Sexual Offences (Scotland) Bill
The next item of business is a debate on motion S3M-4057, in the name of Kenny MacAskill, on the Sexual Offences (Scotland) Bill. Because we are running a bit behind schedule, I will cut one minute off the time that every member expected to have.
It is a pleasure to open this debate on a landmark piece of legislation. [Interruption.]
Order. Members must leave the chamber if they are not staying for the debate and must not carry on conversations—that applies even to ministers.
In reforming the law on rape and sexual offences, the bill will modernise and clarify a complex and sometimes confusing patchwork of common law and statutory provision, sweep away outmoded attitudes and terminology, and put sexual offences law on a statutory footing for the first time. It will provide Scotland with the clear, modern and robust legal framework that is required to ensure that victims are protected and offenders punished.
We should take a moment to recognise that the bill also represents a major step forward for the Parliament. For the first time, an entire area of Scots common law is being codified—in other words, placed on the statute book. The primacy of Parliament in determining the law of the land is one of the hallmarks of democracy, and I regard the bill as a landmark that is worthy to mark the 10th anniversary of devolution.
Although the common law has been in place for hundreds of years, it has of course changed over time. It was only 20 years ago that it changed to recognise that a man could rape his wife. Until then, a woman was deemed on marriage to have given her irrevocable consent. It was only in 2001, following an appeal by the then Lord Advocate, that Scots law formally recognised that rape occurs when sexual intercourse takes place without a woman's consent, regardless of whether force is used to overcome her will.
The bill consolidates those advances in the law and builds on them. In particular, it provides, for the first time, a statutory definition of consent. That is important because consent is central to the definition of sexual offences—sexual activity without consent is criminal. It is important that the law in this area is clear and easily understood, not only by specialist lawyers, but by ordinary members of the public. The bill defines consent as "free agreement", which is a term that can be easily understood by all.
The bill widens the present definition of rape, which, as the Lord Advocate has said, is one of the most restrictive definitions of rape in the western world. There is no doubt that other forms of attack, including male rape, are perceived by their victims as rape, and it is right that the law recognises that.
At stage 2, we amended the bill to respond to the Justice Committee's view that there should be a specific offence of sexual assault by penetration. Such assaults can be particularly horrific for their victims, and the witnesses who gave evidence to the committee made strong arguments for distinguishing such behaviour from other forms of sexual assault.
Despite those and other improvements, we must recognise that legislation cannot be the justice system's only response to rape and other sexual offending. That is why the Crown Office's work to improve the investigation and prosecution of rape and serious sexual offences is vital. In 2006, it published a report that made 50 recommendations on the reform of the investigation and prosecution of serious sexual offences, and it is now well on its way to implementing them all, thereby improving the way in which such offences are prosecuted.
I take the opportunity to thank the Lord Advocate, who has long championed reform of the way in which the Scottish justice system deals with rape and other sexual offences. Her commitment has been instrumental in driving forward the reform of the substantive law and the modernisation and improvement of the way in which the Crown Office investigates and prosecutes such offences.
It is crucial that steps are taken to change public attitudes and to challenge misconceptions. Rape Crisis Scotland has been at the forefront of that work. It has striven to change attitudes and to challenge the significant minority who are still too willing to blame the victim rather than the perpetrator. That is why we provided the organisation with funding for its hard-hitting campaign, "This is not an invitation to rape me", which sets out to challenge the myths and misconceptions about rape and to change the culture that exists in our country. It is vital that we challenge myths, assumptions and unacceptable attitudes if the legislative reforms and the changes that are being made to the prosecution of such offences are to be fully effective. We are on a journey that is not simply about legislation, but is about Scotland becoming a modern and progressive country in which the position of women is recognised and they are treated with the respect to which they are entitled.
The Government remains committed to doing all that it can to strengthen the justice system's response to those who commit these appalling crimes, and to making Scotland a stronger and safer place for all. This bill will provide a solid basis for that work, setting out a clear, modern and robust framework within which to prosecute these appalling and despicable crimes.
This is only the beginning of what will be a long road, but I believe that we have made a good start. I am sure that Parliament will continue to take a close interest in the law as it develops in practice.
We need to ensure that, as well as providing the legislative basis, we help the nation to make cultural and attitudinal changes. It gives me great pleasure to move,
That the Parliament agrees that the Sexual Offences (Scotland) Bill be passed.
I think that many other members of the Justice Committee would agree that we have successfully interrogated a number of the challenges that we faced during the progress of this bill. It is important to put on record our appreciation of the clerks who have provided us with support during the process, and our appreciation of the Scottish Parliament information centre, which provided information to Robert Brown that allowed him to further his interrogation of issues that we discussed earlier.
I also want to put on record our appreciation of the Lord Advocate, who has played a crucial role in the modernisation of our legal system in relation to this issue. On many occasions she has been a champion who has ensured that victims and their experiences are considered very carefully. That has been important.
Robert Brown was right to raise the issue of consulting young people on the effects that this bill will have on their lives. I hope that he has been successful. A key theme during our interrogation of this bill was that young people were key stakeholders. A trend has appeared, not only in the Scottish Parliament but in various organisations that are responsible for implementing legislation, of talking at young people and not listening carefully to the points that they raise. I hope that Robert Brown's points will be taken on board. They were constructive, and I welcomed the Government's response. The committee acknowledged the issue and recommended the need for a meaningful and age-appropriate response to providing young people with the information that they require. I believe strongly that we have to encourage young people to pursue positive lifestyle changes. That can only be achieved by our working with them. Johann Lamont gave a very positive example of that.
Earlier, we discussed Robert Brown's amendment 125. I have no doubt that every member of this chamber wants to protect the welfare of every child in Scotland, and I understand some of the points that Robert Brown raised. However, I make no apology for considering the other end of the spectrum. I am not saying that the possibility is not remote, but the technical possibility remains that the sexual assault of a child could result only in a fine. That is unacceptable. I appreciate that other members feel that it could not happen and that there would be an appeal, but it remains technically possible. We have received information that the sexual assault of a child could result in a fine. That is unacceptable, and it is quite right for the Labour Party to interrogate the issue. It is also right for Robert Brown to raise his particular example. However, we have to have the debate, because sometimes we are not quick to represent possible victims. As a result of amendment 125, children could be at risk.
I understand the member's point, but does he not accept that, with the law as it was, the only alternative would have been an admonition?
That is right.
It is all very well for members to say, "That is right" from a sedentary position. It is also right to say that it is technically possible for the sexual assault of a child to result in a fine. Members may shake their heads, but that was made clear in the information that was provided to the committee. If members take the time to read the Official Report and the responses that we received from Professor Maher and the Lord Advocate, they will see that nobody disputes that that is the current position. As I said repeatedly throughout the three stages of the bill, that is unacceptable. It is important to make that point.
There have been many positive aspects to the bill. We have successfully interrogated every aspect of this complex bill, and I hope that members will support it at decision time.
Some five years ago, the previous Scottish Executive realised—and there was a general parliamentary view—that the existing law of sexual assault was no longer fit for purpose. Since then, we have followed a fairly lengthy route, but one that has arrived at a successful conclusion. I pay tribute to all those who were involved in the bill: the Scottish Government; the members of the Justice Committee, who put in a tremendous amount of hard work; the clerks to the committee; and SPICe. At the end of the day, we have a bill that is worthy of the Parliament and that will make things better.
The definition of rape, which was defined in somewhat narrow terms over centuries, has been widened to include, as the minister said, rape with an implement, sodomy and male rape. In our contemporary society, those are necessary and appropriate changes. We have also disregarded, to some extent, the siren voices of those who believe that our young people should be exposed to a degree of risk. In that respect, the Justice Committee arrived at a measured and correct conclusion, which has been fully supported by the Scottish Government and the wider Parliament today.
There are some outstanding matters, regarding public attitudes, that are not really for the Parliament. We will have to wait and see what effect those will have. Courts will be required to determine what terms such as "free agreement" and "incapable" mean in common usage. Nevertheless, we are now further down the road, which will enable those determinations to take place, and we can be sure that there will be the widest possible protection for the potential victims of rape.
For the first time in almost 11 years, Margaret Curran has been able to persuade me to support her case. I trust that that will not render her too uncomfortable.
This has been a good piece of work. We may sometimes be frustrated at the limitations of what we can do. People sometimes behave foolishly and even irresponsibly. However, it our duty to ensure, as far as is possible, that they are protected against their own actions. The bill is a clear illustration of what can happen when our albeit limited intellects operate in a combined way to produce legislation that is worthy of the Parliament.
I join colleagues in thanking my fellow members of the Justice Committee, the clerking and other parliamentary staff, and the cabinet secretary and his staff for their professional and helpful attitude during consideration of the bill. I also thank the witnesses who gave us written and oral evidence during its passage, not least the Lord Advocate.
The bill addresses many difficult and sensitive areas, some of which are potentially controversial and provoke strong feelings in people. Not for the first time, the Parliament's committee system has unravelled and analysed many of the issues with great skill—corporately, not individually—so that we have ended up with a bill that will command wide consent and a sense that individual views have contributed to the end result—as, indeed, they have.
The most controversial and difficult area relates to the age of consent, in respect of which the Government departed from the Scottish Law Commission's recommendation. That was the right decision, not least because it sends out a clear and easily understood message to young people, but it raised issues about whether the provision might deter young people, not least girls, from accessing sexual health and other services at the right time. That was one of the reasons why Liberal Democrats and others made such an issue of the importance of finding out young people's views and attitudes so that those views, as opposed to our assumptions about their views, could inform the bill and its implementation. It has been a useful debate.
Any age limit is arbitrary to a degree, but there is a big difference between the position of young children under 13, who have no capacity to consent to sexual relations and who require clear and unambiguous legal protection, and the position of young people from the ages of 13 to 16, who also need protection, advice, support and guidance but who should not normally be criminalised for consensual activities with young people of roughly their own age.
The other major difficulty relates to the concept of consent in cases involving rape and other sexual offences. Matters of sexual relationships are unusual in being criminal and highly reprehensible when conducted against the will of one party, particularly in a brutal or violent way, but an entirely legitimate part of ordinary life—and, dare I say it, necessary for the continuation of the species—when conducted via consent. That underlying principle, elegantly explained in the Law Commission's report, is joined together with the concept of sexual autonomy.
The bill is a progressive one, modernising the law and putting heterosexual and same-sex issues on the same basis. It provides protection and sanctions in cases in which men are the victims of nasty and brutal sexual attacks, as well as when women are the victims. The tidying up of outdated phraseology relating to male prostitution is also welcome, having been agreed to by the Government, at the suggestion of the Justice Committee, at stage 2.
The bill replaces the common law, and it should provide greater clarity and certainty and a more modern definition in some important areas. As a whole, it provides what we hope will be a modern statute, fit for purpose in the 21st century, playing its part in deterring crime and securing justice for the victims of serious crimes of a sexual nature.
I am glad to add my support and the support of the Liberal Democrats to the passage of the Sexual Offences (Scotland) Bill.
I also thank the Justice Committee, its clerks and the Cabinet Secretary for Justice for the hard work that they have done. They listened to everyone and produced an important bill.
I am pleased to be able to speak on this bill. As I said, I do not think that it is the most important bill in the Parliament, but it is certainly one of the bills that I have spoken about and I feel is important. It is also historic. Lots of bodies have raised issues regarding the subject of the bill, as have the public and academia, because they have felt that Scots law is out of date in relation to rape and sexual offences. I thank the previous and present Governments for taking those issues seriously and enabling the Parliament to pass this bill in a consensual manner. We must remember that, whatever decisions we make in this Parliament, the rights of victims and the protection of the most vulnerable in our society must be what we focus on.
I am pleased that Margaret Curran's amendment 1 was accepted, as I believe that the defence of prior consent has been used far too often in rape and sexual assault cases involving intoxication.
I am sorry that Paul Martin and the Labour Party appear not to understand exactly what Robert Brown's amendments 121 to 125 mean. I think that Robert Brown explained the position, but I will try again to make it clear. The accepting of the amendments means the addition of fines, whereas Paul Martin is advocating that the accused be admonished—I wish that he would accept that point. We all agree that any sexual offence is a terrible indictment of human society. I would like Paul Martin to clarify in his own mind the fact that the fines would be an additional disposal and that the alternative is that the accused would merely be admonished. I wish that he would listen to that point.
My only regret involves the issue of consensual sex between young people of between 13 and 15 years of age and the threat that those young people might end up with a criminal record, which Robert Brown touched on. The matter might be outwith the remit of the Scottish Government, but I hope that we can return to it, as it is important, and that it will be part of the consultation with young people that the Cabinet Secretary for Justice mentioned. The issue might be controversial, but it is an important issue for the 21st century, and I think that young people should have an opportunity to speak about it.
I am not sure that I agree with Sandra White that the Sexual Offences (Scotland) Bill is not one of the most important bills to go through the Scottish Parliament. It is among the most important, in my view, because it speaks to something very deep in our society—the experience of women who face violence and the fact that somebody would choose to use their power to violate somebody in a sexual way.
It is telling that the First Minister has chosen to be absent and not to participate in this afternoon's critical debate. It is a symbolic as well as a political matter for our First Minister to choose to participate in a political stunt with his Conservative colleagues at Westminster rather than recognise what politics is actually about. People are alienated from the brouhaha of politics, but the bill is an example of what we can do together when we examine important issues. Today, we have an opportunity to support a bill that is radical in its intention and will have significant consequences for women. Our First Minister should be here to recognise the importance of that kind of politics.
The debate is not an easy one. The reality at its heart is that there is still a view that, if a woman is raped, it is somehow her fault. Through time, that justification has changed, but it remains instructive to make the point that people look not to the crime or the alleged criminal but to the victim. That can overwhelm us, and the fact that the conviction rate is as low as it is can lead to despair, but today we are taking a significant step forward. We know that there has been progress, but more has to be done to meet further challenges.
In the early stages of the Scottish Parliament, action was taken to address the need to support survivors, to make agencies responsive, and to recognise that the legal system revictimises women who go through the process. The Abernethy ruling seems a long time ago. Robert Brown spoke earlier about small brains, but we must reflect that, at that time, big brains told us, "You cannot do this." They said that we could not protect women from the people against whom they complain in relation to sexual offences. I particularly commend my ex-colleague Angus MacKay, who, as Deputy Minister for Justice at that time, had the courage to take on the establishment who said, "These things cannot be done." We are now moving from that place to liberating and progressive legislation.
At one time, no one believed that there could be rape inside marriage. There has been progress, and we have to hold on to that. We must commit ourselves to ensuring that we have sustained support services for survivors, and we must challenge attitudes, starting in schools, and liberate boys and girls from the expectations that are placed on them. If we do not understand how gender roles are applied, we will not change those attitudes. If anything can give us confidence in the shared journey on the legislation, it is to understand the progress that has come because of the powerful role of Rape Crisis Scotland and women's organisations who have given voice to women's experience—
The member must conclude now.
We must allow that experience to shape our legislation on sexual offences, and we must learn from it in other legislation.
I would like to comment—briefly, under the circumstances—on the process of getting to where we are today.
I reflect that anybody who has picked up a book on Scots criminal law knows that it is particularly unsatisfactory in the area that we are discussing this afternoon. The Lord Advocate's reference of 2001 and McKearney v Her Majesty's Advocate in 2004 made it clear that the law was unsatisfactory, and at that point the Scottish Law Commission got involved. The commission was mentioned earlier, but I pay particular tribute to it because, despite the huge number of small amendments that have been made to the bill, it is by and large the bill that the commission proposed after serious consideration of the issues in 2007. We should congratulate it on a good piece of work. I am sure that it will be pleased that the bill has gone through the Parliament, and I am sure that the authors of standard textbooks will also be delighted with what has happened today.
I reflect on the principles, as enunciated by the Scottish Law Commission, that the law should be clear; that it should respect sexual autonomy, which is the basis on which consent came into the bill; that it should recognise the protective principle and those in our society who need to be protected by the law because they cannot protect themselves; and that there should be no distinction on the basis of sexual orientation or gender, which is, of course, where we have got to in the 21st century.
I too thank and pay tribute to my Justice Committee colleagues. Our consideration of the bill was an extraordinary bit of teamwork and, as a relative new boy to parliamentary politics, I found it a great pleasure to witness the way in which the committee worked so well together.
That said, certain issues outwith the scope of the bill still have to be addressed. First, the bill does not change the fact that women in particular remain unlikely to report rape. Not only will the Government have to continue its work on this issue but, as others have mentioned, society itself will have to work on such attitudes.
Secondly, during its consideration of the bill, the committee reflected on the way in which reported cases were dropped while being investigated by the police and considered for prosecution. I believe that we agreed to call for an attrition study on the matter. In any case, it is hugely important that we understand the process that cases go through; otherwise, the passing of better law will not necessarily lead to better results.
Finally, we do not know very much about how juries work. The committee realised that it could not address that matter immediately, but it is a real issue and work really needs to be carried out on that part of the process.
I concur with other members on the significance of this legislation but, notwithstanding Robert Brown's very important comments about the bill's breadth, I will focus on the issue of rape.
The bill represents another step in our many efforts over the lifetime of the Parliament to tackle the appalling levels of conviction for reported rape. It is indeed distressing that Scotland has the lowest rape conviction rate in Europe. Research from Rape Crisis Scotland has established beyond any doubt that complainers find the trial process traumatic, degrading and humiliating, and I would never recommend that a woman put herself through the process. However, I believe that there is a will in all quarters of the Parliament to tackle not only that factor but the others that contribute to the low conviction rate to which Nigel Don referred.
This legislation, which represents a key and very welcome step, broadens the definition of rape and sets out for the first time a definition of consent. I pay tribute to the cabinet secretary and his team for the way in which they have conducted themselves and to the Justice Committee, which has served the Parliament very well.
That said, we should not get too complacent and start congratulating ourselves or believing that this legislation is enough. Despite earlier changes to the use of sexual history and character in court, seven out of 10 women who give evidence are almost guaranteed to be asked about those aspects. Increasingly, defence lawyers have sought complainers' medical records and frequently cited, for example, periods of depression as relevant to the trial. That is certainly a concern and will obviously influence a woman's decision to proceed with her case.
Rape is a vile and violent crime. Although it largely affects women, we know that everyone is revolted by this kind of grievous assault and its consequences. Reporting rape demands courage and fortitude, and I have no doubt that women and men throughout Scotland understand that and want a sensitive and effective judicial system that delivers truth and justice.
That is why I have to tell the Parliament that the absence of the First Minister represents a glaring omission of leadership—it is a breach of our normal approach in this Parliament when we are reaching across party divides to ensure that there is leadership and that we deliver on such important issues.
This legislation is an important milestone, but the work does not stop here, and I ask the minister to address other key issues such as the use of sexual history and medical records in court and the growing campaign for independent legal representation for rape victims in the trial process. We need to ensure that rape crimes are investigated and prosecuted and that victims receive the proper support. The bill's provisions will assist us in that process, but this is only the beginning, not the end.
I welcome today's debate. Although the Liberal Democrats fully support what this vital piece of legislation is trying to achieve, the law on sexual offences is by its nature a sensitive topic and should be scrutinised thoroughly.
Many members have remarked today that Scotland's low rape conviction rate is nothing short of a national shame, and I welcome the fact that further legislative steps are being taken to address that pressing problem. In particular, I acknowledge the importance of new provisions that define consent in law and include the abuse of males in the definition of rape. I also state my support for the introduction of new statutory offences for anyone spiking drinks for sexual purposes and coercive sexual conduct.
Any legislative provision must be backed up by a radical change in the way in which our society views and supports victims. That point has been well made by the minister and other members during this short debate. Rape is the only crime in which we, as a society, denigrate and blame the victim, and any legislative effort is at risk of being rendered ineffective unless there is widespread cultural change. Tackling the stigma of being a rape victim is, in many ways, equally important to securing convictions.
I will also comment on the matter of underage sexual relations. Everyone agrees that sexual relations by persons under the age of 16 are not a good thing, with regard to emotional and physical maturity as well as to sexual health, but that does not take away from the fact that a significant minority of youngsters engage in underage sexual relationships. It is of vital importance that legislation fully acknowledges that. A blanket approach runs the risk of ignoring underlying issues rather than establishing how the law can be most beneficial in influencing young people.
Professor Kathleen Marshall, formerly Scotland's Commissioner for Children and Young People, expressed concern that the bill was
"proceeding on the basis of insufficient information"—[Official Report, Justice Committee, 4 November 2008; c 1277.]
as far as the views of young people were concerned. That raised legitimate concerns regarding the bill's future effectiveness, and—as my colleague Robert Brown has said—it is regrettable that the Scottish National Party did not carry out more consultation with young people before the bill started its passage. That is why Liberal Democrats have pushed the Government to undertake appropriate consultation with children and young people about their attitudes towards part 4 of the bill prior to its commencement. We have also called for a publicity and information campaign to inform children and young people about changes to the law that directly affect them, so that the system of rules is equally clear to young people, parents and the police.
The bill has been widely acknowledged by ministers and campaign groups as an historic opportunity. Like other members, I congratulate the Lord Advocate; I know that the issue is close to her heart. I hope that the Parliament can seize the opportunity and deliver a Sexual Offences (Scotland) Bill that is capable of addressing the sensitive and important matters at hand. I support the bill.
Like other members, I begin by welcoming the progress of the bill to stage 3. The quality of evidence throughout and the measured and reasonable contributions from witnesses during the bill's earlier stages are to be commended.
The bill provides important clarification in a number of complex and delicate areas relating to sexual offences and the law of rape. The law on rape and other sexual offences has been long overdue for clarification and updating. As Nigel Don said, academics and petitioners have been critical of the Scots law on rape for many years.
The bill undoubtedly modernises the law on rape and sexual offences. Creating a non-gendered approach to rape and widening its definition will, we hope, create a more supportive environment in which victims can come forward. The inclusion in the bill of other forms of sexual penetration, including the use of an implement, is appropriate, and that will be seen as an important step in the evolution of the law on rape and sexual offences.
By addressing offences committed on mentally disordered persons and children and offences committed by people who are deemed to be in a position of trust, the bill provides a voice for vulnerable sections of society who are less able to speak out for themselves. Although we acknowledge that children are maturing earlier, it is right that the age of consent has been kept at 16 and that there will be legal consequences for those who do not abide by that law. That view is supported by church groups and others, and it was appropriate for the Scottish Government to retain in the bill the option of criminal prosecution for consensual penetrative sexual conduct between older children.
Once it is enacted, the bill will go a long way to addressing and changing the blame culture that surrounds rape and sexual offences in our society. The view that women might invite rape by wearing revealing clothes or by being flirtatious, or if they are drunk, must be completely rejected—a point that was made by Johann Lamont.
Some problems in this area of law will remain harder to solve. For example, the definition of consent as "free agreement" does not eliminate the issue that the line between true consent and submission is still somewhat elusive. It is likely that problems will always occur in this complex area of the law. The bill is a step in the right direction, clarifying definitions and providing support for a wider range of victims, but it is important to acknowledge that more is to be done outside the legal arena to tackle attitudes towards the victims of rape. We look forward to supporting the bill at decision time.
All members want Scotland to have the most robust legal framework possible in relation to sexual offences. The impact that such offences have on their victims makes it all the more important that we have the right laws to deal appropriately with those who commit such offences and that we deal in a fair and informed way with the sensitive issue of what constitutes a sexual offence.
As members have said, we have dealt with the issues against the backdrop of what remains a worryingly low conviction rate for rape. Reports today suggest that the conviction rate is going up, but it nevertheless stood at only 3.7 per cent in 2007-08. The Lord Advocate rightly pointed out in evidence to the Justice Committee that there is no panacea for the problem and that the bill is not specifically about improving conviction rates. We require further detailed research into the system of investigation and prosecution of cases. A package of measures will be required, so that people have more confidence to come forward and report rape, which still too often goes unreported.
Does Richard Baker acknowledge that the problem lies further back? The Lord Advocate said that, after an indictment or charge, 70 to 80 per cent of cases result in conviction.
That is a valid point, but the crucial point that I am making is that the perpetrators of such crimes should not expect to go unpunished and should face severe penalties for their actions.
The understanding of consent to sexual activity has also been debated. Margaret Curran's successful amendment will ensure that someone who is incapable of giving their consent to sexual activity cannot be deemed to have consented simply because of earlier statements. That move forward provides greater protection from unwanted sexual activity to those who lack the capacity to consent. That has helped to make the bill better.
Another key debate was on consensual sexual relationships between 13 to 16-year-olds. Like John Lamont, I believe that the retention of the status quo is right. However, it is important that we consider the welfare issues that have been raised in connection with that, particularly by many organisations that work with children and young people. It is important to implement the Justice Committee's recommendation that multi-agency co-operation should provide effective support to children who are involved in underage sexual activity. Consultation with young people on the impact of the bill is important, too. My colleague Cathie Craigie raised that issue on several occasions.
We are not happy with Robert Brown's amendments on penalties that were agreed to today. We believe that, in minor cases of sexual assault or sexual assault on a child, it is for prosecutors to ensure that cases are prosecuted effectively. However, we are not comfortable with the fact that sexual assault or sexual assault on a child that is prosecuted under the solemn procedure could result in only a fine. The issue is not about an additional disposal. People have talked about the status quo, but we are discussing how the law should be modernised. I fail to see why Robert Brown cannot understand, in whatever size brain he has, why we feel it was more appropriate to maintain the status quo after stage 2, in which sexual assault or sexual assault on a young child, when prosecuted under the solemn procedure, could not result in simply a fine. I thought that Bill Aitken would be with me on that, given his attitude on the general issue. A fine is the most unsatisfactory outcome. Robert Brown mentioned community sentences, which would be a more appropriate disposal. However, we are where we are.
The vast majority of the process has been consensual. It is important to give credit for the hard work that has been done on the bill. Ministers, the committee, the clerks and civil servants deserve great credit for reaching a broad consensus on difficult issues. It is of great importance that we do all that we can to protect people in our country from harm and that we have effective and modern laws on sexual offences.
I am pleased that we have had the opportunity to debate the Sexual Offences (Scotland) Bill, which will bring much-needed clarity and consistency to the law on sexual offences. I thank all those who contributed to the bill's development.
The previous Administration asked the Scottish Law Commission to review the law on rape and other sexual offences in 2004. The Scottish Law Commission's carefully considered "Report on Rape and Other Sexual Offences" and its draft bill provided a solid foundation on which to work in making progress on the reform of the law. We are fortunate to have the Scottish law commissioners and their staff. Their excellent work helps to provide a useful foundation for our legislative work.
I also thank all those who took the time to share their experience and expertise on these difficult issues in response to the Scottish Law Commission's discussion paper of 2006 or our consultation on the commission's final report prior to introducing the bill into Parliament, or in giving written and oral evidence to the Justice Committee as part of its consultation on the bill. That wide and informed input was invaluable in helping us and the Justice Committee to identify ways in which the bill could be strengthened and improved.
I pay tribute to the Justice Committee, under the avuncular convenership of Bill Aitken, whose stage 1 report on the bill was carefully considered and balanced and identified a number of ways in which the bill could be improved. The Government worked closely with all committee members to lodge amendments at stage 2 to address the points that they raised and to deal with issues of concern to the Government that had not been the focus of the debate. I put on record the Government's thanks to the committee and its clerks for their careful work in scrutinising the bill's provisions and, more generally, for the balanced and constructive way in which they approached their work on the bill. It is truly appropriate that we have found a modus operandi on the part of the Government, in working with the committee, that is entirely co-operative and not at all adversarial. What more appropriate topic of legislation could there be for such an approach, if one thinks about it?
Almost all members have paid tribute to the Lord Advocate. Elish Angiolini has been a long-standing supporter of reform of the law. Her formidable leadership on this issue and her steely commitment to improving the way in which the Scottish justice system deals with rape and other sexual offending were of huge importance in progressing the bill.
I thank all those members who contributed during the passage of the bill. We welcome Margaret Curran's amendment to the provisions concerning capacity to consent and intoxication, which brings greater clarity to the law by sending the simple message that sexual activity with a person who is so intoxicated that they are not capable of giving consent is criminal.
Sandra White raised concerns about the possible adverse consequences of criminalising girls for engaging in consensual sex while under the age of consent. I understand those concerns and I believe that it is vital that the law distinguishes clearly between the victim of an offence and the perpetrator and treats them differently. However, when we are talking about an offence that is committed by two people acting consensually, it must be right that the law treats them in the same way. It is important that the policy is seen in the context of our broader policy on children who commit offences. In all but the most exceptional circumstances, children would be dealt with through the children's hearings system, with the emphasis on the welfare of the child, rather than being subject to criminal prosecution.
We lodged amendments at stage 2 to deal with prior consent and sleep. The new section 10A replicates our understanding of the current law by providing that someone who is asleep or unconscious cannot give consent while in that state. Although the new section provides that consent cannot be given in such circumstances, it does not exclude the possibility of a reasonable belief in consent, nor does it place any specific restrictions on how such a reasonable belief may arise. In practice, it will be for the court to decide whether any claim of reasonable belief in consent on the part of the accused is credible in cases in which such circumstances arise. It is highly unlikely that a court would regard a belief that a victim gave consent while he or she was incapable of giving consent as a reasonable belief.
The cabinet secretary said earlier that the Government agrees that it would be helpful to consult children and young people to help us to decide how we can best take forward the bill. I mention that specifically because of the comments that Robert Brown and Mike Pringle made in their speeches. I therefore echo the cabinet secretary's assurances in that regard.
I thank all members for their contributions. The passage of the bill has demonstrated that the Government and MSPs can work across party boundaries to agree important legal reforms in a complex and sensitive area of public policy. I hope that the Parliament will vote unanimously to pass the bill.