. There may still be practicalities to work out, for example to protect solicitors, but the principle of a court-appointed solicitor seems to be generally accepted and I welcome that.
When personal cross-examination happens—no matter how rarely—it is widely reported in the media. That gives the impression that it is commonplace and so deters women from reporting rape. That is crucial. The issue is the deterrent effect of high-profile incidents, even if they happen only occasionally.
The same arguments apply to the proposals further to restrict the admissibility of evidence on past sexual behaviour. It was argued that the present rules should be sufficient to prevent inappropriate questioning. Well, it seems that they are not. Sometimes the rules are interpreted loosely and they are not always applied. There may have been only two objections in 25 trials, but that is two too many. Stricter rules are necessary, coupled with the education and training for the judiciary that the Law Society of Scotland recommended, if we are to treat victims with dignity and respect. I do not see that that is incompatible with a fair trial.
The bill fits well with the developing policy on vulnerable witnesses. Rape and sexual assault are particularly distressing crimes because they are intimate, but society must realise that such crimes, as Roseanna Cunningham said, are about the abuse of power. That power can be exercised by the accused in the courtroom unless that is prevented by stricter court rules.
The bill will help more women to report rape but, unfortunately for society, there will still be many women who do not do so for other reasons, for example the reaction in their communities. During the summer, I spent time visiting procurators fiscal in small rural courts in the Highlands and Islands. One fiscal remarked on the high level of unreported sexual violence in his district. He said that the young men think it is their right, and the girls put up with it. Society accepts that behaviour. Juries will seldom convict for so-called date rape. It is difficult to prove when there is no extreme violence.
There is a culture in our country of abuse and domination of young women, which we are not addressing because we do not have the judicial tools to correct it. Rape was defined centuries ago, when society was much different. Is the definition, which includes a presumption of physical force, still relevant? We await a decision on that. We may have to consider defining levels of seriousness of rape for women to report rape by acquaintances and for juries to convict. I say that with great hesitation, because it is a huge and tricky issue, but it must be debated.
I whole-heartedly welcome the bill, but there is still some way to go before we can truly feel that we have a society in which sexual violence is not condoned and where a woman can say no and a man will take no for an answer.
The bill was not welcomed by the legal establishment. It was pointed out that the accused rarely opts for personal cross-examination and that to deny him the right to do so might infringe his human rights, so there was no reason for us to bother with the bill. We bothered because we think that victims have rights too, including the right not to be subjected to inhuman or degrading treatment in court. I believe that the legal establishment has been complacent.
The bill has found a formula that protects the rights of the accused and of the complainer and that does not prevent a fair trial. There may still be practicalities to work out, for example to protect solicitors, but the principle of a court-appointed solicitor seems to be generally accepted and I welcome that.
When personal cross-examination happens—no matter how rarely—it is widely reported in the media. That gives the impression that it is commonplace and so deters women from reporting rape. That is crucial. The issue is the deterrent effect of high-profile incidents, even if they happen only occasionally.
The same arguments apply to the proposals further to restrict the admissibility of evidence on past sexual behaviour. It was argued that the present rules should be sufficient to prevent inappropriate questioning. Well, it seems that they are not. Sometimes the rules are interpreted loosely and they are not always applied. There may have been only two objections in 25 trials, but that is two too many. Stricter rules are necessary, coupled with the education and training for the judiciary that the Law Society of Scotland recommended, if we are to treat victims with dignity and respect. I do not see that that is incompatible with a fair trial.
The bill fits well with the developing policy on vulnerable witnesses. Rape and sexual assault are particularly distressing crimes because they are intimate, but society must realise that such crimes, as Roseanna Cunningham said, are about the abuse of power. That power can be exercised by the accused in the courtroom unless that is prevented by stricter court rules.
The bill will help more women to report rape but, unfortunately for society, there will still be many women who do not do so for other reasons, for example the reaction in their communities. During the summer, I spent time visiting procurators fiscal in small rural courts in the Highlands and Islands. One fiscal remarked on the high level of unreported sexual violence in his district. He said that the young men think it is their right, and the girls put up with it. Society accepts that behaviour. Juries will seldom convict for so-called date rape. It is difficult to prove when there is no extreme violence.
There is a culture in our country of abuse and domination of young women, which we are not addressing because we do not have the judicial tools to correct it. Rape was defined centuries ago, when society was much different. Is the definition, which includes a presumption of physical force, still relevant? We await a decision on that. We may have to consider defining levels of seriousness of rape for women to report rape by acquaintances and for juries to convict. I say that with great hesitation, because it is a huge and tricky issue, but it must be debated.
I whole-heartedly welcome the bill, but there is still some way to go before we can truly feel that we have a society in which sexual violence is not condoned and where a woman can say no and a man will take no for an answer.
In the same item of business
The Presiding Officer (Sir David Steel):
NPA
The main business today is a stage 1 debate on motion S1M-2459, in the name of Jim Wallace, on the general principles of the Sexual Offences (Procedure and E...
The Deputy Minister for Justice (Iain Gray):
Lab
This is a short but important bill, whereby the Executive fulfils a commitment to improve significantly the way victims of sexual crimes are treated in our c...
Phil Gallie (South of Scotland) (Con):
Con
Under bail law, someone who has been charged with rape and who decides to conduct their own defence would have limited access to the complainer. Would that c...
Iain Gray:
Lab
Mr Gallie raises an interesting question, but it is perhaps not for this debate, because the bill would set such a situation right by changing the legislativ...
The Presiding Officer:
NPA
Before I call the next speaker, I see at least five members in the chamber who have indicated that they would like to speak, but who have not pressed their r...
Roseanna Cunningham (Perth) (SNP):
SNP
The Scottish National Party supports and welcomes the general intent of the bill, which is—of course—aimed at protecting the complainer and other witnesses f...
Lord James Douglas-Hamilton (Lothians) (Con):
Con
Does Roseanna Cunningham accept that it is extremely unlikely that a Scottish judge would ever have allowed such an outrage to occur?
Roseanna Cunningham:
SNP
It is difficult for me to answer that question. I understand what Lord James Douglas-Hamilton is trying to say, but such cross-examination does occur in Scot...
Scott Barrie (Dunfermline West) (Lab):
Lab
Will the member give way?
Roseanna Cunningham:
SNP
I am sorry, but I am in the final minute of my speech.The proposed changes will affect not just rape cases; they will cover a wide variety of offences, which...
Bill Aitken (Glasgow) (Con):
Con
In due course, the Conservatives might take issue with certain aspects of the bill, but we would be the first to concede that there are real difficulties in ...
Iain Gray:
Lab
Mr Aitken makes a fair point about the research being difficult. Will he accept that one construction of what he has related is that when we ask complainers ...
Bill Aitken:
Con
I am happy to concede that there is a difficulty, which is the polarisation to which I referred earlier in my speech. Everybody is working with the same diff...
George Lyon (Argyll and Bute) (LD):
LD
Before I begin, I welcome Baroness Michie of Gallanach to the VIP gallery. Applause.The Justice 2 Committee report states:"It is a general principle in Scots...
The Deputy Presiding Officer (Patricia Ferguson):
Lab
We now move to open debate. Several members want to speak, so I ask those who do to keep their contributions to four minutes.
Pauline McNeill (Glasgow Kelvin) (Lab):
Lab
I thank committee members and the committee clerks who worked hard on the report. I also thank the Parliamentary Bureau, which allowed extra time for the com...
Mrs Margaret Ewing (Moray) (SNP):
SNP
I join George Lyon in welcoming Baroness Michie of Gallanach to the VIP gallery. Although Ray Michie and I have been in different political parties all our l...
Mrs Mary Mulligan (Linlithgow) (Lab):
Lab
The bill appears to have two aims. The direct aim is to change the way in which the legal system works in relation to sexual offences. The indirect aim is to...
Stewart Stevenson (Banff and Buchan) (SNP):
SNP
I start by thanking the convener of the Justice 2 Committee for her welcome when I joined the committee. I was not just joining her committee; I was joining ...
Members:
Sook.
Christine Grahame (South of Scotland) (SNP):
SNP
Sit down now.
Stewart Stevenson:
SNP
—so all my faults are Pauline McNeill's as well.I want to talk about the climate of fear among potential complainers—those who have been victims of rape. Bil...
George Lyon:
LD
May I clarify what I said? I did not state that an amicus curiae was an alternative. I suggested that, before introducing any more measures, the minister mig...
Stewart Stevenson:
SNP
I thank George Lyon for that clarification, which I am prepared to accept. I was merely making the point that he would leave the option open, whereas I would...
Mrs Lyndsay McIntosh (Central Scotland) (Con):
Con
Members from across the political divide will recollect my contributions on matters of domestic abuse and abuse of women in general—in particular, rape or cl...
Johann Lamont (Glasgow Pollok) (Lab):
Lab
Will the member give way?
Mrs McIntosh:
Con
I have only a couple of minutes left and I am sure that Johann Lamont will make a speech of her own.The cynics among us may say that we need to have more fai...
Maureen Macmillan (Highlands and Islands) (Lab):
Lab
I welcome the bill and I commend the Justice 2 Committee for its report. The bill marks real progress in reforming the impact of the legal process on victims...
Mr Gil Paterson (Central Scotland) (SNP):
SNP
I have just returned from a seminar on counting the cost of violence against women, which had delegates from all over the world, so I especially welcome this...
Johann Lamont (Glasgow Pollok) (Lab):
Lab
I welcome the opportunity to speak on the stage 1 report on the Sexual Offences (Procedure and Evidence) (Scotland) Bill. It is a matter of personal satisfac...