Rape and Sexual Offences
The next item of business is a debate on motion S3M-1490, in the name of Kenny MacAskill, on the Scottish Law Commission's report on rape and sexual offences.
The Lord Advocate (Elish Angiolini):
The Parliament will be aware that the First Minister announced last year that the Scottish Government will bring forward legislation in the light of the Scottish Law Commission's proposals on the law on rape and sexual offences. The proposals are currently the subject of consultation, and today's debate provides a valuable opportunity both to discuss them and to set them in context.
The commission's proposals arise from a background of considerable public, professional and academic concern that the law on rape is unclear and is too narrowly drawn, and that conviction rates for rape in Scotland are significantly lower than those for other areas of criminality and those in other countries.
I welcome the commission's report. The reforms that it proposes are modern responses to sexual crime. They include widening the definition of rape, clarifying the coverage of protective offences regarding children and providing a range of new offences regarding coercion.
I am pleased that the proposals seek to address the role that society's attitudes towards complainers play in the decision-making process. Published research has shown that sections of the community continue to blame complainers for the sexual crimes that have been committed against them when they have acted in a flirtatious manner, worn revealing clothing or consumed alcohol. We must be clear. The indication is not that society thinks that it is unwise of women to do those things but that, when those factors are present, a significant section of society is prepared to blame the victim, not for the way in which she acted but for the crime that was perpetrated against her. For as long as society is prepared to blame the victim, we cannot begin to hope that it will blame the perpetrator, whatever the law may say.
Will the Lord Advocate take an intervention on that point?
I have a great deal to say. I will take the member's point later.
The Scottish Law Commission's proposals seek to challenge existing norms by creating a greater focus on the responsibility of the accused to demonstrate what steps they took to establish that there was consent and by proposing statutory indicators of situations in which consent will not apply. Those important proposals suggest one means of mitigating the impact of unfair value judgments about the complainer.
I will take Ms Smith's point now.
I apologise—I have to attend a meeting and so I cannot contribute to the debate.
Does the Lord Advocate agree that the rape of women by men is an act of violence and the abuse of power and that it is predicated on women's subordination in society and on discrimination? How can attitudes be changed alongside the legal changes that have been proposed? In particular, will the Lord Advocate consider the need to prosecute men who buy sex from trafficked women, as they are in fact raping them?
The answer to the first question is clear. Sexual offending tends to be the exploitation of power. It is about the abuse of power in relation to the victims, be they female or male. In most cases that are reported, they are female, but there are also many exploitative abusers of young boys and men in society.
I notice that a party of schoolchildren is coming into the chamber, Presiding Officer. The nature of the subject matter is such that it might not be appropriate for them to hear certain things that are to come in my speech.
I will consider that while you continue, if I may.
On Ms Smith's point about those who have been trafficked, in circumstances where someone has been abducted and there is clear evidence that there is an absence of will or consent, the offence would amount to rape. The question is one of proof and one of degree in fact and circumstance. The matter would have to be considered exceptionally carefully, however, to ensure that such evidence was available. In such cases, it is a matter of proof and the extent of the absence of free will or consent. I am sure that the matter will be raised later in the debate.
Further to that point—
I will take Ms MacDonald's point later.
The commission's proposal is important and the Parliament must consider it with great care.
Equally important is the commission's proposal to define consent as free agreement. Ms Smith's point is important in that regard. It might not sound a startling proposition to state that consent must be based on reasonable belief, but it is a significant change from the current position in law, which is that a defence of consent requires an honest belief by the accused regardless of how reasonable or otherwise that belief is.
I have stated on numerous occasions—most recently at a conference this week—that we operate within one of the most restrictive legal frameworks in the world. I was reported in the media yesterday as suggesting that our laws on rape are the worst in the world. Let me be clear. My view has been and remains that profound reforms to the law of rape in Scotland have already been achieved by our courts. A testament to that is the appeal court decision in 2001 that provided the current definition of rape—a definition that recognises a woman's absolute right to sexual autonomy.
In giving his opinion, the then Lord Justice General, Lord Cullen, set a clear vision of what the law should seek to protect. He said:
"It may be said with considerable force that it should seek to protect a woman against the invasion of her privacy by sexual intercourse, that is to say where that takes place without her consent. What happens with her consent on one occasion should not determine what is acceptable on another. In the present day, in which there is considerable sexual freedom, both in and out of marriage, should the law of rape not support the principle that whether there is to be sexual intercourse should depend on whether the woman consents, wherever and whenever she pleases?"
The power of the courts alone to effect comprehensive law reform is limited, and the pace of change is slow. The courts cannot bridge dramatic gaps in law, which are more properly for the legislature to address, and neither can incremental, case-by-case change effect wholesale law reform. However, I am in no doubt that the decisions of the courts in Scotland have set a clear vision of what the law of rape should seek to protect and have signalled the need for a new era of enlightenment in the Scottish legal system's response to rape.
At present, we have one of the most restricted definitions of rape in the western world. In my view, we cannot provide a modern response to rape when the law that defines it does not recognise as rape a multitude of sexually invasive and degrading acts that are perpetrated against women and men without their consent. The result is that comparisons of conviction rates throughout Europe appear to reflect poorly on conviction rates in Scotland, but they are fundamentally misleading. A wide range of sexual offences are defined as rape in other jurisdictions, but the definition in Scotland represents only a narrow and particular aspect of criminal conduct.
The commission's proposals bring into prospect laws in Scotland that recognise as rape the wider forms of sexual abuse that other jurisdictions have recognised as rape for decades. Widening the definition to include anal and oral penetration by the penis and recognising for the first time male rape, as opposed to the common-law offence of sodomy, will bring Scotland into line with England and Wales and many other jurisdictions in the world.
The Parliament will wish to consider whether the definition of rape should be broader still. In some jurisdictions, the definition is not restricted to penetration by the penis but includes penetration of the vagina and the anus using other objects. As a prosecutor, I have seen cases involving the most brutal and humiliating violation of women and men caused by the forced insertion of implements. Although such acts are not classed as rape in Scotland, they involve the most violent forms of sexual violation. In reforming the law on rape, the Parliament needs to consider to what extent it should encompass the most serious forms of sexual violation in all their guises.
However, we must be clear that no single factor prevails in Scotland to affect the rates of attrition and conviction. Many variables interact to determine our collective success in responding to rape, which is by its nature a difficult aspect of criminality to prove. It takes place in private, there are rarely any injuries, and in many circumstances both the complainer and the accused are intoxicated.
The report marks the start of important and appropriate reforms of the substantive law. However, the substantive law is only one part of the equation because, as we know, the principal feature of our legal system in Scotland, which sets us apart from every other jurisdiction in the western world, is the requirement for corroboration. Despite the storm that I might have created with my speech earlier this week, which will be in the Scottish Parliament information centre today, members will be pleased and relieved to hear that I am a firm fan of the concept of corroboration in Scots law. However, I consider that it is necessary to examine its impact and to understand and analyse the effect that it has in the area of rape and other sexual offences, and I am therefore pleased that the Cabinet Secretary for Justice has now asked the Scottish Law Commission to examine the law of evidence, including corroboration.
When applied to crimes that happen almost exclusively in private, the rule requiring corroboration in Scotland sets a significant hurdle for the prosecutor to overcome before even contemplating a prosecution. We know that almost one third of all reports received from the police are marked for no proceedings at the outset. The most common reason for not proceeding is insufficiency of evidence in law to prosecute.
I look forward to the results of the Scottish Law Commission's review of the Moorov doctrine, and acknowledge that the concession that it makes to the requirement for corroboration is crucial, but it is limited and does not yet recognise that, in many cases where a perpetrator preys on multiple complainers, he does so in a family setting and sometimes for several generations, spanning a period of 20 to 30 years. That aspect of corroboration and the relief against it should be considered by the commission and the community at large. It is not for me as a prosecutor to move the goalposts for the law of evidence. That would be entirely inappropriate, disproportionate and unfair.
Any move to remove the requirement for corroboration would be controversial and rightly so. The requirement might be regarded as a substantial challenge for the prosecutor, but it is equally regarded as an important safeguard for the accused, ensuring that where convictions are achieved in Scotland, they are secure and resilient to challenge. Any alteration would need to be considered with the greatest caution, but if we are serious about reforming the law in this area, the question is at the heart of the debate and we cannot avoid it. If we are to retain the requirement, we, as a community, must be satisfied that it continues to serve an important function in our legal system, and Parliament and the community need to acknowledge and accept that it will inevitably continue to limit the number of cases that can be considered for prosecution and lead to a conviction. That debate is for the future, once we have the benefit of the commission's proposals for reform of the law of evidence.
Although it is essential that the substantive law and the laws of evidence provide us with a sound framework, we must never lose sight of the importance of the work that we in the justice system and beyond must undertake to improve our collective response to rape.
Within the Crown Office and Procurator Fiscal Service, we are working hard to implement the 50 recommendations for change to the way in which we respond to sexual crime that I announced to the Parliament in 2006. That work will ensure that by summer 2009, only prosecutors who have been trained and approved according to the highest standards of competence will undertake the investigation of sexual crimes. Dorothy Bain QC, one of Scotland's most senior and skilled prosecutors, has agreed to work closely with police and prosecution staff as part of the procurator fiscal's Lothian and Borders area sexual offences team, with links to the Amethyst Centre. As the specialist prosecutor for the Lothian and Borders team, she will ensure that investigations in serious sexual offence cases are, from their earliest stages, informed by the experience of those who prosecute in the High Court. She will also make recommendations to the Solicitor General and me on how to build on the recommendations of the review by identifying what further role Crown counsel might play in the model of specialism that we are developing.
The Parliament is now charged with scrutinising proposals to reform the substantive law. We have an unprecedented opportunity to determine what the law of rape and sexual offences should seek to protect. As the Parliament moves to scrutinise the proposals, it is critical that the experience and expertise of all those who deal with these matters, including the defence, the judiciary, and those representing victims of sexual crime, are involved and inform the decisions that are taken.
If we are to effect real and profound change in the law, we must ensure that what we do now is right. If we move to redefine the law of sexual offences in its entirety, we must be certain beyond reasonable doubt that we are making change for the better. The approach must be considered, rational and modern.
I warmly welcome the opportunity to debate how we can best improve the Scottish legal system's response to rape and other sexual offences. I hope that many debates will take place as a result of these proposals and that they will be wide-ranging, balanced and outward looking and, most of all, will remain focused on improving our response as a society to those who experience rape and other sexual crimes, while always maintaining a fair system of prosecution for those accused of sexual crime.
I move,
That the Parliament welcomes the publication of the Scottish Law Commission's final report on the law on rape and other sexual offences and supports the Scottish Government's announcement that it will bring forward legislation to reform the law on rape and sexual offences in light of the consultation on the commission's findings and proposed draft bill to ensure that Scotland has a modern and robust framework of laws in this area.
Labour welcomes the long-awaited report from the Scottish Law Commission on the reform of rape and sexual offences law. The report is good and we thank the commission for its hard work on a difficult job. I believe that the commissioner, Gerry Maher, is in the gallery and I welcome him to the debate.
The Labour amendment calls for adequate time to scrutinise the bill when it is published. As the Lord Advocate said in her excellent speech, the report deals with complex legal issues and, as it took the commission about three years to make its proposals, the Parliament should have enough time to scrutinise their complexities.
Whatever else I say this morning, it will not be as important as what we do about changing the attitude of the public to women who are raped. Rape is an abhorrent crime, and it is part of the continuum of violence against women. It is tried in our highest court and I hope that there is a commitment that it always will be.
We know that juries can be reluctant to convict in cases in which alcohol has been consumed by both parties, or where a degree of intimacy has already been established. There are so many cases like that in our High Court, but the old adage still applies. When a woman clearly says no to sex, she means no, and no matter how intimate she has been with the accused, the fact that she has had too much to drink should not make any difference; the law should protect her. When she is so drunk that advantage can be taken of her state, there can be no consent to sex, even if her state is self-induced. I commend Rape Crisis Scotland for the work that it has done, because it is so important to tackle public attitudes to this abhorrent crime.
I preface my remarks by saying that mine will not be Labour's last word on every point. There is a lot to think about so I regard my speech as expressing our opening views.
Labour has no difficulty with supporting the report's proposal to broaden the definition of rape to include men or women who are raped; we will welcome that change to the law, and we are content that other forms of unwanted physical penetration should also be defined as a crime. We are also broadly happy that there should be a separate definition of sexual assault, notwithstanding the Lord Advocate's comments this morning. Sentencing should continue to be appropriate to the circumstances of both crimes.
The Scottish Law Commission's remit was primarily to resolve the issue of consent in rape cases, although it had a wider remit to do other things. Labour is a bit concerned that the commission's proposal to change the law as it relates to children and to cut to 13 the age in respect of what is, in effect, statutory rape might send out the wrong message. I simply say that we want to discuss that issue further.
On consent, the concept of free agreement seems to be clear cut and to strike the right balance. It is a phrase that the public can understand. In rape cases, it is crucial that the law is clear. We need to think about the ordinary person sitting on the jury and what they will commonly understand by the term "consent", so I welcome the commission's suggestion.
This week, the Parliament and press have had a lot of debate about Scotland's low conviction rate. I agree with the Lord Advocate that we cannot easily compare Scotland with other countries whose systems are not the same as ours. They might use different definitions, and some countries do not have juries, or have a different jury system. I agree that we must see our unique system in the Scottish context and choose the right course for Scotland.
I do not agree that we have the worst system in the world, although it needs to be substantively reformed. It would be wrong not to acknowledge the strengths in our system. There are mixed views about the use of the section 275 procedure, under which a judge decides whether evidence on sexual history or character can be allowed. On the one hand, defence lawyers say that they cannot get the relevant evidence into court, even when they think that that prejudices their client. On the other hand, Rape Crisis Scotland believes that judges are allowing all such evidence regardless of whether it is relevant. We have to get to the bottom of that issue, because the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 was well intentioned and was meant to be used to the victim's advantage. I call for an examination of the section 275 procedure before we make a final judgment on whether it does what we intended it to do.
The Vulnerable Witnesses (Scotland) Act 2004 is important in rape trials. We removed the right of the accused to conduct their own defence, which was another important step in handling rape cases. A jury can convict with a minimum of eight jurors, and a life sentence can be imposed, so there are some important aspects of our current law.
Given the number of cases that we decide to prosecute, it appears that perhaps not enough result in a conviction. That seems to be a concern, but we should start by getting the law right, not by saying that our conviction rates are wrong. Rape is an unusual crime, as the Lord Advocate has said, in that there tends not to be a witness and, until the evidence is led, the jury does not know whether a crime has been committed. In most cases, the outcome of the case turns entirely on the question whether the sexual act was consented to.
Whom the members of a jury believe is the determining fact in ascertaining whether a crime has been committed—that is the fundamental issue that we must address alongside reform of the law. We must be sure that we interrogate the system in the context of such facts. We need to know where the problem in getting a conviction lies. The view now is that a change in the law will provide clarity, but it will not necessarily affect conviction rates. As we redefine the crime of rape to include other things, the conviction rate for rape might increase, but the overall conviction rate for sexual crime will not alter a great deal. As I have said, the law must be clearer to understand, because when juries are making their determination, it is important that they believe that the law is clear for them to apply.
I am glad that the Lord Advocate has addressed some of the issues that were raised in the press yesterday about the law of corroboration. She said that if we are serious about reforming the law, the rules of corroboration must be examined. I would be grateful if the Cabinet Secretary for Justice would clarify when he agreed to examine the issue of corroboration and where it is going, because I do not recall any announcement on it. I am aware that reference was made to the Moorov doctrine, but not to corroboration.
Corroboration is a unique concept in Scots law. The fact that two sources of evidence are required to prove an offence is an important safeguard for the accused in our system. I have strong reservations about unpicking a law that fits with the other checks and balances in our system, and it would be controversial to go down the road of watering down that requirement. Although I have no issue with a review of the Moorov doctrine, I have some difficulty with supporting a change in the law on corroboration in rape cases without some proportionate way of ensuring fairness for the accused—I am not clear about how that could be done.
I agree that the application of the concept of honest belief is wholly wrong. Whether the Scottish Law Commission's proposal for a slightly more objective test will be better remains to be seen, but it will have to be scrutinised closely to give us clearer law.
Scrutiny is needed of the proposal on advance consent in cases in which a couple have previously agreed to have sex and a question of consent later arises. I have serious concerns about whether the proposal is practical, and it will be an important issue for the Justice Committee to examine when the bill comes before it.
I whole-heartedly welcome this difficult debate about complex issues. It is important that we get the law right—we need clear law—but we cannot rely only on the law; we must tackle attitudes to men and women who are raped, and we must make it as easy as possible for juries to determine how to apply the law. I look forward to the publication of the bill.
I move amendment S3M-1490.1, to insert at end:
"recognises that the proposals from the commission are complex and that it is important for the Parliament to be given every opportunity to interrogate the bill when it is published, and therefore calls on the Scottish Government to aim at an agreement with the Justice Committee on a timetable which gives adequate time to properly scrutinise the bill."
I welcome the debate, which is likely to continue for some months and, indeed, years, because we must get this particular legislation right. I also welcome the exceptionally helpful clarification from the Lord Advocate today, following yesterday's publicity.
I will deal with three principal issues, although there are other important matters—for example, the involvement of children, which Pauline McNeill raised. The three main issues are consent, the extension of the law and the rules of evidence and corroboration.
As we know, rape is a very difficult crime to prove. I sometimes feel—and I know that this view is shared by others—that juries have considerable difficulty in that respect. There was a need to clarify the law following the Lord Advocate's reference in the case of Watt, but the situation is perhaps still not as clear to juries as it might be. The public perception of rape is of a woman who has been forced, possibly as a result of extreme violence or threat of violence, to have sex with an individual. Of course, that is rape, and juries' attitude to that is quite clear. It is easy to make a determination. So-called stranger rape usually results in a conviction, but so-called date rape is much more problematic.
The Scottish Law Commission's report, by including the requirement for consent to be demonstrated, makes that much easier, and it is very helpful. The examples that it cites cannot be exhaustive, nor are they intended to be, but it is a good framework from which to proceed. The Lord Advocate raised the issue of women's risky behaviour, and quite properly so. If I leave my car unlocked with the keys in the ignition, I might be a very silly chap, but it does not entitle someone to steal my car. If a woman goes out scantily dressed, gets drunk and behaves in a flirtatious manner, she might be foolish, but that certainly does not entitle anyone to have sex with her without her consent. The definition of consent will be particularly helpful, and we must examine the way in which consent is measurable, particularly—as the Lord Advocate said—as heavy drinking is involved in so many cases.
The extension to the law is welcome. In these gender-neutral days, we must acknowledge the fact that homosexual rape should be defined simply as homosexual rape, and we will certainly support those changes to the law.
Not for the first time, I listened with considerable interest to the Lord Advocate on the other types of sexual assault that are not at present classified as rape and which certainly skew the statistics on conviction rates—I accept that. My initial argument had been that, providing that a suitable penalty was in place, the definition of the crime did not matter particularly. However, having examined the matter further, I now have some sympathy with what the Lord Advocate has said today and what she has been saying for some time. The Justice Committee and the Parliament will have to consider the issue carefully—the insertion of implements into the anus and other parts of the body is certainly a very brutal assault.
The extension of the definition of rape to include sodomy is entirely appropriate. I ask members to picture the scene of a woman who is alone in a house and is confronted by two intruders who might have broken in for the purpose of assaulting her or purely for the purpose of house breaking, after which they decide to assault her. If that woman is physically beaten and repeatedly sodomised, there can surely be no worse experience that anyone could suffer, yet, as the law stands at the moment, that is not rape. I think that there is a unanimous view among members in the chamber that the law should be extended in that respect.
I turn to the rules of evidence and the requirement for corroboration, which has been a matter of concern. Scots law has long recognised that rape cases are difficult to prove and that many such cases would be downright impossible to prove if the normal standards of corroboration were applied. As such, the law has been clarified and extended over the years, which is entirely appropriate, as it would be difficult to get the corroboration from two eye-witnesses that would be necessary in relation to any other assault.
I fully understand and sympathise with the frustration that prosecutors inevitably feel when cases cannot be proved or even proceeded with at all. However, suggestions—and I note that they do not come from the Lord Advocate—that the law in that respect should be radically changed are fraught with danger. The function of any justice system is, in equal measure, to protect the innocent and to punish the guilty, and we must consider why the requirement for corroboration is viewed as such a vital component of Scots law.
The requirement for corroboration is a bulwark against injustice where false evidence is given. It defends the poor against the rich and the inarticulate against the articulate and, in many cases, it protects society's most disadvantaged, whose ability to give coherent evidence may be limited. Those who suggest that a wholesale change in the law of corroboration is necessary must realise that there would be a real, albeit unintended, consequence: a significant increase in miscarriages of justice would be inevitable. Most members and the general public would be profoundly uncomfortable with that happening. That must be remembered.
I have listened to the arguments about the Moorov doctrine. There is validity in what has been said, which must be carefully considered, and it was not inappropriate for the cabinet secretary to refer the matter back to the commission. Real considerations are involved and there are real arguments to be made. I commit the Conservatives to listening to those arguments exceptionally carefully. Like Pauline McNeill, I would have serious difficulties with a change unless someone suggested additional checks and balances, which would be necessary in our legal system.
The law required clarity, which the Scottish Law Commission's report gives us. It is highly likely that the report will be closely examined, analysed and digested in a complex but interesting and important parliamentary process, and it is highly probable that some of its proposals under the headings that I have mentioned will be changed during that process. That would be appropriate. However, I congratulate the commission on the report, which takes a sound, professional and, above all, reasonable approach that gives us every opportunity to do what we all seek to do: not only to clarify the law, but to support the victims of one of the most horrible crimes that can be committed. I fully commit the Conservatives to giving the matter our fullest earnest and sympathetic consideration.
I welcome the Scottish Law Commission's final report on rape and other sexual offences and the consultation on its findings. The proposed legislation and the on-going review of evidence give us an opportunity to define and redefine new rape and sexual assault offences, to balance the rights of victims and accused people, and to modernise our law in the area in a way that recognises individuals' sexual autonomy and the need to have legislation that gives people equal protection, irrespective of gender or sexual orientation. To do that properly requires time, so we are happy to support the amendment in Pauline McNeill's name.
Scotland has one of the worst conviction rates for rape, notwithstanding the fact that the offence may be too narrowly drawn, that there is widespread underreporting of sexual offences and that the task that the previous Executive set the commission was far from easy. Victims of rape or sexual assault can experience physical, emotional and psychological damage that can last for many years—indeed, it can last a lifetime. For many, the experience of rape is compounded by their experience in the justice system. However, we cannot forget that false accusations that those most despicable of crimes have been committed can also destroy lives.
The fact that more than 1,000 rapes were reported last year alone is shocking. Rape Crisis Scotland has told us that it saw 2,500 victims, but it has estimated that there were actually 7,200 attacks last year, which indicates that the reported total is the tip of a disturbing iceberg.
Rape stands alone in how we as a society denigrate and blame its victims. If a young man is stabbed in the street, we do not hear people say that he asked for it because he had had too much to drink or because he had drifted into a part of town that he did not know well. However, we have heard yet again in the past few days that around a quarter of people think that women are asking to be raped or assaulted if they drink too much, act flirtatiously or wear revealing clothing. Those attitudes need to be challenged. Justice will never be served properly if 25 per cent of a jury think that the victim is to blame before the proceedings go any further and the jury hears evidence and starts its deliberations.
We welcome the work that the Lord Advocate and the Crown Office have already done. We agree that there is a need for enhanced training and guidance for those who are involved throughout the justice system in dealing with rape and sexual offence cases. Also, we welcome the work that is being done by the Association of Chief Police Officers in Scotland to try to standardise the response to rape across the eight police forces. I pay tribute to the great work that our forces have done over the past few years in that area.
Improvements to and clarity in the rules of evidence and the legislation that covers rape and sexual offences must be at the heart of progress. The Lord Advocate has expressed concern that substantive law changes alone are not sufficient to tackle the conviction rate problem. Such comments may be controversial, but they were well made.
There is a need to review issues relating to corroboration, the Moorov rule, the manner in which victims are cross-examined about their character and sexual history, and the use of information about previous convictions. However, such a review must be set against the absolute need for a fair trial. I think that Pauline McNeill and Bill Aitken said that moving away from the requirement for corroboration is fraught with great difficulties, and that doing so might lead to a greater number of miscarriages of justice. We welcome the fact that the Scottish Law Commission is considering Scotland's laws of evidence in prosecuting all offences without losing sight of the peculiar difficulties that are inherent in prosecuting crimes such as rape that are unlikely to be carried out in public and witnessed by others.
There is a great deal to welcome in the draft bill. It is right to try to address the lack of clarity about the key issue of consent, and we welcome the commission's suggested definition of consent as "free agreement". We welcome the fact that an accused will have to justify his belief as a reasonable belief that a woman had consented, and the clear setting out of seven scenarios in which consent is clearly absent, including when victims are intoxicated, is useful. However, we should bear in mind the fact that such a list is clearly not exhaustive or devoid of problems of interpretation.
The commission's recommendations acknowledge that sexual contact without consent should be illegal even if consent for sexual activity has been given on other occasions. I whole-heartedly reject the view that there should be a difference in law between rape by a complete stranger, so-called date rape and sex without mutual consent with an existing partner. The belief that it is somehow less horrific or criminal to force sexual contact on a person against their will because of an existing or previous relationship with them is absurd.
I welcome the widening of the definition of rape so that it will include the oral and anal rape of a woman or a man. Bill Aitken gave one example of why widening the definition is right. Such clarification is an important part of addressing the discriminatory nature of existing laws and brings us into line with England. I agree with the Lord Advocate that the use of an implement against someone can be as horrific as rape. I hope that the Justice Committee will consider that matter in due course.
It is vital that the laws on rape and sexual offences are not only clear to the people of Scotland but relevant to our society. Much of the current legislation was passed when attitudes were very different. Modernisation of the existing legal framework is crucial to ensure not only that our laws do not support prejudice, but that they afford equal protection to men and women. The current laws often mean that there are much lesser penalties for sexual offences against men or boys, for example, although such offences are no less horrific for their victims. The existing law in relation to transsexuals is also unclear, and it uses outdated and offensive terminology in relation to homosexual activity between men. We welcome reform in those areas.
We also welcome the commission's approach in classifying sexual offences laws into three types of law: laws that cover sexual assaults, laws that protect children and other vulnerable people, and laws that protect public morals. We believe that the general direction of the draft bill, which includes the new offences of rape against children and rape against people with a mental disorder, is to be welcomed.
However, there is one particular area of concern. I expect that the Justice Committee will have to work through several issues to do with the proposals relating to older children, aged 13 to 15. I have concerns about what I have read so far. It is essential that we protect our children who are at a particularly vulnerable stage in their sexual and emotional development. We must balance protection and pragmatism, and we must deliver a system of rules that is clear to young people, parents and the police.
As I said previously, many people never come forward to report a rape or other sexual assault. One of the reasons for that is the widespread view that complainers are subjected to gross invasions of their privacy when they give evidence in court. A great deal of public concern remains about that. Despite the fact that the Parliament has already legislated on the issue, in the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002, recent research has shown that seven out of 10 complainers in rape trials are asked about their sexual history or their character. The legislation was meant to protect the complainer's dignity and privacy and—crucially—to ensure that relevant evidence was led.
We appreciate the need to ensure that an accused can mount the best possible defence and receive a fair trial. However, will the minister reassure us that that aspect of the law remains under review and give us his view as to why it continues to be an issue? Is it because the law is defective or because of the way in which the law is being interpreted in situ?
The Liberal Democrats look forward to seeing the consultation responses and the bill in due course. We will work constructively with the Scottish Government and others inside and outside the Parliament on this important and challenging area of criminal justice.
I welcome the final report from the Scottish Law Commission and the commitment from the Scottish Government to bring about much-needed reform of the law on rape and sexual offences. Credit is also due to the previous Executive, which instigated the wide-reaching review in 2004, when some high-profile cases highlighted ambiguities in the Scottish legislation that needed to be tackled quickly.
The statistics on rape and sexual offences make grim reading and serve as a wake-up call to anyone in Scotland who may become complacent about justice, human rights and equality in our modern democracy. The battle has clearly not been won. Given the increased public awareness of the crime of rape, the emergence of victim support services, strong action from women's groups and legal changes to end discriminatory practices, people can be forgiven for having expected to see an increase in the reporting of rape accompanied by a rise in the number of prosecutions and convictions over the past few decades. However, that has been far from the case.
The number of reported rape offences has grown by 230 per cent over the past 20 years, but an increase in reporting has not led to a higher number of cases being prosecuted. Indeed, only approximately 10 per cent of rape reports make it to court—a figure that has been more or less constant over the same period—and the rate of convictions is decreasing. As has been mentioned, the current conviction rate in Scotland is only 3.9 per cent—an all-time low, and one of the lowest rates in Europe. The Scottish courts are clearly failing the victims of rape and other sexual offence crimes.
The proposed sexual offences bill will bring about necessary modernisation of rape and sexual offences legislation. Our country's law does not exist in a vacuum. Legislation on rape and sexual offences has developed in a cultural atmosphere of stereotypes, prejudices, misunderstandings and myths, and the proposed sexual offences bill is a positive step towards the provision of a clearer and more robust legal framework to deal with some of the issues.
I welcome the proposal to create statutory definitions of rape and consent, although questions remain about the detail of how the definitions will be implemented and whether there will be any loopholes. The introduction of a clearer and wider definition of rape and the definition of sexual assault as a crime that is no longer subsumed within the general assault law reflect changes in our thinking and understanding of those crimes. The Law Commission has also identified a shift in emphasis in the wrongfulness of rape from the historical position that it is an attack on a person's honour and value to the view that it is an infringement of a person's physical and sexual autonomy. I welcome those proposed changes to legislation as a reflection of more enlightened thinking. I also welcome the proposed abolition of redundant common-law offences, such as those that refer specifically to homosexuality, as an important modernising step to ensure that equality is enshrined in our law even if it is not yet enshrined in our society.
Although those developments are welcome, many contentious issues still need to be addressed, and I believe that improvements can be made to the proposed bill. Those improvements are vital, as I am far from convinced that the changes that have been proposed to date will be enough to improve significantly Scotland's dismal conviction rate for rape and other sexual offences. The need to re-examine the corroborative evidence that is required for rape cases must be considered. I was pleased to hear that the cabinet secretary has asked the Law Commission to conduct a review of the law of evidence in Scotland. As members have mentioned, that review is complex and controversial, and it will require difficult and far-reaching decisions to be made at its conclusion. Nonetheless, it is important that the issue is pursued.
It is difficult to provide corroborative evidence in cases of rape and other sexual offences and, as the Lord Advocate has restated, Scotland's law is among the most restrictive in the world in such cases. The victims of such crimes often fear that their accusations will be met with scepticism, and in Scotland that scepticism seems to be encoded in law through the need for corroboration. Any changes will, however, require careful consideration.
It is vital that we grasp the opportunity to improve the response of Scotland's judicial system to crimes of rape in other ways. Legislative changes in 2002 that were designed to curb the use of evidence relating to sexual history and character in sexual offence trials have proved to be counterproductive. The Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 was passed with the best of intentions and was widely supported, but there seem to have been unforeseen consequences. As Margaret Smith has mentioned, sexual history evidence now seems to be introduced more frequently in the courts than ever before. Although further legislation in this area may not be the solution, I urge the cabinet secretary to carry out an urgent review into the matter, to determine whether the current legislation is the best way to tackle the problem. We must ensure that our courts do not continue to put women through such a distressing ordeal.
We must be mindful of the fact that changes to legislation are not enough. As Rape Crisis Network Europe confirms,
"legal reform and changes in the investigation and prosecution of rape have had little, if any, impact on convictions".
That is why it is important that work to update the law is accompanied by work to change the confused and prejudiced societal attitudes that remain towards rape and violence against women in all its forms. It is shocking to read that 26 per cent of Scots—men and women—who were surveyed only last year thought that a woman bore some responsibility for being raped if she wore revealing clothing or if she had been flirting. It also does not bode well that a 2005 survey of young people's attitudes found that one in five young men believes that women often provoke violence. I therefore welcome the Scottish Government's announcement of funding for Rape Crisis Scotland to develop a hard-hitting information campaign to tackle those ignorant and destructive attitudes.
The Scottish Government's proposals are a positive step in the right direction, but there is still a lot of work to be done to change public attitudes and secure justice for the victims of these devastating crimes.
I am pleased to take part in this debate on the Scottish Law Commission's report on rape and sexual offences. The report and the first-ever systematic review of the investigation and prosecution of sexual offences in Scotland are landmarks in the modernisation of Scottish law and the way in which those offences are dealt with.
To effect real and lasting change, all parts of the legal system must work together towards a common goal. We are taking part in a massive shift in policy and practice, and I trust that Parliament's scrutiny of the proposed changes will lead to clear and enforceable legislation. As we have heard, Scotland has a most restrictive definition of rape, which makes statistical comparisons difficult and, in some cases, meaningless. What are meaningful, however, are the experiences of victims and the secondary ordeals that they often have in court. There are urgent calls for reform, and the extension of the definition of rape is widely thought to be overdue.
At its excellent conference this week on legal responses to rape, Rape Crisis Scotland's emphasis was on redressing the balance—a balance that is tipped against women, as was recognised in the recent research that showed that a female victim of rape is seen by many to carry a share of the blame because of her behaviour, her way of dress or her drinking.
Although the law may need to be framed so that it is gender neutral as far as possible, it must not be gender blind—society is not. Vulnerable boys and young men must be protected as well as vulnerable girls and young women, but we need to take into account the very attitudes of society that we are striving to change—attitudes that, unfortunately, are held by many people, possibly including members of juries, as well as victims and perpetrators. Sadly, those attitudes, perversely, mean that girls and young women may look up to and trust men who possibly are older and probably are stronger. The breach of such badly placed trust can mean for female victims that, on top of the trauma of rape, they run the risk not just of sexually transmitted infection, but of an almost certainly unwanted pregnancy. Equal opportunities is not about treating everyone in the same way, but about treating them appropriately to their individual circumstances.
Central to the proposed reforms are the essential principles of sexual autonomy and consent, which is defined as "free agreement". That is welcome. Also welcome is the considered, non-exhaustive list of factual situations that define when a person has not consented to sexual activity, including when the person agreed or submitted to the act because he or she was subject to violence or the threat of violence.
Parliamentarians need to consider many difficult and complex questions, such as whether the proposals cover or should cover women who are trafficked for prostitution. I accept that a fine balance must be reached between the gradual approach to change that is necessitated by the peculiar nature of law reform and the understandable impatience of women's groups in particular. However, a vision of a better future needs to be within our grasp.
I commend the poster campaign by Rape Crisis Scotland that depicts women in different scenarios with the caption, "This is not an invitation to rape me". I hope that it can begin to shift the attitudes that are prevalent in our society.
I draw attention to Rape Crisis Scotland's concerns about the report and pick out two areas. First is the idea of advance consent. I question how that squares with being able to withdraw consent. I also question whether free agreement can be possible in a situation of abuse or when the complainer has been trafficked for prostitution. I share Rape Crisis Scotland's concerns. As I have touched on only a few areas from the comprehensive report, I underline that it will take a great deal of time and consideration for all its proposals to be developed properly.
Changes in the law will be no improvement if convictions can be overturned. We need clear and enforceable legislation. However, as has been said, the debate on evidence is still to be developed. Scots law requires corroboration, which the Lord Advocate has described as a significant and often insurmountable hurdle that disallows around a third of reports from going to court. Consideration, at least, needs to be given to the Moorov doctrine to see that justice is served.
The report marks an important stage in a long process of reform of legislation, prosecution practices and support services. I hope that the cabinet secretary will note that continued political leadership is essential and that all areas require to be properly and consistently funded.
Equality is at the heart of what this Parliament stands for, and through its legislative programme the Parliament will change the lives of people in Scotland. The law review was initiated by the previous Administration, and I look forward to ensuring that the original vision is implemented by the new Administration.
First, I declare an interest as a board member of Central Scotland Rape Crisis and Sexual Abuse Centre. I pay tribute to the Parliament's continuing work on rape and sexual abuse. People look to the Parliament as it deals with such issues, and wish it well in its work as it develops. I support the motion and hope that the chamber will support the Labour amendment.
Although members have already highlighted the low conviction rate for crimes of rape, I will concentrate on that appalling record. It is worth saying that less than 4 per cent of cases that go to trial result in a conviction. That is 4 per cent of an already low number of cases that make it to court in the first place.
I am well aware of the member's close interest in such matters, but if he checked the figures he would learn that the conviction rate for the number of cases that go to trial is very much higher than 4 per cent. The last time that I checked, it was in the region of about 40 per cent.
Although I bow to the figure supplied by Bill Aitken, it does not alter what I will say. However, I will check the figures again.
No right-thinking person, whether a judge, policeman, lawyer or politician, should find acceptable or be relaxed about the number of cases and convictions. If the figures related to car thefts, house break-ins or some other crime, there would be a major inquiry and the public would want something to be done about it quickly, so why have we tolerated the rape law situation and why are the public not up in arms?
There are many complex reasons; I will touch on just some of them. Our system of law is out of balance. A rape victim—or a person alleged to have been raped—is almost treated like a person who is guilty of perjury, until the accused has been found to have committed rape.
Smart lawyers—by which I mean clever lawyers—whose job it is to get their client off, are able and willing to bring before the court information about an accuser with the sole purpose of painting a picture that colours the jury's view as to why they are not to be believed. Worse still, the person's sexual habits, dress or views nullify any concept of justice for them. In other words, such lawyers tell the jury, "Look at what she was wearing. She had a good bevvy. She flirted with him and she had sex with more than one man, so she asked for it." Let us consider those points.
"Look at what she was wearing." I challenge members to look at what their female family members and friends, as well as young women throughout Scotland, wear. The hem-lines of their skirts are up to their armpits and their midriffs are bare. That is the fashion. It is how young people dress, whether we like it or not. It is how 75 per cent of our young women dress when they have a night out. Does that mean that 75 per cent of young females, including our family members, are asking to be raped?
"She had a good bevvy." Unfortunately, too many young people, both male and female, drink to get drunk rather than to have a social experience. Whether that is because of peer pressure or because it is cool to get blitzed, I do not know, but it puts them at greater risk from the predators, animals and cowards who seek out the weakest to attack. I fully acknowledge that fact and would like to see the end of that drinking trend. Nonetheless, the courts should offer no refuge or assistance to those who prey on victims. If a woman is paralytic and cannot or does not say no, how can it be judged that she said yes?
It might be said that she had a reputation. She might have had sex with other men, but so what? What does that prove? It proves that she said yes willingly to them; it does not mean that another man is entitled to rape her. It could also be that she said yes to someone with whom she was in a relationship, but the relationship ended. Does that mean that after she said yes once, the answer was yes for ever? Of course not.
If I could give advice to all those concerned, whether the police, the courts or the Parliament, it would be this: our rates for getting rape cases to court and obtaining convictions are, by any definition, appalling in the extreme, and we need to do something about it. We do not need to reinvent the wheel. Models exist that offer total protection and justice for the accused and give them the ability to defend themselves properly, while at the same time offering those who claim to have been raped the sure knowledge that their case will be heard and tried, and that they will be treated fairly and protected from the divulging of private and irrelevant information. Being able to deploy information to play deliberately to the jury's prejudices cannot be right, and it must be changed.
When rape cases afford a proper balance in court between the accuser and the accused, the prosecution and conviction rates in Scotland will rise, and Scotland's justice system will be the winner.
I join the debate because I want clarification on only one point that was reported in the newspapers during the week. The Lord Advocate will be pleased to know that I did not believe a word of what they said about her. However, I believed what I read about Rape Crisis Scotland's suggestion of what should be included in the proposed bill, which disturbed me, although I am not at all disturbed about the introduction of equality into the legislation, which is long overdue. I am interested in how corroboration will be maintained. The Labour Party is absolutely right that more time is needed to consider many aspects of the draft bill.
I want to speak in the debate because I do not believe that it serves any good purpose for Rape Crisis Scotland to suggest that we can tackle the problems that are additional to the ones that are traditionally associated with prostitution by saying that any woman who is trafficked should be considered to be raped. That would confuse several legal concepts.
Margo MacDonald is perhaps suggesting that it would be difficult to say that men who pay for sex unknowingly rape a person. However, I hope that the member acknowledges that, with trafficking, one way in which women are coerced and threatened on a weekly basis is by being raped by the people who possess them. Those folk should be dealt with severely.
I thank the member for that information, of which I am aware—I abhor that situation as much as the member does. However, the same treatment can be meted out to young women who, for example, are groomed prior to leaving care homes. They might come from south of the border or from Dundee. That is what I was referring to. Trying to tackle one problem through a law that is designed to address another is usually flawed. In this case, that approach would be severely flawed. Many cases would fail if they came to court, because they would be wrongfully based.
Although I agree with Rape Crisis Scotland's intentions, I ask it to withdraw its request. I would like an assurance from the Cabinet Secretary for Justice that it will not be considered as part of the proposed bill. That is all that I have to say. I wish the proposed bill well.
I support Pauline McNeill's amendment and all that she said. I welcome the consultation on the draft bill, which is published at the end of the Scottish Law Commission's "Report on Rape and Other Sexual Offences". I am glad that Labour in Scotland led the way in this area of social policy and that Jack McConnell, our then First Minister, set the agenda by directing the Scottish Law Commission
"To examine the law relating to rape and other sexual offences and the evidential requirements for proving such offences and to make recommendations for reform."
The aim of the proposed bill should be not only to amend the way in which the law defines sexual offences and rape, but to make a statement of the proper values that our society holds about the ways in which we regard sexual relationships.
Sexual offences are a worldwide concern. As the Law Commission report states, that is reflected by the fact that countries such as the United States of America, Canada and Australia introduced radical reforms decades ago. More recently, further work has been done on that aspect of social policy in the Australian Capital Territory, Victoria, South Africa and, somewhat closer to home, England and Wales. There is a wealth of information that we can draw on and use to make comparisons.
The debate focuses on the Scottish Law Commission report, which provides a critical opportunity to find out more about the outcomes of recent reviews and to consider whether the proposed legislation is likely to make a significant difference to complainers of sexual offences. That process will highlight the many issues that affect those who give evidence in rape and sexual offence trials and will involve examining different legal strategies for change. We should remember that Labour introduced the Vulnerable Witnesses (Scotland) Act 2004, which provides victims of sexual offences with assistance and protection that were not previously assured to them. I am pleased that the Law Commission report goes into detail on those and many other issues.
I have met victims of rape and sexual offences in my work as a member and have been most concerned to learn of the way in which some victims have been treated, with their lives and conduct, rather than the actions of the accused, being put under the microscope. To get a case as far as the court can be a real challenge. Many issues come to the fore, such as the gathering of evidence and the training of front-line personnel, not to mention the corroboration of evidence and the presence of witnesses, or lack thereof.
In speaking about evidence and training, I have permission to mention the name of my constituent Juanita Berry, who has been mentioned in Parliament before. Juanita was the victim of an attack and rape, but the police surgeon discarded the evidence. Members can imagine how Juanita felt about that. She did not even get near the courts because of that. However, I am pleased that, thereafter, the chief constable in Fife rapidly addressed the guidelines and training, so Juanita's case helped to inform the situation in Fife.
It must be of great concern to us all to note the very low percentage of reports of rape to the police in Scotland that lead to conviction. That has been mentioned. Concerns about the criminal justice response to women who report rape led to the establishment of two major reviews in 2003 and 2004: a review of the investigation and prosecution of rape and sexual offences by the Crown Office and Procurator Fiscal Service, and a review of rape and the criminal law by the Scottish Law Commission, both of which have now reported. The Crown Office and Procurator Fiscal Service is implementing 50 of the recommendations in its review, which will change how rape is prosecuted in Scotland.
Today, we are considering the Scottish Law Commission's draft bill, which aims to reform the law on sexual offences and is out for consultation. When I read the Scottish Law Commission's report, I was impressed that many of the people who responded to the consultation wrote in a private capacity, which perhaps underlines the public strength of feeling on the matter. Against the background of certain high-profile decisions by the High Court of Justiciary, we know that there is powerful concern from the general public as well as from professionals and academics throughout Scotland. However, that said, I am concerned about the sheer scale of the challenge that will confront my colleagues in the Justice Committee, who will in due course be tasked with taking the proposed bill through Parliament. The complexity of the detail and the volume of the concerns are somewhat daunting. It is vital that the time that is allocated for the consideration of the bill be carefully estimated—it would be a further injustice to our constituents if the work was not painstakingly careful.
In that context, our task as parliamentarians is to work with others to provide information on legal developments relating to the responses to rape and other sexual offences. We need to work closely with others who work in social policy and those who work with survivors of sexual violence to develop a greater understanding of the issues that face women who report rape and other sexual offences, with a view to inputting shared concerns into current legal developments.
I was interested to read that the Lord Advocate, in talking about the Crown Office and Procurator Fiscal Service review, said:
"the outcome of the review signals a major reform of the way in which the COPFS approaches the investigation and prosecution of rape and sexual offences."
She continued:
"implementation of the recommendations in the report will provide a sound basis to deliver an improved quality of investigation and prosecution. Our aspiration is to build strong, more compelling cases, while treating victims with the courtesy, respect and sensitivity that they are due."—[Official Report, 14 June 2006; c 26626.]
Pauline McNeill made an important point about the law on the rules of evidence and corroboration. I agree with her on that key issue, which requires further careful consideration. I trust the Lord Advocate—I know that she will consider that important issue carefully, with the best brains in Scotland. I trust my colleagues on the Justice Committee to come to the right recommendations.
The Scottish Law Commission said:
"we have decided not to make any recommendations as to reforming the law of evidence in relation to the offences"
that we are discussing. The commission gave two reasons for its decision, which I support. First, the commission thought that that aspect of the law is
"better suited for reform across the whole spectrum of criminal offences and not solely in the context of sexual offences".
Bill Aitken and Pauline McNeill mentioned that.
Secondly, the commission said that given the timescale for the project,
"the required detailed and thorough analysis"
of topics relating to sexual offences could not be made.
On behalf of my constituents, I thank everyone who was involved in the major and intensive work on the report and the draft bill. Labour thinks that such work is paramount, for the sake of victims of rape and other sexual offences. There is no more profound fear than the fear of such vile acts. Scottish Labour will stand up for the rights of victims of those crimes.
Members will forgive me for saying again that as I am speaking late in the debate I will resist the temptation to repeat what others have said and instead try to address, or expand on, issues that have not been covered as they might have been.
I will make two points. The first, fundamental, point, which I do not think has been mentioned, is that we should be trying to create a legal framework that will minimise the number of violations—the number of acts that we will subsequently decide are offences. We need to be careful when we talk about maximising the number of reports of offences and maximising convictions, although such outcomes are important and will derive from the legal framework that we create. We must bear it in mind that we need a society—and a legal framework within which society operates—in which the number of violations of a sexual nature is minimised.
I know that this cannot happen, but in Utopia we would develop a legal system in which there were no violations and therefore no prosecutions or convictions. We could reduce offending by moving the goalposts; for example, we could quickly reduce the number of speeding offences on our roads, not by eliminating the speed limit but by increasing it to 250mph. Shifting the goalposts does not help, however. If we want to slow people down we must ensure that the speed limit that we set is enforced and that people understand why it exists.
The appropriate legal framework will minimise the number of violations and it will maximise the tendency for victims to report offences and minimise the procedural impediments to achieving justice. It might help our thinking on the matter if we kept in mind that hierarchy.
The Scottish Law Commission's report contains a radical proposal, which would in effect change the balance of proof, so that the law required the accused to demonstrate consent instead of requiring the defendant to prove the absence of consent. I accept that that is a slight overstatement of the case and I am not trying to be too legalistic, but in effect the commission suggests that consent needs to be demonstrated.
My second point is about the definition of consent. The proposed term, "free agreement", does not offer the right way forward. Members will realise that I did my training on the other side of Hadrian's wall. I can still pretty much recite section 1 of the Theft Act 1968, which says:
"A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it".
That definition of theft served pretty well until some folk nicked a painting from a church and subsequently managed to demonstrate to the court that they were only borrowing it. However, the definition would be useful if we had to teach our children the law of theft. Mercifully, we do not have to do so, because by and large people understand the law of theft, so we do not use the legal definition to teach children.
I mention that matter because society must find a way of teaching young people what is and is not sexually acceptable. I do not in any way suggest that such an approach will help in the dreadful cases of serial offenders who have no interest in being taught anything—we know about those people, so that is not my point. However, if we—as parents, lawyers and, in particular, as teachers—are to guide our youngsters and teenagers to an understanding of what is acceptable and, therefore, of what the law on sexual offences says, it would be useful to have a working definition of consent that had value in that context.
The alternative definition of consent that the commission proposed is:
"positive co-operation in act or attitude pursuant to an exercise of free will, involving persons acting freely and voluntarily and with knowledge of the nature of the act in question".
Such a definition might make sense to members and I am sure that it makes sense to lawyers, but I respectfully suggest that it has no street credibility. The definition would not be much use to teachers or parents and would need to be refined. The important point is that it would not be much use to juries, either.
We need a framework of law that minimises the tendency for violations, maximises the tendency to report offences and minimises the impediments to achieving justice in court. To achieve those outcomes the law must be clear, enforceable and—crucially—well understood by the general public.
This is the third time in as many weeks that I have spoken in Parliament on a complex and emotive issue. I welcome the debate, which presents an opportunity for Parliament to begin to tackle a national shame.
Only one other nation in Europe has a conviction rate for rape that is lower than Scotland's. As Shirley-Anne Somerville said—and I think Gil Paterson meant to say—only 3.9 per cent of rapes that are reported to the police result in convictions. Why is that? Has there been analysis of the problem? How many people who report offences are discouraged from proceeding, perhaps because they are told that there is no corroboration or that when they go to court the lawyers will ask them all sorts of questions?
As Bill Aitken said, 40 per cent of cases that go to court result in a conviction, but that is not good enough, either. Why is the conviction rate only 40 per cent? Surely when a procurator fiscal examines a case, he or she considers whether a conviction can be secured. Surely procurators fiscal do not think that only 40 per cent of the cases that they refer will result in convictions; they must be convinced that there will be far more than that. We must find out why such a small percentage of reported cases goes to court and why the conviction rate is only 40 per cent. I do not know whether anyone has carried out such an analysis, which might throw up interesting conclusions.
Has the member considered that the attitudes of juries might determine the matter about which he asks?
I do not doubt that that is part of the problem and I will return to that issue. However, I maintain that analysis should be done in that area.
Progress has been made in some areas. Not long ago people who were accused of sexual offences were allowed to question their alleged victims directly in court. I am thankful that that inappropriate practice was ended by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002—the result of a bill that was introduced by Jim Wallace. My colleague Margaret Smith referred to the 2002 act, as I think did Shirley-Anne Somerville. However, the 2002 act is not working as well as it might. We have all heard of cases in which people have felt intimidated and, indeed, have ended up wrecks as a result of going to court. Margaret Smith has already asked the minister whether he has any comments to make on this issue and whether things can be tightened up.
I greatly welcome the new rape crisis line and the introduction of four new national rape crisis centres, which significantly increase the range of accessible support services for victims. In line with that, there has been a steady rise in reporting of offences from a mere 775 in 1999-2000 to 1123 in 2006-07. Although it is clear that a lot more needs to be done, such increased reporting is surely the first step to securing more convictions.
I agree with a point that was raised not only by Pauline McNeill but by Margo MacDonald in her brief speech. When I was a member of the Justice 1 Committee in the previous session of Parliament, I often felt that we did not spend enough time on some justice issues and that we were always being pushed to reach our conclusions far too quickly. The Justice Committee must be given a considerable amount of time to examine this issue—and if it thinks that it needs more time to examine and reflect on the proposed bill when it is introduced, it will need to be given it. We need to take the time to get things right.
The Scottish Liberal Democrats have long been in favour of a review in this area and welcome the report's findings as a solid basis on which to build. I particularly welcome the recommendations that are aimed at eliminating the so-called grey areas in the current law. A simple tightening of definitions would provide far more clarity on which to build criminal proceedings in our courts, and the adoption of the protective principle and inclusion of non-consent scenarios in law would represent significant steps forward.
Like Pauline McNeill and other members, I echo the Lord Advocate's acknowledgement of the importance of corroboration, which is, after all, a fundamental feature of Scots law. We need to keep a close eye on that to ensure that we do not interfere with it. Moreover, given the report's recommendation that the issue be addressed as a component of criminal law rather than simply used in reference to sexual offences, the matter must be highlighted to ensure that the necessary investigations are carried out within that context. For too long, real improvements in rape conviction rates have been held back by legal technicalities and inadequacies. Now that this opportunity has arisen, we must thoroughly investigate every angle.
I said that I welcome the report's stance on enshrining non-consent scenarios in law. However, some pertinent questions, particularly on the prominent role of alcohol and drugs in the debate, still need to be answered. An issue, for example, that must be examined is the point at which drinking alcohol or taking drugs renders one incapable of making one's own decisions. What is the difference between lost inhibitions and loss of control, and can they be differentiated legally?
Margaret Smith mentioned Scottish Government research that was carried out in 2007, which found that 27 per cent of people thought that a woman was at least partially responsible if she was drunk at the time of an attack. In that respect, I was quite taken by Bill Aitken's image of leaving his keys in his car. His comparison was a good one; after all, no one has the right to take that car. It does not matter how a young lady chooses to dress when she goes out or whether, later on, she is drunk or flirting; no one has the right to attack her.
Marlyn Glen made a good point about consent: what, indeed, is it? A person might very well be quite willing to have sexual relations with another, but that person, whether male or female, might suddenly decide to change the rules and say, "Hang on a minute. I think we should do something different." If, at that point, the first person says, "Wait a minute; I don't like oral sex" but the other person pushes the issue, that is rape.
The law simply cannot afford to be unclear and confusing. Instead, it must provide a robust framework that is fit for the 21st century and which inspires confidence in the justice system—I am sure that the interesting points that Nigel Don raised in that respect will be taken on board. A harrowing truth is that many rape convictions are lost because victims do not come forward in time, or fail to come forward at all. No victim should be dissuaded from coming forward to report such crime because they see the law as being unclear or unsympathetic.
We seek to strike an extremely fine balance: although new convictions cannot be artificially engineered through legislation, we need legislation that secures convictions where appropriate. At the same time, the accused's rights must be protected, but not at the expense of the victim's confidence in the justice system and not if it hinders the course of justice.
I fully support the report's well-measured recommendations, but we must remember that any legislative change must be carefully considered. We support the motion.
Today's debate has been very interesting and informative, and the wider debate, particularly on the law of rape, has also been very well informed. I also welcome the clarification that the Lord Advocate has given this morning of her position, given the reports in yesterday's press that many people have expressed concern about her intervention.
There is no doubt that reform in this area of law is long overdue and, given that academics and practitioners have been critical of the Scots law on rape for many years, we welcome the Scottish Law Commission's report and its conclusions.
The crime figures speak for themselves; indeed, it was partly the publication of the Scottish crime statistics in 2003 that led the previous Scottish Government to order the review. In contrast with recorded crime generally, which had fallen by 5 per cent over the same period, cases of rape and attempted rape had increased by 8 per cent. Moreover, only 10 per cent of reported rapes made it as far as court and, as a number of members have pointed out, the conviction rate in such cases has been extremely low. A series of court cases at about the same time that came in for criticism from legal commentators and the media was another factor in the drive for reform.
The Conservatives therefore agree that the law on sexual offences, particularly rape, needs to be examined to ensure that it is clear, gender neutral and—to quote the Law Society of Scotland—
"free of the various historical and other anomalies which have characterised this area of the law, for the benefit of both the public and those, such as lawyers, judges and juries, applying the law."
I want to pick up on a few issues, particularly consent, that have arisen out of the proposals and this debate. The fact is that redefining this crime, important though it is, will not be sufficient to tackle all the issues that have been raised about the law on, and prosecution of, sexual offences. We need to consider other factors, such as the procedures that are adopted at trial, the law of evidence and the pre-trial procedures. I would be interested to hear the Cabinet Secretary for Justice's views when he winds up.
The essential element of a sexual assault, such as rape, is lack of consent. Under the current law, the consent element of the offence can either be considered as part of the actus rea of rape or as the mens rea, since the Crown must prove that the accused knew that the complainer was not consenting or was reckless about whether or not she consented.
As the McKearney case in 2004 illustrated, the fact that, unfortunately, there has been no legal definition of consent in the context of rape has created a number of problems. The draft criminal code provides that any consent that has been given by a person is to be disregarded if, when consent was given, it was
"induced by force or fear or was otherwise not freely given."
In England, section 74 of the Sexual Offences Act 2003 defines consent such that
"a person consents if he agrees by choice, and has the freedom and capacity to make that choice."
Under the Law Commission's proposals, the concept of consent in rape cases would be clearly defined in statute in two parts. First, there would be a general description of the meaning of consent, or what is called "free agreement". Secondly, there would be a non-exhaustive list of situations, described by the Law Commission as "indicators", in which consent would not exist. I will not rehearse all the situations in which the complainer will not have had the freedom to choose whether to agree to intercourse, but they are broadly similar to those that operate in England and Wales. However, the commission says that they are not so much part of the law of evidence as illustrations of the key element of the offence itself. The list is to be welcomed.
However, I am not convinced that the introduction of the statutory definition of consent will solve all the concerns and problems with regard to rape cases. For example, questions whether the victim has given his or her "true" or "valid" consent will remain, because the line between true consent and mere submission is not always easy to draw.
It has been suggested that it might be preferable to avoid the use of the word "consent" altogether and to focus instead on whether the accused has had sexual intercourse with a person who did not have the freedom or capacity to choose, in the circumstances. Such wording would be similar to section 74 of the 2003 act. Commentators also believe that that would shift the focus of the trial from analysis of the complainer's behaviour to the accused's behaviour.
Discussion is also taking place on whether the legal burden of proof should be moved on to the accused. I am not sure whether that is the intention of the Law Commission's proposals and the issue will certainly require further thought. I am also not sure how such a proposal would fit with the European convention on human rights. Given the complexity of the problems, I welcome Pauline McNeill's amendment, which notes the need for Parliament to properly scrutinise the proposed bill.
I will conclude with a few remarks about the need for better education, about which the Lord Advocate, Bill Aitken, Margaret Smith and several other members talked. The figures from a study by Rape Crisis Scotland of 700 potential rape trial jurors are startling. Forty per cent of the potential jurors felt that women contribute to an attack if they put themselves in a risky situation, such as willingly going home with a man, and 20 per cent believe that women contribute to rape by wearing revealing clothes.
Given such attitudes, it is important that we support the police and anti-rape campaigners, who want to end the blame culture in which many members of the public believe that victims bring on attacks by being drunk, wearing revealing clothing or flirting. Everyone—men and women—must take on more responsibility for understanding what defines consent.
I will just raise an intriguing point. If the way in which the style of dress can be provocative is not to contribute to being attacked—I agree that that is not an invitation to rape—what is the positive side of that negative instruction?
My point is that society needs to be much more widely aware of the matter. People need to understand that simply wearing a certain piece of clothing does not give people a green light.
The issue is not just creating new laws or defining crimes—I agree with the Lord Advocate on that. Rather than undermine key principles of Scots law, we should consider the wider issues of education and public awareness. We are therefore happy to support the Government's motion and the amendment in Pauline McNeill's name.
We have heard several powerful and thoughtful speeches on what—as several members have said—is a very complex area of law. When we analyse the Law Commission's findings, it becomes clear that it has used its experience and knowledge of the subject to reach a comprehensive set of 62 recommendations.
We have highlighted a number of matters, but we should be well aware of the work that the Justice Committee will have to do to interrogate the 62 recommendations. The committee will, for example, have to interrogate carefully the recommendation that the offence of lewd and libidinous behaviour should be abolished and replaced with a more focused approach in legislation, and it will have to ensure that the law officers and the Cabinet Secretary for Justice provide information on that.
We should recognise the crucial role that the Lord Advocate has played in her current post and previously as the Solicitor General for Scotland in modernising practices in the justice system. That modernisation presents many challenges, as the Lord Advocate knows, but she has taken them on. The announcement by Frank Mulholland last month that the Crown Office will form part of a new dedicated sexual offences team in Lothian is an example of not just talking good practice but doing something to put in place good practice that people throughout Scotland will welcome.
At the heart of Labour Party policy are victims' rights and ensuring that the justice system supports victims of crime by modernising the system in respect of rape and sexual offences. We believe that such modernisation will send out the right message not just to victims but to perpetrators that we are willing to stand up to perpetrators' unacceptable actions and to take the issue forward. Like Gil Paterson, Labour members welcome the work of Rape Crisis Scotland and many other organisations that have played a crucial role in supporting victims over the years.
Pauline McNeill talked about providing clarity in the law. We need to ensure that whatever provisions we pass to provide clarity deal with attitudes to sexual assaults and that appropriate resources are in place so that cases can be prepared coherently and effectively. The issues to which the Law Commission's report refers will require practitioners with experience, expertise and back-up, if the proposed legislation is to have an impact.
In June 2004, the then First Minister, Jack McConnell, said:
"it is important that the … Law Commission review cover all aspects of definition and proof in relation to sexual offences, and … in particular … that we maximise people's confidence not only in our courts—and in the sentences and prosecutions that are available to them—but"—
this is the important point that he made—
"in how the system deals with those who report … offences."—[Official Report, 3 June 2004; c 8896-7.]
Will the cabinet secretary ensure that the necessary resources are in place to implement the legislation that the Parliament passes? Our advocates on the front line must be able to deal with the additional responsibilities that are placed on them. That theme was clear from the Justice Committee's recent visit to the Crown Office. For any changes in the justice system, we must both ensure that additional resources are provided and consider reconfiguring resources that are in place.
Members will note that, in the amendment in Pauline McNeill's name, we have called for more time in the timetable. On reflection, and as other members have said, we have in the past not had the full opportunity to interrogate proposed justice legislation. The Law Commission took more than three years to produce its report and its comprehensive set of recommendations, as I said. It is important to do that work justice by interrogating the proposed legislation effectively. The Parliament will have a job in ensuring that that happens, because extending the timetable has always been difficult, despite members' determination.
I reiterate Pauline McNeill's comments about changing the law in relation to children. We need to be clear that changing the law concerns not just how the legislation is implemented, but the message that such legislation sends to society. I ask the justice team to consider that carefully in producing the bill and to give us every opportunity to interrogate that aspect. We say that in a co-operative and constructive manner to ensure that whatever is passed provides absolute clarity.
Pauline McNeill also talked about clarity being provided to juries. I am not sure whether such clarity will be achieved in full, because of the need for expertise, or whether juries will at all stages be completely aware of the legislation. Let us face it—the report contains 62 recommendations. What can we expect of our juries? We need to be clear about that. However, we should ensure that common knowledge can be made available to juries. Perhaps the cabinet secretary will elaborate on that issue, which can be discussed later.
Margaret Smith made a thoughtful and effective speech—I say to her that Labour members give out positive vibes. She drew a good, thoughtful analogy with society's attitudes towards the stabbing of a young man in the street, which amplified the concerns about society's attitudes towards rape victims. Bill Aitken also drew an effective analogy. However, it is not good enough for us to draw such analogies in the Parliament. It would be better in the long run for us to ensure that we do something about the situation. That is the challenge that the Justice Committee will face.
The Law Commission's recommendations and the draft bill that it has produced mean that the Justice Committee has a great deal of work ahead of it. It will have a job to do in interrogating the draft bill, and Labour members will take that process very seriously. As Marlyn Glen said, the proposals for reforming the law on rape and sexual offences are groundbreaking and we look forward to ensuring that that work is brought forward in the Parliament.
The debate has been thoughtful and helpful. We are happy to accept the Labour amendment. Pauline McNeill made the point—which Paul Martin and others echoed—that we have to get the law right. The Lord Advocate started out by saying that we have an opportunity to do that and that we must ensure that what we introduce is fit for purpose.
I echo other members' thanks to all those who have been involved in the process. In particular, I thank the Scottish Law Commission, whose significant work has allowed us to focus and will be the basis for the bill that the Government will introduce. We acknowledge that the Parliament is united in recognising that we have a problem, and we will seek to ensure that our proposals reflect the Parliament's will. We recognise that we are a minority Government but, perhaps more important, we also recognise that the Parliament is not divided on the issue. We are all on the same side, and if there are disputes over technical matters or matters of interpretation, we should seek to work them out rather than come at them from different perspectives.
Shirley-Anne Somerville correctly paid tribute to the previous Executive, and I put on record my thanks to my predecessor, Cathy Jamieson, whose reference of this area to the Scottish Law Commission instigated the review. She now has other responsibilities and is not present to contribute to or hear the debate, but we owe her a debt of thanks for driving the matter further forward.
I will comment on three preliminary issues that came up during the debate—obviously, other matters were raised as well. Members have recognised that we need to take a twin-track approach. This is not simply about changing the law; we must challenge and ultimately change attitudes in Scotland. Many members mentioned that issue, and I will come back to it. We must acknowledge that we should tackle it together, as I said, and the Government will seek to do that.
We recognise that the law in Scotland on sexual offences and a whole array of other matters is not fundamentally bad and has served us well for centuries. However, we need to address a particular problem in relation to rape and sexual offences—the problem is with the cases that are reported but which do not proceed to prosecution and with the ones that proceed to prosecution but which are ultimately unsuccessful. Whether the conviction rate is 4 or 40 per cent, the fact is that, at whatever juncture, we are failing some individuals, and we must seek to change that. That point also came out during the debate.
The Lord Advocate began the debate by acknowledging that problems exist and that we need to tackle attitudes as well as introduce new offences. Margo MacDonald and other members said that, sadly, sometimes juries reflect prejudices that exist in our society. Mike Pringle mentioned the perceptions that individuals have, and Gil Paterson commented on young women dressing attractively and being under the influence of alcohol. No means no—I think that Marlyn Glen and Elaine Smith made that point. No matter what the circumstances are, they do not legitimise rape.
We must challenge underlying attitudes if we are to move forward. The Government has made clear its support for Rape Crisis Scotland, to which many members have paid tribute in the Parliament. I echo those comments.
Elaine Smith, Marlyn Glen and others raised points about the trafficking of women, with which we have a particular problem in Scotland. The difficulty is that we know that something is going on, but we do not know the nature or extent of the problem or, sadly, who the main culprits are. However, the Scottish Crime and Drug Enforcement Agency is addressing the matter and I a had meeting with Vernon Coaker about it. The problem transcends the borders of Scotland and, indeed, the United Kingdom. The solution relies on co-operative working not simply on a pan-UK basis but on a pan-Europe basis, and we will work with the Home Office and with Europol on that.
I tend to take Margo MacDonald's view that simply seeking to bring in one law that relates to a particular issue will not address the more fundamental problem. We have to get to grips with and find out about the trafficking of women, and we are seeking to do that. Whatever perceptions exist in the Parliament about my inability to work with the Home Office, I assure members that we had a warm meeting with Mr Coaker. We made it clear that we support him on the matter and he advised me that he is off to Stockholm and Amsterdam to review the laws on prostitution in those jurisdictions. I have asked him to keep me involved so that we in Scotland can consider any information that comes to light from those cities. I understand that Amsterdam is reviewing its position and considering the notoriety that it has attracted.
The points that members have raised on trafficking are valid, but the solution is not necessarily change to the law on rape. The fundamental problem is that trafficking is an evil crime that is part of the globalised world in which we live, and it needs to be tackled. I undertake to return to the matter.
We have to challenge attitudes. That is why the Government has committed funding to support the Rape Crisis Scotland adverts. As others have said—and as I said earlier—no means no. Simply being under the influence of alcohol and dressed attractively does not legitimise sexual assault or rape in any circumstances.
I rather clumsily intervened on the closing speaker for the Conservative party on the question of judgment as to what is attractive clothing and what is provocative clothing. If clothing is provocative, whom is it designed to provoke and what is it designed to provoke? How do we advise juries until we have decided that question of taste and, perhaps, morality, on which we are bound to differ?
Margo MacDonald will well know the maxim that beauty is in the eye of the beholder: what some perceive to be attractive is viewed as distasteful by others. We must recall that we are dealing with individuals and that people have rights. Obviously, our society has standards and mores. As we have seen with difficulties in one individual's case, people are not allowed to venture forth naked on to our streets and highways. That does not mean that we cannot disagree about what is acceptable or unacceptable, but the statistics are quite clear: there is a problem with a small minority in Scotland—thankfully, it is a small minority, although it is still far too large—who perceive as provocatively dressed a woman who anyone else would describe simply as attractively dressed. That is not acceptable.
Should we not ignore the question whether clothing is attractive or provocative? Those are subjective judgments and different people have different standards, values and mores. That is the problem with Bill Aitken's analogy. Leaving a set of keys in a car is a mistake, but someone choosing to dress in a way that entertains them, that they enjoy or that expresses their sexuality is a good, healthy thing and should not be judged. Should we not ensure that juries are instructed to ignore those matters?
To some extent, those questions are for a different debate on a different day, but Patrick Harvie will find that juries are already instructed to ignore those matters. The problem is that some people in Scotland have an underlying prejudice, whether conscious or subconscious, which we must overcome.
It is clear that we must address the law with regard to consent. As far as the Government and I are concerned, the law has served us well, but there is a particular problem with definitions. We have to ensure that the law on consent is understandable not only to specialist lawyers but to everybody else. That is why there has to be a definition. People serving on juries and everybody else should have some understanding of the law.
Some areas of law will always be too complex for anyone but specialist lawyers to understand, such as information technology, media or construction law. However, some fundamental parts of the law should be clear. We have to ensure that our whole population—whether legally qualified or otherwise—understand the basis of consent and that simply being dressed a certain way does not constitute giving consent. Other problems arise when someone has not specifically said no because they are afraid or intimidated. All those matters have to be clarified.
Pauline McNeill was correct to raise the issue of how we deal with children and the under-16s, to which the report referred. We want to discuss that issue in the Parliament. We are happy to bring proposals before the Justice Committee and the whole Parliament and to see them through. I reiterate that the Law Commission has made it clear that the under-13s have no ability to consent and that any sexual relationship with them is entirely unacceptable; that always has been and always will be the case. It remains entirely unacceptable for males aged over 16 to seek a relationship with those aged between 13 and 16, except in the circumstances in which the male believed, or was misinformed, that the younger person was over 16.
However, we have to consider the situation, to which Margaret Smith referred, in which a 15-year-old boy has a sexual relationship with a 15-year-old girl. Do we criminalise that? Should a sheriff fine the boy? Should a fines enforcement officer deduct the fine from his pocket money? We are abolishing unruly certificates, so we are not going to send him to Saughton. However, as Paul Martin and Pauline McNeill said, that does not mean that we as a society should send the message that such behaviour is acceptable. We have to recognise that there are particular problems that we as a Parliament will have to address. The Law Commission has suggested that such cases should go to the children's panel. The individuals involved might be beyond parental control, or they might be deeply troubled and require to go to a residential home. In some circumstances, they might even require to go to a secure residential unit. The Government is genuinely open minded about how to address such problems, which the whole Parliament must discuss. We are happy to engage in such discussion.
We must recognise that there is a dichotomy in relation to the law of corroboration. The Law Commission is considering the Moorov principle, about which issues were raised after the World's End trial.
Has the minister referred the specific issue of corroboration to the Scottish Law Commission? If so, when did he do so? I would like him to clear up the matter. I am talking about corroboration, not Moorov.
The member will be aware that after the World's End trial, we considered a variety of matters, including the Crown's right of appeal, evidence of past bad character and the Moorov principle, which relates to corroboration. The Law Commission has long-term plans to consider corroboration. We have asked it to ensure that it considers the Moorov principle. It has indicated that it thinks that Moorov should not be considered only in relation to sexual offences, because it can apply in cases in which people steal cars or break into houses. It is correct to say that we should review Moorov in the context of the entire law of corroboration, not simply the law of corroboration as it relates to sexual offences. I hope that the commission will report on its findings on Moorov either later this year or next year. I certainly undertake to write to Pauline McNeill about the timescales involved.
If we are going to retain fundamental parts of the law of corroboration, we should remember that that will always mean that we are not capable of bringing proceedings against or convicting certain people. We have to set the calibration and strike a balance in that regard. I believe that corroboration is fundamental to the law of Scotland, although it will have to change as times move on. However, there will always be instances when we have good reason to believe that there has been a miscarriage of justice. I refer not only to occasions when the innocent are convicted, to which Mike Pringle referred, but to instances when the necessary evidence is not brought against those who should be living in black burning shame. We have to ensure that we get the balance right.
On the point that Paul Martin and Helen Eadie raised, the fundamental issue is how we treat victims of these heinous offences. The law has to ensure that they are treated with dignity and compassion. The Crown is moving matters on through work on the victim notification scheme, for example. That principle remains enshrined.