Hansard

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 on-going review of evidence give us an opportunity to define and redefine new rape and sexual assault offences, to balance the rights of victims and accused people, and to modernise our law in the area in a way that recognises individuals' sexual autonomy and the need to have legislation that gives people equal protection, irrespective of gender or sexual orientation. To do that properly requires time, so we are happy to support the amendment in Pauline McNeill's name.

Scotland has one of the worst conviction rates for rape, notwithstanding the fact that the offence may be too narrowly drawn, that there is widespread underreporting of sexual offences and that the task that the previous Executive set the commission was far from easy. Victims of rape or sexual assault can experience physical, emotional and psychological damage that can last for many years—indeed, it can last a lifetime. For many, the experience of rape is compounded by their experience in the justice system. However, we cannot forget that false accusations that those most despicable of crimes have been committed can also destroy lives.

The fact that more than 1,000 rapes were reported last year alone is shocking. Rape Crisis Scotland has told us that it saw 2,500 victims, but it has estimated that there were actually 7,200 attacks last year, which indicates that the reported total is the tip of a disturbing iceberg.

Rape stands alone in how we as a society denigrate and blame its victims. If a young man is stabbed in the street, we do not hear people say that he asked for it because he had had too much to drink or because he had drifted into a part of town that he did not know well. However, we have heard yet again in the past few days that around a quarter of people think that women are asking to be raped or assaulted if they drink too much, act flirtatiously or wear revealing clothing. Those attitudes need to be challenged. Justice will never be served properly if 25 per cent of a jury think that the victim is to blame before the proceedings go any further and the jury hears evidence and starts its deliberations.

We welcome the work that the Lord Advocate and the Crown Office have already done. We agree that there is a need for enhanced training and guidance for those who are involved throughout the justice system in dealing with rape and sexual offence cases. Also, we welcome the work that is being done by the Association of Chief Police Officers in Scotland to try to standardise the response to rape across the eight police forces. I pay tribute to the great work that our forces have done over the past few years in that area.

Improvements to and clarity in the rules of evidence and the legislation that covers rape and sexual offences must be at the heart of progress. The Lord Advocate has expressed concern that substantive law changes alone are not sufficient to tackle the conviction rate problem. Such comments may be controversial, but they were well made.

There is a need to review issues relating to corroboration, the Moorov rule, the manner in which victims are cross-examined about their character and sexual history, and the use of information about previous convictions. However, such a review must be set against the absolute need for a fair trial. I think that Pauline McNeill and Bill Aitken said that moving away from the requirement for corroboration is fraught with great difficulties, and that doing so might lead to a greater number of miscarriages of justice. We welcome the fact that the Scottish Law Commission is considering Scotland's laws of evidence in prosecuting all offences without losing sight of the peculiar difficulties that are inherent in prosecuting crimes such as rape that are unlikely to be carried out in public and witnessed by others.

There is a great deal to welcome in the draft bill. It is right to try to address the lack of clarity about the key issue of consent, and we welcome the commission's suggested definition of consent as "free agreement". We welcome the fact that an accused will have to justify his belief as a reasonable belief that a woman had consented, and the clear setting out of seven scenarios in which consent is clearly absent, including when victims are intoxicated, is useful. However, we should bear in mind the fact that such a list is clearly not exhaustive or devoid of problems of interpretation.

The commission's recommendations acknowledge that sexual contact without consent should be illegal even if consent for sexual activity has been given on other occasions. I whole-heartedly reject the view that there should be a difference in law between rape by a complete stranger, so-called date rape and sex without mutual consent with an existing partner. The belief that it is somehow less horrific or criminal to force sexual contact on a person against their will because of an existing or previous relationship with them is absurd.

I welcome the widening of the definition of rape so that it will include the oral and anal rape of a woman or a man. Bill Aitken gave one example of why widening the definition is right. Such clarification is an important part of addressing the discriminatory nature of existing laws and brings us into line with England. I agree with the Lord Advocate that the use of an implement against someone can be as horrific as rape. I hope that the Justice Committee will consider that matter in due course.

It is vital that the laws on rape and sexual offences are not only clear to the people of Scotland but relevant to our society. Much of the current legislation was passed when attitudes were very different. Modernisation of the existing legal framework is crucial to ensure not only that our laws do not support prejudice, but that they afford equal protection to men and women. The current laws often mean that there are much lesser penalties for sexual offences against men or boys, for example, although such offences are no less horrific for their victims. The existing law in relation to transsexuals is also unclear, and it uses outdated and offensive terminology in relation to homosexual activity between men. We welcome reform in those areas.

We also welcome the commission's approach in classifying sexual offences laws into three types of law: laws that cover sexual assaults, laws that protect children and other vulnerable people, and laws that protect public morals. We believe that the general direction of the draft bill, which includes the new offences of rape against children and rape against people with a mental disorder, is to be welcomed.

However, there is one particular area of concern. I expect that the Justice Committee will have to work through several issues to do with the proposals relating to older children, aged 13 to 15. I have concerns about what I have read so far. It is essential that we protect our children who are at a particularly vulnerable stage in their sexual and emotional development. We must balance protection and pragmatism, and we must deliver a system of rules that is clear to young people, parents and the police.

As I said previously, many people never come forward to report a rape or other sexual assault. One of the reasons for that is the widespread view that complainers are subjected to gross invasions of their privacy when they give evidence in court. A great deal of public concern remains about that. Despite the fact that the Parliament has already legislated on the issue, in the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002, recent research has shown that seven out of 10 complainers in rape trials are asked about their sexual history or their character. The legislation was meant to protect the complainer's dignity and privacy and—crucially—to ensure that relevant evidence was led.

We appreciate the need to ensure that an accused can mount the best possible defence and receive a fair trial. However, will the minister reassure us that that aspect of the law remains under review and give us his view as to why it continues to be an issue? Is it because the law is defective or because of the way in which the law is being interpreted in situ?

The Liberal Democrats look forward to seeing the consultation responses and the bill in due course. We will work constructively with the Scottish Government and others inside and outside the Parliament on this important and challenging area of criminal justice.