Item 4 is our first evidence session for the Sexual Offences (Scotland) Bill. The committee will take evidence from Rape Crisis Scotland, Scottish Women's Aid and Victim Support Scotland.
Good morning. In their evidence on section 1 of the bill, both your organisations agree that there should be an offence of sexual assault by penetration. What sort of conduct would be covered by such an offence?
It would be penetration by objects. Committee members will remember that, in its first consultation report, the Scottish Law Commission proposed a separate offence along such lines. However, the commission changed the proposal in its final report and subsumed the offence within an offence of sexual assault. We would prefer to revert to the original proposal.
Scottish Women's Aid agrees with Rape Crisis Scotland's interpretation.
Have you had any discussions with the Government on possible amendments to the bill to incorporate your proposal?
The Government's position seems to be that it would prefer to keep the offence within sexual assault. I think that the Government thinks that it would be too complicated to have three types of charge—rape, sexual assault, and penetration by an object.
But have you had discussions with the Government on this?
Yes, we have had some discussions.
What advantages would there be if your proposal were included in the bill?
It would emphasise the severity of the behaviour and of the act perpetrated on someone's personal integrity. We are talking in particular about violence against women, but the violation of someone's person by an object should be acknowledged as being equal in severity to rape. If that offence were enshrined as a separate offence, and not subsumed among other offences, it would give weight to that view of the severity of the offence.
Is your view based on your experience of supporting women through difficult times?
Women have commented that violation of their person by an object is as distressing as penile penetration. Although we clearly wish to differentiate between penile penetration and penetration by an object, they are equal in severity. When someone's personal integrity has been transgressed and abused by someone else in either of those ways, the trauma is equal. From what women have told us, that has to be acknowledged.
Those were very clear answers. Thank you.
We will now turn to the questions of consent and reasonable belief.
Good morning. I think that everyone would accept that these are tricky areas. Both of you have made observations on the question of advance consent. Rape Crisis Scotland has suggested that it is "absurd" to argue that advance consent given at 6 o'clock in the evening should still apply at 1 o'clock in the morning after people have got drunk. Will you elaborate on that, bearing in mind the indefinite nuances of human behaviour?
We are really concerned about the introduction of the concept of prior consent into legislation. At the moment, if someone says that they were asleep, the Crown has to prove that they were asleep. If the notion of prior consent is introduced, it will make rape even harder to prove—and it is already extremely hard to prove. The Crown would need to disprove the existence of prior consent in a rape trial. That goes against the philosophical underpinnings of the bill, which are based on sexual autonomy—that is, that a person can withdraw consent at any time. The notion of prior consent is problematic.
Is this a question of principle, or a question of where the burden of proof should lie? If the burden of proof lay with the defence, the proposition might be different.
I think that, as drafted, the bill does not put the burden on the accused—although I could be wrong about that. However, it is unclear how the question of advance consent would be proved in court.
I presume that whether people have consented is raised from time to time anyway. Often, that goes to the heart of the offence. Is it possible by however the thing is defined to avoid that being raised by the accused in such cases?
Our experience with legislation on sexual offences is that we need to be cautious about unintended consequences. For example, the legislation on sexual history, which was supposed to improve protection, has had the opposite effect. That is why we are cautious about the wording of paragraphs (a) and (b) of section 10(2). We are concerned that introducing the concept of prior consent could have the unintended consequence of worsening the situation.
One way or the other, does the law not have to deal with the huge practical issues that arise from such situations? That gives everybody problems. What arrangement would you prefer for dealing with the matter?
I would not say that we have an absolute solution to propose. The concept is problematic. We feel that prior consent has no place in any legislation that is based on sexual autonomy. However, I understand the intention behind including it, which is not to criminalise consenting behaviour, such as that between a long-standing couple. Prior consent is problematic and we are interested in what solutions are possible.
The committee is interested in any further views from you on alternatives that might be developed, because pulling all that out is important.
The concept goes against the bill's principles that consent is not a contract and that consent can be withdrawn at any time. In our submission, we gave the example of someone who gives consent at 6 pm to sex at midnight but who is so drunk at midnight that they cannot withhold their consent. In that situation, the provisions would be contrary to the principle of sexual autonomy, because if that person was drunk to that extent, they could not withhold their consent.
The difficulty is that people do not analyse matters in the legal way that we are trying to apply. We are dealing with a serious crime that leads to serious consequences for someone who is convicted of it. I still have difficulty in getting to the heart of what advance consent means. A common example, which you gave, is of someone who is all set for sex later in the evening but who becomes drunk. In those circumstances, is the conduct rape? Consent has not been withdrawn, but it has not been renewed, either. Where does the balance lie for the definition of the offence?
I appreciate that the question is complex. Our view is that if somebody is so drunk by midnight that it is clear that they have no capacity to consent, any prior indication should not hold. Such consideration of sexual matters and how they are negotiated is difficult but, if somebody is almost unconscious, do we really think that it is acceptable for somebody to have intercourse with them because of something that they said at 6 pm? That approach is not helpful.
The problem is that the matter often boils down to difficulties with the burden of proof rather than with the principle, which is—oddly—sometimes a little more straightforward.
The Scottish Law Commission made it very clear that it did not intend what it proposed to be interpreted as the violence or threat of violence having to take place at the same time as the rape. I am not clear that that is the message that we get from the bill. That may be the intention, but it is not our reading of the bill. In asking whether the drafting has the same effect as the intent behind the legislation, we are being cautious.
So, your proposition is that account should be taken of the threat of violence or actual violence, whether committed contemporaneously with the crime or at an earlier point, provided that it caused the result. Is that fair?
Yes.
That may be a matter of tinkering with the wording.
Exactly.
Do you have any suggestion as to how that could be done or is the question one for the lawyers to take forward?
It is for the lawyers.
We would like there to be a reference in the bill to a pre-existing relationship of violence or sexual exploitation, to show that the violence or threat of violence would not have to occur immediately before the rape. For a woman who has been abused for a length of time, the threat of violence will exist, and will have done so for some time. The threat does not need to have been made at the time of the rape; it is enough for there to have existed a threat—or the threat of a threat—that violence could be used. The drafting needs to take account of the historical context of relationships in which violence or abuse are, unfortunately, present. I think that the Zero Tolerance Charitable Trust commented on that in its submission. The draftspeople could look at that.
Yes.
That is an interesting point. Finding evidence of such abuse is one of the main difficulties. If there were evidence of a pre-existing relationship in which there was a history of one party—in our case, obviously, it will be the woman—being subject to violence or domestic abuse, and perhaps a history of complaints being made about coercion, it should be possible to use that. The problem is finding evidence of that and proving it. We are looking for a presumption that takes account of prior offences or behaviour.
Is any qualification needed? Clearly, it is one thing for someone to have committed 10 offences of violence over the previous two years, but what if they had committed one such offence 10 years ago? What is the cut-off point? What would lead to the presumption that you propose?
A number of organisations raised the question of a cut-off point. I cannot say what it would be; the interpretation would have to be made by the Crown in prosecuting the offence. The Crown would have the evidence and it would have to take the decision.
Obviously, the Crown would need to prove consequence. As Louise Johnson said, it would have to prove that the offence was a direct effect of previous violence. Ultimately, without the qualification of consequence, one would be saying that, where there is domestic abuse, there is no possibility of consensual sex. We are not saying that; we are saying that there are times when direct consequence can be considered.
One has to be very careful about including things other than formal court convictions because, as with everything else in such cases, they would be subject to uncertainty.
We do not want to persecute women who, although experiencing domestic abuse, still have a consensual sexual relationship, but we want to cover the women who—frequently, I have to say—do not. As Sandy Brindley said, the Crown is probably the best source of advice on this matter.
Bearing in mind that they are "without prejudice" to the general proposition in section 9, are the circumstances that are set out in section 10(2) adequate? Should anything be added or removed?
We are concerned about the operation of section 10. For example, we are unclear whether the accused will still be able to use the defence of consent if the Crown has proved the existence of any of the circumstances in section 10(2). We—and, indeed, a number of other people—had assumed that that would not be the case but, having looked at the detail of the bill, we are not so sure. The point requires consideration because, after all, there is not much point in having such a list if the whole thing comes back to the question whether the accused had a reasonable belief in consent. As a result, section 10(2) needs to be clarified.
I wanted to come in much earlier, but I must say that I was interested in your comments about the presumption against consent in an on-going relationship in which there has been violence. I think that your responses have highlighted my own concern not only about the difficulty of knowing how much weight to give to evidence of something that is to an extent—however small—present in many relationships and how on earth we balance such considerations but about whether the presence of such evidence means that consent is impossible. Taking such a position might make good law but is actually a social nonsense.
I think that they very fairly accept that fact.
We do.
Paul Martin has some questions on reckless behaviour.
Why has Scottish Women's Aid recommended that a number of offences in the bill be extended beyond intentional wrongdoing to include reckless behaviour?
In examining this issue, we focused in particular on children. In cases of domestic abuse, a child might be present when other things such as the presentation of sexual images, indecent communication and sexual activity are going on. The person responsible might in certain circumstances not have any deliberate intention, but we feel that their recklessness in not considering the consequences of their behaviour on a child and whether their actions are incorrect should be enough with regard to these offences.
Does existing legislation not cover that kind of behaviour?
I believe that the bill refers to intentional behaviour, which means that a person intends their actions to have certain consequences for a child. However, the bill should also recognise situations in which, without necessarily intending it, people recklessly participate in certain activities without being concerned that a child might be present or, indeed, recklessly encourage them to be present at a viewing of or to view pornography, for example.
Do you feel that the matter should be dealt with through the various sentencing tariffs and that the available tariffs should be increased?
The problem is that recklessness is not included in the wording. You would have to speak to the Crown Office and draftspeople to do this, but we would suggest changing the wording to cover recklessness, in addition to intentional behaviour. We have not considered sentencing, but if a child was affected as a consequence of the behaviour, there would be a case for the sentencing to reflect that.
Would you refer only to children in that?
Children are powerless in a number of situations. They can be in a situation—in front of a television or other people—that they cannot take themselves out of, and they can be prevented, intentionally or otherwise, from leaving. While they are unable to protect themselves, we have the responsibility to protect them by ensuring that people are held accountable for the consequences of their reckless behaviour on a child. That should be covered.
We would be keen to consider the matter in relation to both children and adults. At the moment, the barrier of proof is set quite high, and the Crown Office would need to prove both intent and purpose. The purpose could be problematic to prove, so the concept of recklessness—or just removing the provision dealing with purpose—could deal with the concerns.
We move now to the issue of sexual abuse of a position of trust with reference to mentally disordered persons.
Scottish Women's Aid has expressed concerns about the availability of the defence under section 36(2) that the accused was the complainer's spouse or civil partner. Do you believe that it should never be a defence in such a case that the accused was married to the complainer at the time?
That question probably takes us to a discussion that is similar to our earlier discussion on consensual sexual relations in a relationship where abuse is present, and our argument is the same. We are concerned about a situation in which a mentally disordered person is not coerced but persuaded into a sexual relationship that is not in their interest and in which they are abused.
In all the situations that I can get my mind around, the partnership will surely have been of long standing.
Not necessarily.
Is it really likely that people will form a partnership in which one party is mentally disordered? Are we not dealing with situations in which one party probably has a degenerative disease, which by definition takes time?
You would probably have to consider the nature of the relationship beforehand. If someone had a degenerative disease, the issue of on-going consent would have to be considered, including what the person was consenting to and their general relationship with the person with whom they were engaging in a sexual relationship.
Does the provision not presume that there is a marriage or civil partnership? That is what section 36(2) says.
It actually mentions spouses, civil partners and, I think, sexual partners. Is that right? I think that there is wording about sexual partners so, off the top of my head, I do not think that a formal relationship needs to be involved.
I confess that that is not my reading. To me, section 36(2) says that person B is person A's spouse or civil partner.
It would be a defence if they were a spouse or civil partner. However, we are also talking about situations in which people are in sexual relationships and are not spouses or civil partners. We are back to the situation of rape in marriage—that is a parallel. A civil partner or spouse has the same protection as anyone else, whether or not they have a mental condition. I think that the section is trying to refer to people who are in a long-standing relationship. As I said, we would need to consider abuse within such relationships, which could be comparable to rape in marriage. However, we are mostly concerned about people who are having improper sexual relations with women who did not have the capacity to consent when the relationship started in the first place.
In your defence, I point out that section 36(2)(b)(i) seems to cover sexual relationships. I think that that is what you were referring to.
Thank you.
I correct myself—I see where you are coming from.
Somewhere along the line, we would like a statement to the effect that the giving of consent to one sexual act does not by itself give consent to a different sexual act. If I remember correctly, that was mentioned in the Scottish Law Commission's recommendation. Our submission on the bill states:
I accept entirely the general point about consent to one thing not being consent to another—I suspect that that applies throughout. Forgive me, but I am still slightly confused about how that relates to section 36(2), because that is about defences to charges under section 35, which, as I read it, is about abuse of trust, rather than consent to one thing or another.
Let us take rape in marriage as a parallel to a situation in which there is an abuse of trust. Just because someone is a spouse or civil partner, that does not mean that their partner cannot commit an offence against them if they did not consent on a particular occasion. Off the top of my head, I cannot tell you the exact wording that we are looking for in sections 35 and 36. However, I would welcome additional discussions with the Crown and the draftspeople about the wording that we could use to cover all the bases, as you said, but not in a way that would be overly restrictive and therefore penalise people who did not have intent. Part of the wording should address intention—when the Crown considers prosecuting a case, it should ask what the person's intention was. Mens rea would be very important in that regard. I hope that that answers your question.
I do not think that we can take it any further at the moment, but thank you for the discussion.
Stuart McMillan has a question about relationships between older children.
Good morning. In its evidence to the committee, the Church of Scotland said:
We have taken a pragmatic approach to the provisions. Our concern about moving to the decriminalisation of consensual sex between older children is based on the question whether there is a difficulty with the current position, which is that such sex is criminalised but cases are not actively prosecuted when there is genuine consent. We are not aware of evidence that there is significant difficulty with the current position.
I agree with Sandy Brindley. Our view is that there should be a case-by-case approach and that prosecution would take place where it had to take place, as it were. We cannot move away from protecting children. If the relevant provisions were not in the bill, children would be at risk. We have to protect children from situations in which consent is not present. There is a great debate about what consent means to young teenagers who are under pressure from the media and their peers to acquiesce, be grown up and engage in a sexual relationship with someone. There has to be the opportunity to protect children in such circumstances, which is why the provisions would be used when they had to be used—if that makes sense.
The area is difficult. I get the impression that England and Wales really struggled with it and have not come up with a helpful solution. Having weighed up the policy's implications against the proposal from the Scottish Law Commission to decriminalise, our pragmatic view is that the policy in the bill takes the best approach, although there are arguments on both sides.
The bill extends the criminal law to bring young women within its ambit as offenders. For example, a 15-year-old girl who allows or encourages her 15-year-old boyfriend to have intercourse with her does not, under the current law, commit an offence; however, she would commit an offence under section 27(4) of the bill. Does Rape Crisis Scotland support the extension of criminal liability to include young women?
It depends what the prosecution policy is. I certainly would not support prosecution in situations in which activity was genuinely consensual. I do not think that that would be in anyone's interests. It all depends on the circumstances. I see the provision being used in cases in which there are questions about whether the activity was genuinely consensual.
If we were not to prosecute in such circumstances, what would you consider to be the appropriate response?
It would depend very much on the circumstances. It would not necessarily be helpful for every single case to be referred to the children's panel. For a start, the children's panel would struggle to cope with the level of referrals. We would need to respond on a case-by-case basis, depending on whether there were concerns about the behaviour.
You may well be right—that is a sad commentary on our times.
Ms Brindley said that the section on older children should be used when it needed to be used—it should be available. Can you envisage circumstances in which that section would need to be used but in which the use of section 1, section 2 and the following sections would be inappropriate? Most of the things that I conceive of as being non-consensual would be covered by the general principles in section 1, section 2 and the following sections.
At the moment, the Crown has the option of going for a conviction of unlawful sexual intercourse where it is not able to prove rape. There could be an alternative charge in such cases.
Section 2 covers unlawful sexual intercourse without consent. Are we talking about considering prosecuting older children in circumstances in which consent was present? That seems to be the only circumstance in which section 1 and section 2 would not apply.
Although those sections might apply, the question is whether the offence can be proved. We know that in Scotland the conviction rate for rapes reported to the police is 2.9 per cent. There might be circumstances in which using section 27 is another option for prosecutors.
Forgive me, but I still do not see why that is another option. I do not think that the burden of proof for offences under section 1 and section 2 is different from the burden of proof for offences under section 27, which covers older children. I am struggling to see why we need the provisions in section 27 as well as the provisions in section 1 and section 2 if we are dealing with cases in which the behaviour is non-consensual.
The difficulty is proving when activity between children who are over 13 and under 16 is consensual and when it is non-consensual. I do not know whether the policy intention was to say to children who are engaged in such conduct that we are not going to charge them with rape. I have no idea whether the policy intention was not to stigmatise such behaviour.
This is about questions of consent. With rape, it is obvious that lack of consent needs to be proved. Rape is incredibly difficult to prove, and that will continue to be the case if the bill is passed as drafted. The provisions in section 27 would provide another option in cases in which there were serious concerns about non-consensual behaviour. The way that we formulate the offence of rape makes it very hard to get a conviction.
I will put my teenage hat on at this point. If I were a teenager in circumstances in which there was consent, as I saw it, I would think that you were generating an offence that was specifically designed to penalise me. It would seem to me that you could not prove lack of consent, but you were going to get me anyway.
We are taking a pragmatic approach. Ideally, we would have a formulation for rape that was provable in more than 3 per cent of cases. Prosecutors are being offered another option in cases in which there are serious concerns about a pattern of behaviour around non-consensual or coercive sex, to which our law cannot currently respond because of the way in which it is formulated.
If I may, I will play devil's advocate for a little bit longer. As I understand it, we are proposing that the law should be a convenient tool for the prosecution to use in cases in which there are serious concerns—those are your words—leading to a criminal conviction and record, but that we will turn a blind eye in the majority of cases. If I could turn the clock back to when I was a teenager, that would seem a tad unfair to me. I am not sure that I am desperately happy that we should be writing the law of the land in that way.
Both options have significant consequences, such as criminalising or decriminalising, or having a policy of non-prosecution. I understand why the Scottish Law Commission has recommended not legislating for an offence when there is no intent to prosecute in most cases. We support the bill's approach for a pragmatic reason. There are real concerns about coercive sex and the pressure on young people to have sex, and there are also worries about what decriminalising consensual sex would mean for children under the age of 16.
I am not sure how we write the law; perhaps we should let the people who use the words worry about that. Could the law say that, in some sense, it is unlawful to have sex in such circumstances and, if someone does, they will be liable to be referred to the children's panel—although I take the point about resources—and leave sections 1 and 2 as the criminal part? In other words, we would still have the adult law on rape and sexual assault, but we could make sure that it is understood that sex between the ages of 13 and 16 has consequences, albeit not criminal ones. That was all very convoluted, but does it sound like a way forward?
I think that the Scottish Law Commission's proposal has been changed in the bill.
If I remember correctly, the Scottish Law Commission's original proposal in its draft bill was that such cases should be referred to the children's hearings system, about which there were a number of concerns. For example, people were concerned about the possibility of the children's hearing making an order to send a child to a residential establishment. What would that mean? Are we going to lock up young people for having sexual relations, whether consensual—obviously, the cases that we are discussing involve consent—or otherwise?
It is fair to say that under schedule 2 to the bill there is the facility for alternative charges—if, of course, the Crown is disposed to prosecute in the first place—on the basis that one cannot change in an indictment any allegation about what the accused person has done. Interpretation would be a matter for the court and subject to judicial direction.
Could the discretion of the Lord Advocate and the children's reporter in such circumstances square the circle? The bulk of cases in which there was no real concern—beyond the fact that underage sex had taken place—would not go any further. However, in cases in which there were extra elements, such as an age gap or other causes of concern, people could be prosecuted or taken to the children's panel. Would discretion for the prosecution not square the circle in those circumstances?
I agree. Each case would have to be considered according to its circumstances, but if there is genuine consent, no cause for concern and no pattern of behaviour, it is hard to see how it would be in the public interest to prosecute. There might be other cases in which it would be in the public interest to prosecute.
I am concerned by part 4 of the bill, and in particular by the suggestion that neither the option of reporting someone to the children's hearings system nor what is proposed in the bill is ideal. Given that we are talking about a very important group of young people, is it right that the Parliament should legislate when the situation that the legislation would create is not ideal? We may have an opportunity to consider the matter more widely. Children 1st points out in its evidence to the committee that sex before the age of 16 is not the norm—a minority of young people engage actively in sexual activity before the age of 16.
Both the Scottish Law Commission and the Government, in its consideration of the SLC's proposals, have given the issue significant consideration. I am not aware of a better formulation. The formulation in the bill is far better than the legislation down south, which criminalises all sexual activity between older children. That is not helpful. I am not sure that there is a better formulation, as long as we square the circle, as Robert Brown said, through giving the prosecution discretion.
I agree with Sandy Brindley. Prosecution discretion and the guidelines from the Lord Advocate are probably the way to ensure that the approach will work.
Angela Constance has some final catch-all questions.
Ms Brindley said in previous answers that the conviction rate for rape in Scotland is 2.9 per cent. I understand that Rape Crisis Scotland has intimated that the bill's proposals will not change that significantly. What measures would change the conviction rate for rape?
The bill, which represents a welcome tidying up of the law, is important. It is positive that it broadens the definition of rape, particularly to include male victims, but we must be clear about its limitations. It does not look at evidence at all. We are particularly concerned about sexual history and character evidence. As I said, the evaluation puts it beyond doubt that the current legislation fails to protect complainers from such evidence. We still need to give serious consideration to issues of evidence in sexual offence trials. Medical records are increasingly being brought up in such trials. If someone has had a mental health problem in the past and has been on anti-depressants, that is often used to suggest that they are not a reliable witness. We are concerned that women are increasingly deterred from reporting rape because of the use of sexual history evidence and medical records. We must consider such issues, which cause us grave concern.
Is the bill the place to make those changes? What you describe is essentially court practice. Does that require action elsewhere or could the issues be addressed in the bill?
I would be reluctant to suggest that sexual history and character evidence should be dealt with in the bill, because in Scotland we have now tried twice to legislate on the matter and we have failed. We should not try quickly to resolve the problem as the matter requires serious consideration.
We are concerned about the prior consent issue, and we are also concerned about expanding the definition of violence or threat of violence. We need to concentrate on what is going on. I defer to Sandy Brindley's superior knowledge of which legislative provisions should be considered, but I echo her comments on the attempts that have been made so far to deal with character evidence. Unfortunately, the legislation has not worked. That is a shame, because there is nothing to prevent it from working. Perhaps the committee will investigate that further.
Thank you for your evidence this morning. We are dealing with sensitive matters that are also difficult and complex. Issues of human behaviour will always be difficult and complex, but your evidence has been welcome and useful. Thank you.
Meeting suspended.
On resuming—
The second panel of witnesses is from Victim Support Scotland. I welcome Susan Gallagher, head of policy and research, and Frida Petersson, policy executive. Thank you for your written submission. The fact that you provided it in advance enables us to move straight to questioning, which will be led by Nigel Don.
Good morning, ladies. Thank you for waiting patiently. I hope that we will continue to get an appropriate balance between the sensitivity of the subject and the robust debate that we recognise we need, because this is difficult stuff.
Although we accept that the penis is a sexual organ, we do not accept that that fact alone adds another dimension of severity to the attack. Along with Children 1st, we question the distinction that is made between vaginal, anal and oral penetration and ask how the separation has been made. In our experience, victims experience the same distress and psychological impact regardless of what is used to penetrate. In some situations, the victim might not even know what is used. That is the case if, for example, a blindfold is used, or the victim is in such a position that they cannot see the attacker.
Do you agree that everything that you wish to be considered as criminal is covered by sections 1 and 2, and that your concern is more about where those offences are put and how they are described?
Yes.
One of the defences that has been used by those who drafted the bill—the people who put the words together—is that some overlap or uncertainty is almost inevitable. The analogy that springs to my mind comes from sailing. It is easy for someone to say that they are sailing on the sea, or up a river, but it is relatively difficult for them to say at what point they penetrate the river. Sometimes it is pretty obvious, but the precise location of the mouth of a river can be uncertain. Without wishing to overdo it, I suggest that that describes some of the relevant body parts. If it is not known in court, as a matter of fact, quite what happened, some uncertainty and overlap in the law is surely useful. Is there a particular value in segmenting the various offences in that regard?
We understand that comment, and a case may be heard under either section 1 or section 2, but it would usually be known whether there had been penetration. We believe that it would be more difficult to know what was used to penetrate. Therefore, it would be beneficial to have all penetrative acts under one section.
If we accept that everything is covered by sections 1 and 2, and that the maximum penalty is the same for offences under sections 1 and 2, then why worry, why distinguish and why fret about it? In section 1, we have simply codified the law of what we have historically called rape. We have covered absolutely everything else that we want to worry about as sexual assault in section 2. Why is it an issue? I understand that it is, but I would like to clarify why you feel that it is an issue. It seems to be only a matter of words.
We do not want to make a judgment that all non-penetrative acts are necessarily less serious. However, we would like the law to distinguish between penetrative and non-penetrative acts and we would like such acts not to be assembled in the same section, as they are currently, as sexual offences, in section 2. We listened to our colleagues from Rape Crisis Scotland and Scottish Women's Aid speaking earlier, and they suggested an alternative, particular crime of penetration by objects being specified. We would be quite happy with that, too.
I have some slight difficulty with what you are suggesting. Some years ago, there was an appalling case in Aberdeen, in which a man inserted a police baton into a woman's vagina. That was an appalling offence. Suppose that that offence had been carried out by a woman: would you define that as rape?
Under our definition, yes. Our definition would make the crime completely gender neutral, which would have the effect that women, too, could be convicted of rape.
Fine.
Your submission suggests that the law should be changed so that the crime of rape might be committed when a person forces their tongue into a victim's mouth. Is there a danger that that could be seen to downgrade the crime of rape? Would juries be willing to convict a person of rape in such circumstances?
Absolutely. We acknowledge that oral penetration both with body parts other than the penis and with objects is an extremely difficult area of consideration. We thought long and hard about whether to recommend that it be included in section 1. We decided to do so because it is covered under section 2 on sexual assault. We have simply suggested moving the offence into section 1. The danger that you mention exists, but the range of penalties that is available under section 1 would enable the severity of the act to be mirrored.
Do you have anything to add, Ms Gallagher?
I concur with what Ms Petersson said.
Does Victim Support Scotland think that there is a role for an offence of sexual assault by penetration that is different from rape and non-penetrative sexual assault?
We do not see a need for such an offence.
We turn to the issue of consent and reasonable belief.
I think that you heard some of the previous witnesses' evidence on a difficult area. You take issue with the bill's definition of consent as "free agreement". Will you elaborate on that? In your submission, you suggest that
We are happy to see the introduction of the reasonable belief provision, whereby the accused must have had reasonable belief that the victim consented to the act. It would be interesting to consider what different steps the accused took to ascertain that there was consent. That is what we are referring to—the steps that were taken, which are mentioned in section 12 on reasonable belief. Section 12 states that it is important to establish what steps the accused took to ascertain that there was consent to the act.
Is that not a different aspect of consent, which the bill deals with quite adequately in section 12, which objectifies the issue?
Yes. We are happy with that section.
So what would be the advantage of extending the definition of "free agreement" in section 9?
We believe that the issue is covered—we are quite happy with the definition in the bill and the steps that the accused must take to ascertain that the other person has given consent.
So you are not seeking a change in the terms of section 9, notwithstanding what you said in your submission.
No. We are happy with the bill.
Okay.
Yes. It is important that we stress that the list is a non-exhaustive statutory list and that it is not a complete checklist of situations in which consent is not given. It is important that it is stated in the bill that the list is non-exhaustive and that if a situation that arises is not on the list, it could still be the case that consent was not given.
Section 10(1) says:
We just think that it should be stressed further that the list is non-exhaustive, to ensure that the meaning behind it is taken into account when the bill is used in court. We are quite happy with the general idea of the introduction of a non-exhaustive list and the fact that when the Crown has established that one of the situations that are listed has occurred, it will have proved lack of consent.
As we touched on before, this issue is tricky to pin down. When people go out, they may over the course of the evening move from being sober to being more or less drunk or more or less incapable of giving consent afresh. We are dealing with human circumstances that may be difficult to establish in situations that come before a jury. What is your position on prior consent that is given at an early stage? I refer to instances in which people go out on the understanding that they will end up in a sexual situation, but one of the parties gets drunk during the evening and is not capable of giving consent anew. People could be landed with a serious criminal offence. Is the proposition that, unless there is a specific further agreement, we are dealing with a crime of rape?
Yes. We wish to remove the possibility of prior consent. Only consent that is given at the time when the sexual act takes place should be valid. That would take away the worry about whether consent must be renewed and when it must be withdrawn.
It would, but would it not cause a considerable hiatus, given that criminal statutes are normally to be construed strictly? If people were convicted in the circumstances that you describe, they could go to jail for a long time. Are we not getting away from the reality of human behaviour in some sexual situations?
We are dealing with very difficult situations. The bill states that consent can be withdrawn at any time—we believe that it should be possible for a person to withdraw consent. It is suggested that someone who is asleep or unconscious is incapable of doing that. The policy memorandum states:
Is that not a slightly overanalytical approach to the matter, given that people do not sign written documents in this context? Will not having prior consent not land us in as many problems as having it would?
We do not see the benefit of prior consent. We believe that it takes away some of a person's sexual autonomy and her ability to change her mind. It is up to the person to consent or not at the time when sexual activity takes place.
We are dealing not with situations in which someone has changed their mind, but with situations in which nothing is said.
The onus must be on the accused to demonstrate what reasonable steps they took to ensure that consent was given.
Or that consent still exists.
Your evidence on this provision is very strong. You may want to suggest a form of words to amend the bill. If a woman agrees at 6 o'clock at night—in company, within the hearing of others—to have sex with someone but withdraws consent later in the evening, could that be a defence for the accused under the bill as drafted?
We wish to remove the notion of prior consent. In our view, it could be used as a defence under the bill as drafted, which we find extremely problematic. It contradicts the possibility of the victim withdrawing consent.
I think that the committee would be keen to hear any further suggestions from Victim Support Scotland on this issue.
It is very problematic. That is the reality. It must be based on a reasonableness in the context of the particular relationship and what goes on in that relationship generally. We would state categorically that, if what goes on between a man and a woman as part of normal practice includes a threat of violence or attack against the woman and she has not given her consent, it could be a problem if the law offered a justification for what happened.
Let us assume that the provision on prior consent was removed from the bill. With the rape definition under section 1, we would still be left with an issue about consent or reasonable belief that the other party had consented. Would there not still be an issue that prior consent could be part of the circumstances that led to A having a reasonable belief that B had consented? The thing must be dealt with one way or the other, either by the interpretation of judges and juries or in the legislation.
I see your argument, but we do not believe that the one issue has to do with the other. It is difficult to pinpoint what reasonable belief would be, but we do not believe that it has to do with prior consent.
Surely, reasonable belief could be the fact that there had been an indication of consent at an earlier stage, such as in the circumstances that Cathie Craigie mentioned.
But that does not categorically have to be prior consent.
I take that point. Would it be preferable to have the greater uncertainty of the general definition without the specific reference to prior consent?
Yes.
I think that we would be interested to receive any further thoughts that Victim Support Scotland has on that very complex and difficult issue.
It is a difficult matter. As I said earlier, we come down to human behaviour and human relationships. Sometimes, one has great difficulty in codifying law under those headings.
Victim Support Scotland's written submission suggests that there is too great a disparity between the penalties, on the one hand, for rape or rape of a young child and, on the other, for the crime of having intercourse with an older child. The submission suggests that such crimes should be prosecuted only in the High Court. Can you provide some background on how you reached that conclusion?
The crimes of rape and of rape of a young child can be prosecuted only in the High Court, whereas the crime of having intercourse with an older child can be prosecuted in a summary court, which has a lower range of penalties available to it. We believe that there is too big a disparity between how cases would be dealt with depending on the age of the victim. We believe that having intercourse with an older child should still be seen as a very serious crime. We should show victims aged 13 to 15 that we take such crimes seriously. We should show the general public that offences involving that age group do not fall in a gap between rape and rape of a young child. We should not grade the severity of the attack based on the age of the victim. There is nothing to say that an older child will have a lesser or better reaction to a sexual offence than a younger child. Therefore, we do not agree that there should be a big gap between offences involving a 12-year-old and those that involve a 13-year-old.
So the issue that has been raised involves the rights of the victim as well as the sentencing tariffs that are available only in the High Court.
We believe that such victims should have the right to have access to the same penalties as would apply in the case of younger victims and in the case of offences under section 1. Those who are aged 13, 14 or 15 do not have access to the same penalties, because their case can also be heard in a summary court.
I share your concerns, but there may be issues to do with whether activities have been wholly consensual. Have you raised that matter?
With regard to older children? No. We have not commented on that.
Would you summarise your position? You are not suggesting that someone aged 16 years and one month who has had consensual sexual intercourse with a girl aged 15 years and 11 months, for example, should be indicted in the High Court.
No.
That is clear. Thank you.
Meeting suspended.
On resuming—
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