Hansard

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.