Hansard

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 commission's proposal to define consent as free agreement. Ms Smith's point is important in that regard. It might not sound a startling proposition to state that consent must be based on reasonable belief, but it is a significant change from the current position in law, which is that a defence of consent requires an honest belief by the accused regardless of how reasonable or otherwise that belief is.

I have stated on numerous occasions—most recently at a conference this week—that we operate within one of the most restrictive legal frameworks in the world. I was reported in the media yesterday as suggesting that our laws on rape are the worst in the world. Let me be clear. My view has been and remains that profound reforms to the law of rape in Scotland have already been achieved by our courts. A testament to that is the appeal court decision in 2001 that provided the current definition of rape—a definition that recognises a woman's absolute right to sexual autonomy.

In giving his opinion, the then Lord Justice General, Lord Cullen, set a clear vision of what the law should seek to protect. He said:

"It may be said with considerable force that it should seek to protect a woman against the invasion of her privacy by sexual intercourse, that is to say where that takes place without her consent. What happens with her consent on one occasion should not determine what is acceptable on another. In the present day, in which there is considerable sexual freedom, both in and out of marriage, should the law of rape not support the principle that whether there is to be sexual intercourse should depend on whether the woman consents, wherever and whenever she pleases?"

The power of the courts alone to effect comprehensive law reform is limited, and the pace of change is slow. The courts cannot bridge dramatic gaps in law, which are more properly for the legislature to address, and neither can incremental, case-by-case change effect wholesale law reform. However, I am in no doubt that the decisions of the courts in Scotland have set a clear vision of what the law of rape should seek to protect and have signalled the need for a new era of enlightenment in the Scottish legal system's response to rape.

At present, we have one of the most restricted definitions of rape in the western world. In my view, we cannot provide a modern response to rape when the law that defines it does not recognise as rape a multitude of sexually invasive and degrading acts that are perpetrated against women and men without their consent. The result is that comparisons of conviction rates throughout Europe appear to reflect poorly on conviction rates in Scotland, but they are fundamentally misleading. A wide range of sexual offences are defined as rape in other jurisdictions, but the definition in Scotland represents only a narrow and particular aspect of criminal conduct.

The commission's proposals bring into prospect laws in Scotland that recognise as rape the wider forms of sexual abuse that other jurisdictions have recognised as rape for decades. Widening the definition to include anal and oral penetration by the penis and recognising for the first time male rape, as opposed to the common-law offence of sodomy, will bring Scotland into line with England and Wales and many other jurisdictions in the world.

The Parliament will wish to consider whether the definition of rape should be broader still. In some jurisdictions, the definition is not restricted to penetration by the penis but includes penetration of the vagina and the anus using other objects. As a prosecutor, I have seen cases involving the most brutal and humiliating violation of women and men caused by the forced insertion of implements. Although such acts are not classed as rape in Scotland, they involve the most violent forms of sexual violation. In reforming the law on rape, the Parliament needs to consider to what extent it should encompass the most serious forms of sexual violation in all their guises.

However, we must be clear that no single factor prevails in Scotland to affect the rates of attrition and conviction. Many variables interact to determine our collective success in responding to rape, which is by its nature a difficult aspect of criminality to prove. It takes place in private, there are rarely any injuries, and in many circumstances both the complainer and the accused are intoxicated.

The report marks the start of important and appropriate reforms of the substantive law. However, the substantive law is only one part of the equation because, as we know, the principal feature of our legal system in Scotland, which sets us apart from every other jurisdiction in the western world, is the requirement for corroboration. Despite the storm that I might have created with my speech earlier this week, which will be in the Scottish Parliament information centre today, members will be pleased and relieved to hear that I am a firm fan of the concept of corroboration in Scots law. However, I consider that it is necessary to examine its impact and to understand and analyse the effect that it has in the area of rape and other sexual offences, and I am therefore pleased that the Cabinet Secretary for Justice has now asked the Scottish Law Commission to examine the law of evidence, including corroboration.

When applied to crimes that happen almost exclusively in private, the rule requiring corroboration in Scotland sets a significant hurdle for the prosecutor to overcome before even contemplating a prosecution. We know that almost one third of all reports received from the police are marked for no proceedings at the outset. The most common reason for not proceeding is insufficiency of evidence in law to prosecute.

I look forward to the results of the Scottish Law Commission's review of the Moorov doctrine, and acknowledge that the concession that it makes to the requirement for corroboration is crucial, but it is limited and does not yet recognise that, in many cases where a perpetrator preys on multiple complainers, he does so in a family setting and sometimes for several generations, spanning a period of 20 to 30 years. That aspect of corroboration and the relief against it should be considered by the commission and the community at large. It is not for me as a prosecutor to move the goalposts for the law of evidence. That would be entirely inappropriate, disproportionate and unfair.

Any move to remove the requirement for corroboration would be controversial and rightly so. The requirement might be regarded as a substantial challenge for the prosecutor, but it is equally regarded as an important safeguard for the accused, ensuring that where convictions are achieved in Scotland, they are secure and resilient to challenge. Any alteration would need to be considered with the greatest caution, but if we are serious about reforming the law in this area, the question is at the heart of the debate and we cannot avoid it. If we are to retain the requirement, we, as a community, must be satisfied that it continues to serve an important function in our legal system, and Parliament and the community need to acknowledge and accept that it will inevitably continue to limit the number of cases that can be considered for prosecution and lead to a conviction. That debate is for the future, once we have the benefit of the commission's proposals for reform of the law of evidence.

Although it is essential that the substantive law and the laws of evidence provide us with a sound framework, we must never lose sight of the importance of the work that we in the justice system and beyond must undertake to improve our collective response to rape.

Within the Crown Office and Procurator Fiscal Service, we are working hard to implement the 50 recommendations for change to the way in which we respond to sexual crime that I announced to the Parliament in 2006. That work will ensure that by summer 2009, only prosecutors who have been trained and approved according to the highest standards of competence will undertake the investigation of sexual crimes. Dorothy Bain QC, one of Scotland's most senior and skilled prosecutors, has agreed to work closely with police and prosecution staff as part of the procurator fiscal's Lothian and Borders area sexual offences team, with links to the Amethyst Centre. As the specialist prosecutor for the Lothian and Borders team, she will ensure that investigations in serious sexual offence cases are, from their earliest stages, informed by the experience of those who prosecute in the High Court. She will also make recommendations to the Solicitor General and me on how to build on the recommendations of the review by identifying what further role Crown counsel might play in the model of specialism that we are developing.

The Parliament is now charged with scrutinising proposals to reform the substantive law. We have an unprecedented opportunity to determine what the law of rape and sexual offences should seek to protect. As the Parliament moves to scrutinise the proposals, it is critical that the experience and expertise of all those who deal with these matters, including the defence, the judiciary, and those representing victims of sexual crime, are involved and inform the decisions that are taken.

If we are to effect real and profound change in the law, we must ensure that what we do now is right. If we move to redefine the law of sexual offences in its entirety, we must be certain beyond reasonable doubt that we are making change for the better. The approach must be considered, rational and modern.

I warmly welcome the opportunity to debate how we can best improve the Scottish legal system's response to rape and other sexual offences. I hope that many debates will take place as a result of these proposals and that they will be wide-ranging, balanced and outward looking and, most of all, will remain focused on improving our response as a society to those who experience rape and other sexual crimes, while always maintaining a fair system of prosecution for those accused of sexual crime.

I move,

That the Parliament welcomes the publication of the Scottish Law Commission's final report on the law on rape and other sexual offences and supports the Scottish Government's announcement that it will bring forward legislation to reform the law on rape and sexual offences in light of the consultation on the commission's findings and proposed draft bill to ensure that Scotland has a modern and robust framework of laws in this area.