Chamber
Plenary, 06 Mar 2008
06 Mar 2008 · S3 · Plenary
Item of business
Rape and Sexual Offences
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, whether a judge, policeman, lawyer or politician, should find acceptable or be relaxed about the number of cases and convictions. If the figures related to car thefts, house break-ins or some other crime, there would be a major inquiry and the public would want something to be done about it quickly, so why have we tolerated the rape law situation and why are the public not up in arms?
There are many complex reasons; I will touch on just some of them. Our system of law is out of balance. A rape victim—or a person alleged to have been raped—is almost treated like a person who is guilty of perjury, until the accused has been found to have committed rape.
Smart lawyers—by which I mean clever lawyers—whose job it is to get their client off, are able and willing to bring before the court information about an accuser with the sole purpose of painting a picture that colours the jury's view as to why they are not to be believed. Worse still, the person's sexual habits, dress or views nullify any concept of justice for them. In other words, such lawyers tell the jury, "Look at what she was wearing. She had a good bevvy. She flirted with him and she had sex with more than one man, so she asked for it." Let us consider those points.
"Look at what she was wearing." I challenge members to look at what their female family members and friends, as well as young women throughout Scotland, wear. The hem-lines of their skirts are up to their armpits and their midriffs are bare. That is the fashion. It is how young people dress, whether we like it or not. It is how 75 per cent of our young women dress when they have a night out. Does that mean that 75 per cent of young females, including our family members, are asking to be raped?
"She had a good bevvy." Unfortunately, too many young people, both male and female, drink to get drunk rather than to have a social experience. Whether that is because of peer pressure or because it is cool to get blitzed, I do not know, but it puts them at greater risk from the predators, animals and cowards who seek out the weakest to attack. I fully acknowledge that fact and would like to see the end of that drinking trend. Nonetheless, the courts should offer no refuge or assistance to those who prey on victims. If a woman is paralytic and cannot or does not say no, how can it be judged that she said yes?
It might be said that she had a reputation. She might have had sex with other men, but so what? What does that prove? It proves that she said yes willingly to them; it does not mean that another man is entitled to rape her. It could also be that she said yes to someone with whom she was in a relationship, but the relationship ended. Does that mean that after she said yes once, the answer was yes for ever? Of course not.
If I could give advice to all those concerned, whether the police, the courts or the Parliament, it would be this: our rates for getting rape cases to court and obtaining convictions are, by any definition, appalling in the extreme, and we need to do something about it. We do not need to reinvent the wheel. Models exist that offer total protection and justice for the accused and give them the ability to defend themselves properly, while at the same time offering those who claim to have been raped the sure knowledge that their case will be heard and tried, and that they will be treated fairly and protected from the divulging of private and irrelevant information. Being able to deploy information to play deliberately to the jury's prejudices cannot be right, and it must be changed.
When rape cases afford a proper balance in court between the accuser and the accused, the prosecution and conviction rates in Scotland will rise, and Scotland's justice system will be the winner.
No right-thinking person, whether a judge, policeman, lawyer or politician, should find acceptable or be relaxed about the number of cases and convictions. If the figures related to car thefts, house break-ins or some other crime, there would be a major inquiry and the public would want something to be done about it quickly, so why have we tolerated the rape law situation and why are the public not up in arms?
There are many complex reasons; I will touch on just some of them. Our system of law is out of balance. A rape victim—or a person alleged to have been raped—is almost treated like a person who is guilty of perjury, until the accused has been found to have committed rape.
Smart lawyers—by which I mean clever lawyers—whose job it is to get their client off, are able and willing to bring before the court information about an accuser with the sole purpose of painting a picture that colours the jury's view as to why they are not to be believed. Worse still, the person's sexual habits, dress or views nullify any concept of justice for them. In other words, such lawyers tell the jury, "Look at what she was wearing. She had a good bevvy. She flirted with him and she had sex with more than one man, so she asked for it." Let us consider those points.
"Look at what she was wearing." I challenge members to look at what their female family members and friends, as well as young women throughout Scotland, wear. The hem-lines of their skirts are up to their armpits and their midriffs are bare. That is the fashion. It is how young people dress, whether we like it or not. It is how 75 per cent of our young women dress when they have a night out. Does that mean that 75 per cent of young females, including our family members, are asking to be raped?
"She had a good bevvy." Unfortunately, too many young people, both male and female, drink to get drunk rather than to have a social experience. Whether that is because of peer pressure or because it is cool to get blitzed, I do not know, but it puts them at greater risk from the predators, animals and cowards who seek out the weakest to attack. I fully acknowledge that fact and would like to see the end of that drinking trend. Nonetheless, the courts should offer no refuge or assistance to those who prey on victims. If a woman is paralytic and cannot or does not say no, how can it be judged that she said yes?
It might be said that she had a reputation. She might have had sex with other men, but so what? What does that prove? It proves that she said yes willingly to them; it does not mean that another man is entitled to rape her. It could also be that she said yes to someone with whom she was in a relationship, but the relationship ended. Does that mean that after she said yes once, the answer was yes for ever? Of course not.
If I could give advice to all those concerned, whether the police, the courts or the Parliament, it would be this: our rates for getting rape cases to court and obtaining convictions are, by any definition, appalling in the extreme, and we need to do something about it. We do not need to reinvent the wheel. Models exist that offer total protection and justice for the accused and give them the ability to defend themselves properly, while at the same time offering those who claim to have been raped the sure knowledge that their case will be heard and tried, and that they will be treated fairly and protected from the divulging of private and irrelevant information. Being able to deploy information to play deliberately to the jury's prejudices cannot be right, and it must be changed.
When rape cases afford a proper balance in court between the accuser and the accused, the prosecution and conviction rates in Scotland will rise, and Scotland's justice system will be the winner.
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...