I intimate to our witnesses and to others present that, today being 11 November, business in the Parliament—and indeed in all public buildings and courts in Scotland—will be suspended briefly at 11 o'clock for the appropriate commemoration. I will attempt to bring proceedings to a halt at a suitable moment just prior to 11 o'clock. I apologise for the necessary interruption but I am sure that everyone appreciates it.
Good morning, colleagues. As you know, the Sexual Offences (Scotland) Bill seeks to move the law in the direction of making rape gender neutral. Could each witness comment on that policy from the perspective of equalities and human rights?
We have been pursuing that end for many years. In England, the law of rape was extended in 1994 to include male rape. If a man is raped, it is important that the right language—the language of rape—is used in prosecuting that. We are therefore very pleased that anal and oral rape have been added to the definition of rape.
We support what Tim Hopkins has said. The domestic abuse project believes that it is great that men will be able to name the experience of rape as such. We are really pleased with the changes to the first offence of rape.
I agree with my colleagues. This is a long-overdue rewriting of the law to ensure that offensive, outmoded terminology is removed and that the offence of rape can apply equally to male and female victims. We welcome that.
How do the witnesses respond to the comment that rape is still overwhelmingly a crime committed by men against women, and that the policy of gender neutrality might obscure that fact?
I disagree that there is any—
I am playing devil's advocate.
Of course. It is a very good point. The Equality and Human Rights Commission disagrees that there is any contradiction between striving for gender neutrality in statute while recognising that the policy environment in which the new law will be introduced is one in which we are dealing with rape as a gendered crime. There is no contradiction as far as the commission can see.
Does Ms Logan have a comment on that view, which is sometimes expressed by some people?
The project definitely accepts that we are talking about disproportionate gender-based violence, but as it stands, the bill does not diminish that. It is about the policy context within which we work. Lesbian, gay, bisexual and transgender people who experience domestic abuse and rape should also be considered in terms of gender-based violence; that sits quite comfortably alongside what is proposed in the bill.
I understand that.
The number of cases in which the new crime of rape as set out in the bill would be committed by someone who is legally a woman would be very small. The Scottish Law Commission was right to identify penetration with the penis as a specifically bad crime. The penis is a sexual organ, it is in the nature of rape, and it is what people understand rape to be. We are therefore in favour of rape being a separate crime, which means that it can be committed only by someone who has a penis; the majority of those who commit rape are men. The crime is gender based and the law should recognise that.
All three organisations refer to rape of a woman by a woman. Is that a significantly prevalent issue?
Our written submission refers to Stonewall Scotland's recent research, in which approximately one in 15 lesbian or bisexual women disclosed that they have been raped by a partner. Other research that was done in 2006 into same-sex domestic abuse showed that approximately one third of respondents disclosed that they had experienced sexual violence by a partner. We are therefore talking about significant numbers and a massive issue.
Our position is the same as that of my colleagues. There should be a separate offence. The English offence is called "sexual assault by penetration", but the term "rape with an object" would be better because it captures the victim's rape-like experience while distinguishing the crime from the central rape offence of penile penetration. The offence should cover vaginal and anal penetration, but not oral penetration; that is what the English law does. The Scottish Law Commission originally suggested that in its 2006 discussion paper.
I agree with what has been said. The EHRC pointed to stakeholder concerns that there is a gap in prevention, protection and understanding in the area of same-sex female rape, both in the criminal justice arena and in the wider interventions for support after such an event. We need to be alive to that.
I turn to Cathie Craigie, although I think that the witnesses have anticipated her questions to some extent.
The witnesses are very good and are covering everything while taking account of the convener's introductory remarks.
The principal difference between what the LGCM suggests and what we suggest is just the name of the offence. It suggests the creation of an offence that is similar to the English offence of assault by penetration with an object or another part of the body. We believe it is important that the offence is called something like rape with an object; as Mhairi Logan said, such an assault is experienced by the victims as a form of rape, so it is important that the word "rape" is included.
Would you confine the definition of rape to vaginal and anal penetration?
Yes. Other witnesses have discussed the matter with you already and the Scottish Law Commission discussed it in its final report. There is an issue about, for example, a forced kiss during which there is penetration with the tongue. If the crime of rape with an object was defined to include oral penetration, such a forced kiss would become an example of rape with an object. It is not clear that it makes sense for the word "rape" to be applied to such things, whereas it is much clearer in the case of coerced and forced vaginal or anal penetration. That is why we believe that it is not appropriate to include oral penetration in the offence. Oral penetration would be covered by the sexual assault offence.
The word "rape" depicts the seriousness of the offence. I agree with Tim Hopkins that the definition of rape with an object should be confined to vaginal and anal penetration.
Would you include penetration by other parts of the body?
Yes, definitely. People experience violent rape with the hand, fingers or other parts of the body. It is important to include that.
We turn to questions on consent and reasonable belief, on which Robert Brown will lead.
I want to ask about two aspects. The first relates to the question of the victim being asleep or unconscious. The same point has been made in different ways by many organisations, but the Equality and Human Rights Commission, in particular, states:
The committee is right to try to bottom out that area, because it is not clear cut. We must ensure that we do not sweep up in the law people who behave inappropriately but not in a way that should leave them open to a serious criminal charge. As we state in our submission, we need to get a handle on the situation that is envisaged. The dangers in going down the route of prior consent are manifold. By its nature, consent, or free agreement as it is defined in the bill, implies the ability freely to withhold consent at any time, but that ability is removed if one of the sexual partners is unconscious.
Your submission states that section 10(2)(b) of the bill, which deals with the matter, should be removed. Is that what it boils down to?
Yes. Unless a compelling reason is given for recrafting the provision in such a way that it clearly protects a group of people who would otherwise be caught up in criminal law inappropriately, the provision should be removed from the bill. The Equality and Human Rights Commission is not aware that any compelling reason has been provided thus far.
Do you have a clear view about how consent should be indicated in the perhaps more ambiguous circumstances that we are discussing? We should bear it in mind that the matter has given the courts difficulty for 150 years, when cases of clandestine sexual assault were first decided by the High Court.
I do not pretend that this is an easy area. Doubtless, we will move on to talk about the bill's provisions on due regard being given to the defendant's indications of what steps were taken to establish consent, which perhaps ties in with the issue that we are discussing. We need to get to the bottom of what consent looks like, be it verbal or otherwise.
I think that we all accept those points, but the difficulty is that we are talking about criminal statute. In court, ultimately, there will have to be proof beyond reasonable doubt of all the issues, including that there was no consent. That is what gives us problems, is it not? Does anyone else have any different comments on that?
The results for LGBT people on the issue are no different, so it is not an LGBT equality issue, but I will comment briefly. What is required is not the removal of section 10(2)(b) altogether but the removal of the second half of it, which states that prior consent is possible. We would still want a rule that stated that there is no consent if the person is unconscious.
Prior consent does not sit sensibly alongside free agreement. They contradict each other, and a question arises about how long ago the person gave their consent. I worry that the argument would be used in the context of domestic abuse and rape cases. We support the point that Rape Crisis Scotland and Scottish Women's Aid made on the matter.
The other issue is reasonable belief, which section 12 covers. It is arguable that there is an element of academicness about that provision, too.
Before I answer those questions, it is worth putting on the record that I endorse Tim Hopkins's comments. We are not looking for the excision of the whole of section 10(2)(b); rather, we are talking about excising the offending second part of it.
Are there any other thoughts or suggestions?
I do not have anything to add to what has been said.
There is concern about the provision and practical laws of evidence. Would there be any advantage in widening the provision and using the phraseology in the English Sexual Offences Act 2003? That act states that the reasonableness issue is to be determined
The answer to your question is, "Possibly." When the Equality and Human Rights Commission met members of the bill team, we acknowledged in our discussion that section 12 strays into wider questions to do with the law of evidence in Scotland. Perhaps that question needs to be considered in the round with wider questions to do with the law of evidence. That is one possibility. Perhaps we could get back to you in writing on the matter once we have further discussed it internally.
That would be helpful.
It would be useful if you could reply to us in writing, Mr Page.
I am content with the responses that have been given.
Right. Angela Constance will therefore lead on questions about children and young people.
As the witnesses know, the bill will continue to criminalise many forms of consensual sexual behaviour between older children. Is that consistent with the human rights of older children? Is it, for example, consistent with their privacy rights under article 8(1) of the European convention on human rights? I direct that question at Mr Page first.
The committee wrestled with that issue in its first two evidence sessions, and I do not know whether the Equality and Human Rights Commission has a great deal to add to the useful responses that you received then. We endorse the pragmatic approach that a number of witnesses have advocated. Provisions exist to deal with the very rare circumstances in which a criminal justice response would be the first and most appropriate response, but it is hard to envisage a situation in which such a response would come before a sexual health and child welfare response. In addition, the Lord Advocate has discretion to intervene when that is necessary. We would expect criminal justice interventions as opposed to other responses to be rare, as they are already.
Are you saying that, provided that there is discretion and people are not automatically referred to the children's hearings system, for example, no conflict exists with the right of older children to privacy? Have I understood you correctly?
I think that that is right. If we are pragmatic, the law will stay in place. We think that the Lord Advocate would use her powers of discretion sparingly, and we want the best interests of both children to be paramount. It is hard to square such an approach with an approach involving an appearance before the children's panel or any other criminal justice intervention.
I do not have anything to add to that.
I do not have much to add. The Equality Network does not work with children and young people, so we do not have a view on where the boundaries that separate what is and is not criminal should be. However, it is important to us that there is no sexual orientation discrimination in the law. It is clear that, at the moment, the law discriminates on grounds of gender—members have discussed that with other witnesses. If a 15-year-old boy and a 15-year-old girl engage in sexual activity, the boy—but not the girl—will have committed an offence. The law also discriminates on grounds of sexual orientation at the moment, because if a 15-year-old girl engages in sexual activity with her 15-year-old girlfriend, they will both have committed an offence, whereas if a 15-year-old girl engages in sexual activity with her 15-year-old boyfriend, she will not have committed an offence. We are pleased that that sexual orientation discrimination will be removed from the law.
Nigel Don has a question for Mr Page.
I want to return to the point that Mr Page made about taking a pragmatic approach and the Lord Advocate's discretion. In previous evidence sessions, I have been concerned that we could, for understandable reasons, finish up with a law that is routinely not enforced. It also seems to me that we are talking about a law that the average older child could not describe. The perpetrator of the offence would not be able to tell me or you what the offence was, because they would not know the circumstances under which it would be prosecuted or the circumstances under which it would not be prosecuted, which would apparently happen in the majority of cases. As someone who can discuss human rights, does the fact that people would not know the law offend you?
There is a general issue to do with the extent to which sexually active 15-year-olds refer to criminal statute before they decide what to do. That problem will doubtless remain.
We appear to have dealt with the bulk of the issues. Does Ms Constance have any further questions?
Mr Hopkins has anticipated my final question, but I wonder whether Ms Logan or Mr Page wants to give a view on the equalisation of the law on consensual sexual activity between young men and young women over 13 but under 16. Both groups are potentially criminalised.
I agree with what Tim Hopkins said. There used to be a problem, in that there was a difference in law between two young women in a relationship and a young woman and a young man in a relationship, but the bill will rectify that.
I am happy to go along with Tim Hopkins's and Mhairi Logan's comments.
We will have a final question from Bill Butler.
Are there other issues in the bill on which panel members wish to comment? Are there equalities and human rights issues that we have not yet touched on?
I have one further point to make, and I hope that I will not take too long to explain it.
So do I.
The issue is discussed in our written evidence. Section 13 of the Criminal Law (Consolidation) (Scotland) Act 1995, which is entitled "Homosexual offences", deals with most of the sexual offences committable between men. Most of the section will be repealed by the bill, with the offences being replaced by gender-neutral and sexual orientation-neutral offences, which is great. However, part of section 13 of the 1995 act deals with offences that connect to prostitution. The Scottish Law Commission proposed two years ago to repeal all those offences and to consolidate the necessary provisions with general prostitution offences that are also in the 1995 act. However, when the Law Commission published its draft proposals, it pulled back from its original position, because, it said, the Scottish Executive had excluded prostitution from the remit of the review—
I will interrupt you there, Mr Hopkins. You appreciate that we have to deal with the bill that is before us.
Yes.
I would prefer not to have extraneous matters introduced at this stage.
I am sorry. In that case, I will not talk about material related to prostitution, which is arguably outwith the scope of the bill.
Those discussions are for another place and time, of course.
Fair enough. However, the parts of section 13 of the 1995 act that the bill, as it stands, will leave in legislation include material that will require consequential updates, because of other measures in the bill. In particular, section 13(4) of the 1995 act defines "a homosexual act" as an act of
That is a useful clarification to add to what is in your submission.
I am obliged to Mr Hopkins as well, convener. We now have something to think about for sections 13(4) and 13(9) of the 1995 act.
I would like to make one final point on the question of rape with an object. As the bill stands, it is proposed that rape would only ever be dealt with as a solemn matter in the High Court. We would like that also to be the case for rape with an object.
The committee has already highlighted this issue during previous evidence sessions. In questions of coercion or threats of violence, we need to be sure that we do not have in our minds the scenario of the knife against the throat. The dynamics of coercion and violence in an abusive relationship can be much more subtle and insidious than that. An individual's ability to consent freely to sexual activity can be hampered in ways that might not be immediately obvious, and we must be aware of that.
Violence is sometimes described as violence such as would overcome the fortitude of a reasonable person. Is some sort of qualification to that required, to distinguish significant threats of violence from more minor incidents?
The issue is perhaps more complex than has been suggested. Sometimes things are easy to say but difficult to get right in law. Circumstances have to be taken into account. Enable's written evidence makes the point that threats that might appear minor or inconsequential to one person might, to another person, be extremely distressing and have a major impact on their future decisions. Legislation must therefore capture not so much the nature of the threat but the circumstances in which it is made.
I congratulate the panel of witnesses on evidence that was the acme of brevity and clarity. I am very much obliged to you all for that. Thank you for your evidence. The committee will consider carefully what has been said.
Meeting suspended.
On resuming—
I welcome to the meeting Norman Dunning, chief executive of Enable Scotland. We will proceed directly to questions, which will be led by Nigel Don.
Good morning, Mr Dunning. Fortuitously, I want to ask about section 10, which is where we left off. Will you expand on the suggestion in your written submission that the notion that someone might submit to sexual contact as a result of threats be reconsidered?
I agree with the previous panel that the issue must be seen in context. After all, what one person sees as a credible threat might not seem so to another. In that respect, people with learning disabilities might be much more suggestible to threats than others. As we say in our written evidence, a person's pet might be threatened or they might be told that they will never be allowed to go home again, and they will find such threats credible in a way that others might not. As a result, we suggest that if section 10 is to be amended, it should cover not only threats of violence but credible coercion or something like that.
I get the impression that, given those examples, we will not be able to list in the bill all the relevant threats.
Not at all.
Are you therefore suggesting that we should use phrases such as "credible threat", "threats that are relevant in all circumstances" or something like that?
Yes—threats that are relevant to the particular person in the particular situation. The issue obviously extends beyond people with learning disabilities, but we considered it in the context of how those people would react in the situation.
So you would be happy with a general proposition, along the lines that we have just discussed.
Yes.
You will be aware that the bill will repeal some sections of the Mental Health (Care and Treatment) (Scotland) Act 2003, relating to offences involving abuse of trust. Is the bill's approach to such offences an improvement on the 2003 act?
No. I must make it clear that Enable Scotland has changed its view. We gave evidence to the Millan committee in which we supported what became section 313 of the 2003 act. There were similar provisions in the Mental Health Act 1983, although they applied only to women with learning disabilities.
Do you envisage any scenario in which using the judicial system would be of benefit? I appreciate that your point is that regulation can help, but there must be scenarios—for example, involving predatory behaviour or someone abusing the trust of a number of individuals they are caring for—in which it would be more effective to pursue a criminal offence. You have set out specific scenarios, but the situation is complex. Surely the opportunity for criminal interventions should remain while understanding that regulation plays a role.
You make a valid point about predatory behaviour, although I refer again to the fact that the current law does not help—there are no prosecutions. There are also other ways of dealing with predatory behaviour, particularly by registered care or social workers, whose registration can be terminated.
Do you accept that there will be circumstances in which people might be preyed upon? I appreciate the consensual element that you referred to, and I recognise that there are adults with capacity, but do you acknowledge that those adults face complex issues? Do you accept that some individuals could take advantage of those circumstances, despite the capacity issue that you referred to? Surely there should be the opportunity to pursue criminal law. I acknowledge the issue that you raised about enforcement, but it does not take away from the fact that there are complex issues concerning the detection of such activities.
Again, it is a question of how best to help people with learning disabilities. Rather than "protecting" them—as I said, there is no evidence that the current law does that, and the new measures are very similar—we need to educate them and give them the confidence to be ordinary citizens. A lot of the information that we receive from people with learning disabilities with capacity is that they want to be treated like other citizens—like everybody else.
There are no other questions for you, Mr Dunning, so I thank you for your attendance. The issues that Enable Scotland is particularly involved in are difficult and sensitive, and we appreciate the fact that you have come to answer our questions.
Thank you.
Meeting suspended.
On resuming—
I reconvene the meeting and welcome the third panel of witnesses. The Rev Graham Blount requires only a limited introduction, as he is well known to members of the Parliament in connection with his work as the parliamentary officer for the Scottish Churches Parliamentary Office. He is joined by Alistair Stevenson, the public policy officer of the Evangelical Alliance. Good morning to you both and thank you for your attendance. The purpose of this type of evidence-gathering session—I direct this information to Mr Stevenson in particular—is for members to question witnesses about the content of the bill. We are not interested in any extraneous matters this morning; we are dealing with the bill as it is before us.
When we talk about sexual conduct among those who are in some sense children—whether younger or older children, they are our focus in relation to the bill—we see the regulation of sexual conduct fundamentally as a welfare issue. The welfare issues involved were well rehearsed in the committee's meeting last week with the children's charities and the children's commissioner. Broadly, we share their concerns and have discussed the matter with them.
May I interrupt you for a second? This is an important issue that we intend to examine in greater depth later on, if you will bear with us. I am interested in hearing what you feel is the role of the law in dealing with sexual conduct generally.
The law exists to protect vulnerable people. Obviously, in a given situation certain judgments will be relevant in determining which people are vulnerable and require to be protected in the context of consensual sex between young people. In most situations, we believe that it is appropriate to treat all those involved as equally vulnerable.
We agree that the law should provide protection. A lack of legal involvement in a case would send a clear message that the law does not give direct expression to the principle that vulnerable persons should be protected and seen to be protected. The law exists to provide protection for vulnerable people. We agree with Graham Blount on that point.
We will come to the issue of children presently.
I am happy to do so. We did not submit written evidence to the Justice Committee because we thought that our views were successfully taken on board by the Scottish Government when the bill was produced. We have no further problems with the bill.
That will no doubt come as great encouragement to the Government.
The Church of Scotland welcomes the broad intent of the bill. In certain areas of detail—other than those on which we have commented—we do not have adequate knowledge to comment further. We want the principle of protecting vulnerable people to be reflected in legislation, and we are persuaded that the bill as a whole seeks to do that.
That is perfectly straightforward. We turn to the definition of rape.
The committee has received a considerable amount of evidence suggesting that the crime of rape should be extended to include penetration with an object, instead of such conduct being covered by a more general sexual assault offence. Do you have a view on that?
The church has not taken a view on the issue. We recognise that difficulties arise wherever one draws the line in these matters. One would not want to broaden the definition of rape in a way that progressively made the offence seem less serious. That is not to say that there are not very serious forms of sexual assault that do not come within the definition of rape.
We have no evidence to submit on the matter.
Again, you have been quite clear. We move to the issue of children and young people.
The bill draws a distinction between younger children and older children, and suggests that whereas sexual relations between younger children should be criminal, sexual relations between older children should not necessarily be criminal. What are your views on that issue?
Drawing a line at a particular age is problematic, but it seems sensible to recognise that there is a difference between very young children and teenagers.
You referred to the role of the criminal law. Can you elaborate on that? Has the General Assembly of the Church of Scotland taken a formal position on issues relating to the bill?
The General Assembly appoints the church and society council to speak for it between General Assemblies. The council submitted a response to the consultation on the Scottish Law Commission's proposals, and the contents of that response are reflected in what we have said at this stage. The General Assembly was aware of our response when it met earlier this year. It did not debate the matter formally, but it did not seek to change what had been said in the church's name.
Does the church have a specific position on how the criminal law should relate to younger and older children?
We made our submission before the General Assembly. I am not sure that I understand your question.
I am seeking to ascertain whether the church's position could change. When the General Assembly meets again, could there be developments in its position?
That is always possible, as is the case in any organisation. When Enable Scotland gave evidence to the committee, it indicated that its view had changed. Our position was known to the General Assembly earlier this year, but it did not seek to change it.
I think that the clearest message I can come to you with this morning is to say that, while the Church of Scotland has a view on this, certainly Christians across denominations are particularly divided on the issue. I suppose that I am here this morning to provide the other side of the argument and to say that although, initially, it is extremely difficult, as has been said, to draw lines in the sand in terms of age, it is important to do so, as the Rev Graham Blount has indicated. We think that, although some children might have the capacity to understand the implications of their consent, many children between the ages of 13 and 16 do not. Children are more likely to be vulnerable to exploitation and are less likely to understand the capacity either to withhold or to give consent. We therefore agree with the Government's position that children between the ages of 13 and 16—older children—should be criminalised in some cases.
So you believe that the law plays a role in regulating sexual behaviour among young people.
We do, yes.
The Rev Graham Blount's view is slightly different. In your written evidence, you suggest that the criminalisation of young people is unacceptable.
That is not entirely the same thing as saying that the law does not have a role to play. We do not believe that criminalising young people who engage in consensual sex within the specified age parameters is the most effective way of discouraging them from engaging in that activity or of ensuring that those who engage in that activity are supported.
I appreciate the point that you are making, but do you believe that the law has a role in regulating that behaviour? You say that the law is not the most effective means of preventing that behaviour, which is one argument, but do you believe that the law plays a role in preventing that behaviour? In other words, is there a role for the law or are there some intervention opportunities to deal with that behaviour in some instances?
There are intervention opportunities in law for situations in which the sexual activity is not consensual. We have no reservations at all about the role of the law in such situations. We favour a legal position that makes the situation a matter of a welfare referral to a children's panel. That would be a use of the law but not of the criminal law.
Would you be relaxed in the knowledge that all prosecutions in Scotland are at the discretion of the Lord Advocate, whom we hope would ensure that the cases that you have in mind would proceed on a sensitive basis?
Yes. Our concern is about the passing of new legislation that would, rightly, extend the crime by making it even-handed for both boys and girls, if—as the implication appears to be—the Lord Advocate issues guidance that the law should not normally be enforced.
I can see the force of that argument.
I refer to sections 27 and 29. The bill seems to want to continue to criminalise penetrative sex, but will apparently legalise oral sex, between young people aged 13 to 16. What are your organisations' views on that? The Church of Scotland expressed concerns in its written evidence and said that it is "not persuaded" by section 27 and section 29. Perhaps the Evangelical Alliance could comment on whether the Government was able to allay any of its concerns before the bill was introduced.
That is a really important issue that we have continued to think about since we first saw the Government's proposals. Unfortunately, it has not been picked up until now. If we were pushed on the point, we would say that in relation to penetrative and non-penetrative sex it is difficult to start drawing lines in the sand. Unfortunately, we do not have any answers on the issue, and I am not entirely sure whether it is appropriate to start drawing lines in the sand. The current situation seems to be working—there is no evidence to say that it is not. Some ambiguity in this matter might be helpful in providing space for cases to be judged case by case and to be left to the discretion of the prosecutor or the Lord Advocate.
I do not disagree with anything that Alistair Stevenson just said. The church did not express unhappiness about sections 27 and 29; it is fair to say that we did not consider the detail.
Are there any risks associated with criminalisation of sexual conduct between older children? I would welcome some detail on that.
There is a risk in respect of support. If there was not a threat of an appearance in court, children who had engaged in sexual activity but regretted it might be more likely to look for support both within and beyond their family. That is one reservation that we have about the use of the criminal law. It might be helpful to bring older children who are in such a situation to the children's panel, not on criminal grounds, but on welfare grounds.
I might be reiterating the point that I made earlier, but the welfare of the child is of utmost importance for any Christian and, I am sure, for every person at the table. We understand that criminalising sex between older children has implications, but we feel that they do not outweigh the message that the law sends, and would continue to send, to children in that situation, which is that the people who make the decisions for them feel that it is not appropriate for them to have sex. The children might not understand that at that moment in time. Putting on my teenage hat, if I was a 15-year-old, I suppose that I would like to rest assured that the people who have made the decisions—who are more intelligent than me and who have been around a lot longer—have seen the evidence and understand the implications more than I do and therefore have the authority to speak on the matter. If that was in my mind as a 15-year-old teenager, it would be fundamental to the next step that I would take in such a situation.
I cannot help but point out that the Rev Graham Blount has been the first person who has actually supported the position behind my line of questioning, which is that a law that is not routinely enforced may not deserve the title of law and might be counterproductive. However, although it has been suggested that we should simply decriminalise such sexual activity, doing so would send the wrong message. Generally speaking, that does not have much support. Have any of the people to whom Graham Blount has spoken made suggestions about how we might find some middle ground? Is there a legal turn of phrase or another way of doing things that would achieve the objective that we both have of making an understandable and enforceable law that nonetheless sends the right messages?
I wish that I had a bright answer to that, but none has been found. The committee has previously heard a witness—it may have been the witness from Barnardo's—speak about the need for robust public health campaigning and the provision of support services for young people. That must be part of the argument. The churches' welfare concern would be reflected by introducing in the bill a statutory welfare-based referral to the children's panel in such circumstances. However, none of those measures is the magic bullet that will sort out the issue. We need to consider working with families to support parents and teenage children in dealing with the pressures that they face. I am pleased that, in some places, churches are involved in that. Personal support that is provided in an on-going way, and not as a result of a case being reported, is crucial to changing things.
Do you accept that, if we put that in the bill as a first line of attack, with the offence as a subsequent line, as it were, the Lord Advocate would not have discretion because she would not have the locus in the first place to investigate the case? As far as I understand it, we must retain the offence throughout, even if we then say that it will in practice be dealt with through the children's panel.
I am open to correction, but I understand that if there appeared to be a lack of consensual activity, the Lord Advocate would want to investigate using other provisions in the bill.
I think sections 1 and 2 apply to anybody of any age when there is a clear lack of consensual activity. The problem arises when it is not entirely clear. My understanding of the justification for the bill as drafted is that the Lord Advocate can exercise discretion from the very beginning and that therefore, in effect, the police can from the beginning exercise their discretion to investigate a matter so that it is dealt with through the criminal system, to the point at which a decision is made not to prosecute rather than the matter having to be revisited once the health issues have been dealt with. I think that is the basis on which the bill is drafted and that we are stuck with it. Do you accept that?
I tried earlier to express my concern that the bill might lead to young people finding themselves in court under sections 1 and 2 when the basis of the Lord Advocate's discretion to proceed with the matter is something that is not, on the face of it, what they have been charged with.
The bill will extend criminal responsibility for consensual sexual acts to girls aged 13 to 16, whereas at present such criminal responsibility extends only to the boy. Do the witnesses agree with that extension of the criminal law or, as has been suggested strongly by responses to previous questions, do they believe that the criminal law should not be involved when there are consensual sexual acts between older children and that, as the Rev Graham Blount said, there should be a statutory welfare-based referral to the children's panel?
Our belief is that whatever legal provision is made should be even-handed between boys and girls. As you say, we have already made the point about what we believe it is appropriate to deal with in legislation.
Is it the Church of Scotland's position that such acts should not be dealt with under criminal law?
Yes. That is the position to which the church has come.
We agree that there should be a general principle of gender neutrality.
Should the criminal law be involved?
Yes. I think it should.
There are no further questions for the panel. I thank the Rev Graham Blount and Mr Stevenson for giving their evidence so clearly.
I would like to say one thing that I have not said in response to any of the questions.
Thank you for putting that on the record. That is helpful. I again thank you both very much.
Meeting suspended.
On resuming—
I introduce the final panel of witnesses. We are joined by David Greatorex, who is head of research at the Christian Institute, and Dr Gordon Macdonald, who is parliamentary officer at CARE for Scotland. The committee is greatly obliged to you for giving evidence. I am sorry that you have been kept so long, but you will appreciate that we have had a heavy morning's work. That said, we move to questions, which will in some respects repeat the questions that were asked of the previous panel. I open by asking what the panel considers is the proper role of criminal law in regulating sexual conduct.
We agree with the earlier comment that the role of the criminal law is to protect vulnerable people. However, it is also to prevent harm, which is obviously part of protecting vulnerable people.
We echo that. The role of the criminal law is to prevent harm—it is a protective measure. As Alistair Stevenson said, the message that is to be sent and which comes out clearly in the policy memorandum is that the law has a role in regulating sexual conduct and in indicating society's disapproval of children engaging in such activities.
In their representations to the committee, the religious organisations have generally backed the provisions of the bill. Are there any aspects of the bill that you find unacceptable? If so, what are they, and what are your reasons for finding them unacceptable?
Our main concern about the bill is that it underestimates the seriousness of oral sex. As has been mentioned, certain sexual activities will be criminal under the bill, but activities such as oral sex will not be criminal. When we talk about child protection and welfare, we must consider how serious oral sex can be; for example, sexually transmitted infections can be transferred through oral sex. Alistair Stevenson talked about drawing lines in the sand. We consider that this particular line has been drawn in the wrong place. We would like the law to apply to oral sex in order to indicate society's disapproval of that conduct.
I generally support that position. With sexual activities such as non-penile penetration, where one should draw the line can be quite difficult to judge. However, our concern is that there should not be opportunities for people to behave in a predatory way in relation to oral sex or other fairly explicit sexual activity.
We turn to the definition of rape.
The committee has received considerable evidence suggesting that the crime of rape should be extended to include penetration with an object. Does the panel have a view on that matter?
We have not considered that issue particularly. We approve of the fact that oral sex is to be included within the definition of rape. I do not want to bang on about the same point, but we consider the fact that that is defined as rape under part 1 means that there is a disparity and that it is not treated as seriously with regard to older children in part 4.
It is not an issue that CARE has considered.
Fine. We turn to the sensitive issue of sexual activity between children and young people. Paul Martin will lead the questioning.
Gentlemen, what are your views on the role that the criminal law plays in regulation of sexual behaviour between young people?
I return to our answer to the first question. The law has primarily a protective role to prevent harm and to act as a deterrent. Specifically, where there is harm or predatory behaviour, the law acts as a mechanism for intervention so that that behaviour can be addressed by the appropriate authorities—the police, social services or whoever.
Paragraph 113 of the policy memorandum acknowledges the importance of the criminal law in guiding young people's behaviour. That is true of full sexual activity and, we believe, of oral sex. The message-sending role of the law is important: if any hint of a watering-down of the law is given, it will be taken as a weakening of the law. We do not want to encourage any form of underage sexual activity by weakening the law or giving the impression that the law has been weakened. The criminal law is an important indicator of society's views.
Are you suggesting that young people think about the current law and decide that they should not engage in sexual behaviour because of the possibility of their being brought before the courts?
The law will have a deterrent effect on some young people, although not on all. The fact that 30 per cent engage in sexual activity indicates that the law is not a deterrent to all, but some of the remaining 70 per cent will be deterred by the law. The Children 1st study found that children are using the age of consent as a buffer—an excuse or prop—to enable them not to consent to sexual activity. That is an important sign that young people do think about the law in this area.
The bill draws a distinction between younger and older children. What are your views on that?
We would not draw such a distinction. Essentially, we argue that 16 is the appropriate age of consent for sexual intercourse.
I agree that 16 is the correct age of consent. We would not like the law to be watered down, because we believe that under-16s are still children. Nevertheless, we acknowledge the reasoning behind the drawing of that line. We say that children under 13 have no capacity for consent, and that children over 13 but under 16 have limited capacity. We still consider that children under 16 are vulnerable and require protection, and that they do not have the necessary capacity to consent to the types of sexual activity that we are talking about.
I am aware that this is not the Health and Sport Committee, but from a purely health-focused point of view, the earlier people engage in sexual activity, the greater the health risk. That is certainly the case for cervical cancer. The age range 13 to 16 is crucial. We should seek to use not only the criminal law but other mechanisms to encourage young people in that age group not to engage in sexual activity. At the end of the day, the criminal law will not, on its own, solve the problem.
In its submission, the Christian Institute says that
Obviously one concern is that if a broad definition is used, children will be criminalised for kissing. That concern is often raised, but the area is exactly one where discretion is important and there is room for common sense. That is why we said "any sexual activity". Discretion is required. By having the provision drafted in that way, someone can intervene, even in circumstances in which full sexual activity is not involved.
In its submission and its oral evidence this morning, the Church of Scotland made it clear that it views the matter as a welfare issue. I may be putting words into the church's mouth, but I understand that it thinks that the bill should be written appropriately so that it does not end up as law that is never enforced.
I do not, no. There are many roles for the law. If not every case is prosecuted, the message-sending role of the law is not undermined—society's standard is still clearly set out. Some people will benefit by being deterred and others will be enabled to say no. We learned that in evidence from Children 1st and similar evidence was heard in England and Wales when sexual offences legislation was considered in 2003. It was heard that children used the age of consent as a prop not to engage in sexual activity in which they were unwilling to engage.
The Christian Institute's submission raises a great number of concerns about part 4 of the bill—indeed, part 4 is the focus of your submission. How would you change part 4 to meet the concerns that you have set out?
That is quite a question, and one that is probably beyond my pay grade.
Last week we heard from many organisations that work with and represent young people. The Commissioner for Children and Young People in Scotland made the point that, under the bill as drafted, if my next-door neighbour's 15-year-old daughter becomes pregnant, she will be a criminal. In terms of the opportunity that the bill provides to look at legislation in this area, is that the right way forward?
There is important room for discretion. We are looking at the wider picture—the message that is sent when we legislate in this area. We are concerned that focusing on difficult cases such as the one that you have described could dilute the message that is sent. We would like to maintain a firm position in the law, while allowing for discretion. Legislating for more difficult cases could allow cases in which the criminal law needs to intervene to slip through the net.
Presumably the 15-year-old would be recorded as a criminal only if she were prosecuted and convicted in a court. As we have heard, that is unlikely to happen unless there is evidence of abusive behaviour.
If the case were referred to the children's hearings system, the offence would be recorded, although that is not a criminal conviction.
You say that there should be flexibility and discretion to enable us to deal with particularly difficult cases. As we see in other areas with which we have to deal, young women below the age of 16 get pregnant all too often. Should discretion be exercised so that such cases are never prosecuted or, as other witnesses have suggested, should the individuals concerned receive welfare, education and training? Are we making legislation that we intend never to enforce? What is the point of having such legislation? One piece of written evidence—it may have been from the Christian Institute—stated that that would send out the wrong message; it would be saying that it is okay to break the law, because there is a way to get off.
People need to remember that we are starting not with a blank sheet of paper but with the current law. The argument has been made that we should not pass laws that will not be routinely enforced or prosecuted. However, I do not imagine that the law is likely to be enforced routinely in cases where two 12-year-olds have had sex, even though that will remain an offence under the bill. No one is proposing that it should not be an offence just because there may not be a prosecution. There has been a tendency to see the issue in purely theoretical terms.
Cathie Craigie said that children are becoming pregnant routinely. I am sure that we all want to reduce the number of such pregnancies and we should use every tool that is at our disposal to do so. The criminal law is one tool that we have. The law's deterrent role is real and significant and it can be applied through the bill.
You talk about the criminal law's deterrent effect, on which one can have varying views. Do you have evidence, such as research, that the criminal law has a deterrent effect on sexual conduct?
I have nothing to hand. We have the evidence from Children 1st that the law is in some children's minds, because they use it as an excuse not to consent. However, I have no research to offer the committee.
That is fair enough.
As you know, the bill will extend criminal responsibility for consensual sexual acts to girls who are aged 13 to 16, whereas at present only the boy has criminal responsibility. Do you agree with that extension of the criminal law?
Yes.
Yes.
At the end of the previous panel's evidence, the Rev Graham Blount said that the Church of Scotland supports the call that we heard in evidence last week for further consultation with children and young people. Do you support that?
The findings of Children 1st were interesting. The role of the law as a prop to allow children not to consent should be further considered. However, we return to Alistair Stevenson's comment that older and wiser heads should legislate, rather than children themselves. We would consult children and be interested in their views, but we would hesitate to give those views too much weight. The criminal law has an advisory role in regulating children's conduct, so we would hesitate to allow them total freedom to dictate that regulation.
I am not sure whether the committee should undertake such consultation. The danger is that the sample will be skewed, particularly if specific organisations arrange the consultation. I am not sure what age of children the committee would consult. I do not particularly want you all to turn up to interview my four-year-old, thank you very much—not that I would not welcome you for a cup of coffee any time you liked. The question is what is appropriate. Obviously, the committee will exercise discretion in deciding what it wants to do; however, if you go down that road you must ensure that you get a balanced sample of opinion rather than the views of a selected number of people. That is where I would consider there to be some difficulty with that course of action.
Convener, the suggestion was made last week that there should be age-appropriate consultation.
That is not to say that Dr Macdonald's four-year-old might not have some sensible contributions to this or any other discussion.
I would like to put on record, for the avoidance of doubt, the fact that I am a member of the Church of Scotland and the sponsor of Alistair Stevenson's regular visitor pass.
That is noted, Mr Don. Do any other members have interests to declare in that respect?
I, too, declare that I am a member of the Church of Scotland. I did not realise that I had to say that.
The interest is peripheral; nevertheless, your declaration will be recorded.
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