Sexual Offences (Scotland) Bill: Stage 1
The next item of business is a debate on motion S3M-3308, in the name of Kenny MacAskill, on the Sexual Offences (Scotland) Bill.
I begin by acknowledging the work of the Justice Committee in preparing the stage 1 report on the Sexual Offences (Scotland) Bill. I also thank the groups and individuals who gave oral and written evidence on the bill. The bill deals with difficult and legally complex matters, and I am sure that the whole Parliament acknowledges people's contributions.
The Justice Committee's stage 1 report is considered and balanced. I thank the committee for its agreement to the general principles of the bill and I appreciate its detailed and careful consideration of the issues. I wrote to Bill Aitken on 3 February to record our response to the report. I do not wish to repeat everything that was said in the letter, but I will say something about the main issues that were raised.
First, though, I want to set out the broader context of the bill. The previous Administration asked the Scottish Law Commission to review the law on rape and other sexual offences in Scotland and to make recommendations for reform. There is widespread agreement that existing law in this area is unclear and derives from a time when attitudes were very different from today. The bill presents an historic opportunity to reform a complex patchwork of common law and statute, replacing it with a clear, robust legal framework that reflects the values of our modern society.
The question of consent is absolutely central to the definition of sexual offences. Sexual activity without consent is criminal, and yet at present "consent" is not defined in law. It is important that we ensure that the law on consent is easily understood, not only by specialist lawyers but by everyone. That is why there has to be a definition. For the first time, the bill provides a statutory definition of consent as "free agreement", which I think is a concept that can be easily understood by anyone. The bill makes it clear that consent may be withdrawn at any time and that consent to one instance of sexual activity does not automatically mean consent to any other.
The bill widens the definition of rape to include anal and oral rape. Such attacks are perceived by their victims as rape, and it is right that the law should recognise that. Currently, as the Lord Advocate has remarked, Scotland has one of the narrowest definitions of rape in the world.
By equalising at 16 the age of consent for boys and girls, the bill also addresses a number of inconsistencies in law that protects children from sexually predatory behaviour. The bill will also enable us to prosecute anyone from Scotland who commits a sex crime under Scots law against children abroad.
I take this opportunity to thank the Scottish Law Commission for its detailed and considered report on reform of the law on rape and other sexual offences. The report formed the basis for the bill, and I would welcome the views of members on the provisions.
I will now outline the Government's position on some of the key recommendations in the Justice Committee's stage 1 report. The report recommends that the Government give consideration to the creation of a separate offence of "rape with an object", which would be distinct from sexual assault and would cover situations in which the victim was subjected to a penetrative assault on his or her anus or vagina with an object or other body part. There can be no doubt that penetrative assaults involving objects can be extremely violent and may be perceived by their victims as constituting rape. In view of that, I recognise that there are strong arguments for distinguishing such behaviour from other forms of sexual assault and including it within the definition of the offence of rape.
However, there is a risk that if the definition does not match the public conception, and hence jury members' conception, of what constitutes rape, juries may be reluctant to convict people of the offence of rape with an object. It might, therefore, be more appropriate to create a separate offence of "assault by penetration", which is the approach that was taken in the Sexual Offences Act 2003 in England and Wales. I have made it clear, in my response to the Justice Committee on the matter, that I am keen to reach a consensus on the issue, and I have offered to discuss it with the committee before lodging amendments at stage 2 that reflect the consensus view on this important issue.
Turning to the question of sexual activity between children, I welcome the committee's support for the retention of the age of consent at 16, which the Government considers to be essential. I am pleased that the committee also agrees that children below the age of consent who engage in sexual activity should, in the overwhelming majority of cases, be dealt with by the children's hearings system, which is best placed to consider the welfare of the child, rather than be subject to criminal prosecution.
The committee has recommended that the offence concerning sexual intercourse between consenting teenagers be extended to include oral sex. Members will recall that the Scottish Law Commission proposed decriminalising all consensual sexual activity between 13 to 15-year-olds. However, we had concerns that that might be interpreted by young people as a lowering of the age of consent and a condoning of underage sex. We therefore amended the commission's draft bill to ensure that consensual sexual intercourse between 13 to 15-year-olds would continue to be unlawful. We had restricted the scope of the offence to those activities that carry the greatest risk of adverse consequences, including sexually transmitted infection and unintended pregnancy but, in the light of the committee's recommendation, we will consider whether the scope of the offence should be extended before lodging amendments at stage 2. Before reaching a conclusion on the matter, I would welcome the views of Parliament more widely.
The report states that the committee considers that there is objective justification for treating the genders differently with respect to the criminalisation of consensual underage sex. The committee gives the example of two children engaging in consensual penetrative sex that results in the girl's becoming pregnant. It is stated that it would be highly undesirable and potentially damaging to subject the girl to a criminal prosecution and that referral to the children's panel would be a more appropriate response. It is important to emphasise that the vast majority of children who commit criminal offences will continue to be dealt with by the children's reporter rather than be prosecuted in the criminal courts. It is highly unlikely that the Crown would consider it to be in the public interest to prosecute a girl or boy—pregnant or otherwise—for engaging in consensual sexual activity.
However, the Government's view is that there is a risk that criminalising the conduct only of boys who engage in such activity would violate articles 8 and 14 of the European convention on human rights. In our view, there is not sufficient objective justification for providing as a matter of law that one of the parties is guilty of an offence and the other is not when the act is consensual. We therefore take the view that the offence at section 27 should apply to both boys and girls.
Is the Government absolutely certain that not having gender neutrality in the bill would violate articles 8 and 14 of the ECHR? The Government's position is baldly stated in the cabinet secretary's response to the report, but I would be grateful—as, I imagine, other members would be—for some detail on why the cabinet secretary reached that conclusion.
The best legal advice that we have received to date is that the ECHR requires us to be gender neutral. However, I am happy to give an undertaking to the member and to the Justice Committee to ensure that we provide a more fulsome explanation of the basis of that legal advice. We are driven by the legal advice on the matter, although we note that there are other good reasons.
The bill is not the complete solution to the justice system's response to rape and other sexual offending. We must recognise that reform of the legislative framework alone, although it will bring much-needed clarity to the law, will not in itself be sufficient to address Scotland's low conviction rate for rape. There are other strands of work to reform the law on rape and other sexual offences. The Crown Office and Procurator Fiscal Service conducted a review of how cases of rape and serious sexual offences are investigated and prosecuted, and published a report in 2006. The report made 50 recommendations for reform, which the Crown Office is now well on its way to implementing to improve the way in which rape is investigated and prosecuted.
Does the cabinet secretary accept that the gist of that report relates to the issues of the under reporting of such offences, of people being frightened to report them, and of having enough evidence, rather than to the conviction rate in court, which appears to be very similar to that of other European countries?
Absolutely. We as a Government are clear that matters need to be addressed in relation to legislative changes, which is why the previous Administration asked the Scottish Law Commission to report, and why we are driving the issue forward. Other matters need to be addressed, such as the treatment of victims by the Crown and by police, and attitudes that are held in Scottish society need to be challenged. That is just one part of the way in which we are driving matters forward.
The Scottish ministers recognise that other matters—the law of evidence in particular—need to be addressed. We have therefore asked the commission to undertake a review of certain aspects of criminal procedure and evidence, including the use of the Moorov doctrine. The commission has indicated that it believes that the Moorov doctrine would be best considered in the context of a wider review of the requirement for corroboration. Its conclusions on those issues will be particularly important for the prosecution of rape and other sexual offences.
We as a Government recognise that we need to challenge attitudes. Too many people are prepared to blame the victim. It is shocking that a recent survey found that 25 per cent of people thought that a woman bore some responsibility for being raped if she wore revealing clothing, and 24 per cent thought that a woman can be at least partially responsible if she was drunk at the time of the attack. That is why we have provided funding to Rape Crisis Scotland for its campaign, "This is not an invitation to rape me", which sets out to challenge myths about rape and negative attitudes towards women.
Challenging myths, assumptions and unacceptable attitudes can contribute to the culture change that is needed to underpin the legislative reforms that we are making as we seek to make Scotland a safer and stronger place.
I move,
That the Parliament agrees to the general principles of the Sexual Offences (Scotland) Bill.
The genesis of the bill was a decision that the then Minister for Justice, Cathy Jamieson, took in 2004 to remit to the Scottish Law Commission the duty of examining the law that relates to rape and other sexual offences. Her decision was predicated in part by the appeal court's ruling and the Lord Advocate's reference in the case of Reid, but it also reflected a growing public debate with regard to the law on sexual offences in general, with particular questions being asked about whether the law was in touch with the present time and circumstances.
Following the introduction of the bill, the Justice Committee took oral evidence over five sessions in October and November. Evidence was given by 34 witnesses from differing backgrounds, such as charities, church groups, the police, the legal profession and academics, as well as, of course, the Cabinet Secretary for Justice. The committee thanks those witnesses for giving evidence in a coherent and measured manner. Some of the evidence that we had to take was sensitive, graphic and sometimes indelicate. Accordingly, I express my personal appreciation for the professionalism that the witnesses and my committee colleagues demonstrated in dealing with those matters, which were, as I said, sometimes quite difficult.
The committee has reported on the bill in generally favourable terms, although some matters are still outstanding. I thank the cabinet secretary for what I regard as a positive and constructive approach, as outlined in the letter that he sent to me. That will be progressed further in early course.
The committee's methodology involved examining in depth each of the principal sections of the bill in turn. The first issue that concerned us was the definition of rape. The current legal definition in Scotland is that rape is the offence whereby a man inserts his penis into a woman's vagina without her consent. It is true that the victims of other forms of sexual assault are protected by the laws that relate to sodomy and lewd and libidinous behaviour and, in some cases, by those that relate to assault to severe injury, but the committee was unanimous in its view that an extension of the present law was necessary. The offence of rape should be gender neutral and should include so-called gay rape, penetration of other orifices and wider assaults. In particular, we were convinced that action had to be taken on assaults involving an implement. I am pleased that the cabinet secretary has agreed with that viewpoint, because such assaults sometimes have long-lasting effects and cause horrendous injury. It is imperative that the Parliament and the Government respond.
The second issue that concerned us was that of consent. So-called stranger rape frequently involves violence—which is sometimes extreme—or the threat of violence. It is a terrible offence, but it is an easy one to prove, as consent is not an issue. The investigating and prosecuting authorities find things much more difficult when an alleged assault occurs between parties who are or have been involved in a relationship. In such cases, when the issue is whether consent was granted, it is immeasurably more difficult to prove that an offence has been committed. We have already departed—quite rightly, in my view—from the standards of corroboration that are normally required under Scots law.
It will be interesting to find out what emerges from the Scottish Law Commission's report, but I detect no great political appetite for going any further on the rule of corroboration. However, it can be argued that there is a strong case for examining the operation of the Moorov doctrine to establish whether an extension is necessary. At the end of the day, we will always have to weigh up one person's word against that of another. Although the Contempt of Court Act 1981 precludes us from finding out what is in the mind of a properly directed jury when it acquits, there can be no doubt that juries genuinely find the issue extremely difficult to determine. We will see what happens.
The framework in the bill offers a way forward. Many cases of sexual assault involve heavy drinking or the use of illegal substances. People frequently behave unwisely and they sometimes behave irresponsibly, but they are still entitled to the protection that the courts and the Parliament can offer them. The fact that a woman was drunk is not an excuse for her rape, nor is it a mitigating factor. Indeed, in many respects, it amounts to an aggravation of the offence.
The bill seeks to apply the doctrine—if I may use that term—of reasonable belief. The basis of all law is what is reasonable in the circumstances. One person's reasonableness might be someone else's unreasonableness, but the vast majority of people apply sensible considerations when it comes to human behaviour. I believe that the bill's provisions enable that exercise to be carried out.
As the cabinet secretary said, the bill will certainly result in a change in the present culture. There will still be profound difficulties and no one should be under any illusion that the bill will be a cure-all, but it might well change the culture. It will certainly prompt people to think about their actions. In that respect, it must surely be no bad thing.
Part 4 of the bill, which relates to children and the more vulnerable members of society, to whom we have a special duty, caused us considerable anxiety. There was a unanimous and firm belief that the age of 16 should be retained as the age of consent. Despite what people might say of us, we live in the real world and recognise that children are maturing earlier, but there is no case for reducing the age of consent. That we should not do so came out loud and clear in the evidence.
We were concerned about the risks of certain aspects of sexual behaviour; in particular, we had concerns about oral sex, because it can increase the risk of sexually transmitted disease. Again, I am pleased that the cabinet secretary responded positively on that.
We recognise that regrettable and wrong things happen from time to time, but we must also recognise that children growing up will want to have relationships. In the vast majority of cases, their relationships are perfectly innocent and a normal part of growing up.
The committee considered the issue of legality and the possibility of prosecutions. Again, the unanimous view of committee members was that cases should be dealt with on a welfare basis, except the small handful of cases in which a degree of coercion could be demonstrated. We are conscious that, sometimes, the law should not interfere. Sometimes the law requires to get involved, but only in cases where there exists force that cannot be proven as rape, or where the behaviour of one of the parties has been coercive. We certainly did not want a 15-year-old pregnant girl, for example, to be prosecuted. That would be totally unacceptable.
The bill will help. It will introduce a degree of clarity. Quite a number of issues still require to be clarified—the cabinet secretary recognised that in his correspondence—but there is a sufficiency in the bill for the committee to be able to recommend that it should progress.
Again, I record my appreciation of my colleagues on the Justice Committee for dealing with such a delicate piece of work with subtlety and concern. That is a credit to them.
As we conclude our consideration of the bill at stage 1, it would, on reflection, be fair to say that all the parties that are represented on the Justice Committee have made a genuine attempt to ensure that we meet the many challenges that face modern society, particularly those relating to sexual offences. In the short time that is available to me, I will touch on a few of the key issues.
Part 4 of the bill is on children. The policy memorandum states that sections 14 to 19 aim to protect young people. I welcome that. I have no doubt that all members support the public's view that we must ensure that we protect young children at every possible opportunity. Many provisions in part 4 of the bill will do that. We welcome the Government's approach in that respect and its commitment to progressing the issues involved.
We also welcome the cabinet secretary's statement on the provisions in the bill that send out a message to young people that it will be possible to prosecute those aged 13 to 15 who engage in sexual activity. In addition, I welcome his statement that that will happen in a minority of cases and that every opportunity will be sought to use services that are available through the children's hearings system. However, we should ensure that young people are aware that engaging in underage sex presents many long-term health problems and we should seek to prevent those problems at every possible opportunity. We also need to make it clear to young people that we will support them at every possible opportunity.
A short question: how does the member propose to do that?
Margo MacDonald makes a good point. Sometimes we in this chamber have to show humility and say that we are not very good at consulting young people and I am sure that other committee members agree that we need to be more effective at communicating with young people. I assure Margo MacDonald that I will come back to that point later in my speech.
If the Government genuinely wants to make progress, it must ensure that it takes on board some of the views that were raised by those who gave evidence to the committee at stage 1. The Government has got it wrong in its justification for treating oral sex differently from penetrative sex and it should reconsider its position. I understand that the minister will consider that point and I look forward to having constructive discussions.
In response to Margo MacDonald's question, I refer her to one of the committee's recommendations, which was the need for meaningful and age-appropriate materials to be provided to young people in order to support them during the difficult adolescent period of their lives and to give them every opportunity to make positive lifestyle choices. I hope that in his summing up, the minister will give us some assurances that he will consider how we can communicate more effectively with young people and ensure that they are given such opportunities.
Section 35 creates the offence of the
"Sexual abuse of trust of a mentally disordered person".
We on the Labour benches welcome that provision. We all recognise that those who have mental health conditions can be extremely vulnerable. We should take steps to ensure that individuals who are in a position of trust are not provided with an opportunity to abuse. The Lord Advocate offered a powerful statement in her evidence to the committee:
"The exploitation of mentally disordered people's vulnerability must be dealt with in the most draconian way and should include a deterrence element."—[Official Report, Justice Committee, 25 November 2008; c 1438.]
The Lord Advocate's commitment to dealing with the issue is to be welcomed and we should ensure that her point is developed in the enforcement of the legislation after the bill is passed at stage 3.
The committee considered carefully the subject of sexual assault by penetration. We received authoritative evidence from many organisations that deal with victims throughout the country, setting out the trauma endured by those who have been assaulted. The committee reached the unanimous view that there should be a separate offence of rape with an object, or with another part of the body, limited to vaginal or anal penetration. What is key is that the committee recommended unanimously that the offence should attract the same penalties as rape. We acknowledge that such a provision exists in England and Wales and we on the Labour benches call on the Scottish Government to take that recommendation forward, ensuring that we learn lessons from the challenges that England and Wales have faced in that respect.
I refer the chamber to schedule 1 to the bill, which sets out the penalties for offences. As I read schedule 1, it sets out the frightening anomaly that the rape of a child could result in a fine. I am convinced that no member in the chamber, or any sensible person in society, wants to envisage a situation in which an offender was fined for such a despicable act. The cabinet secretary has advised us, in his response to the committee's stage 1 report, that he will ensure that the possibility of imposing a fine as a sole penalty for rape will be dealt with at stage 2 and that under no circumstances will the anomaly apply. I welcome that, and the mature and constructive discussion that has taken place about the matter.
I repeat that we agree with the bill's general principles, subject to the committee's constructive points being dealt with positively by the Scottish Government.
The bill will update the law on rape and other sexual offences. The Scottish Conservatives agree with the general principles of the bill and will vote for the motion.
The bill deals with an extremely complex area of the law. I acknowledge the Justice Committee's hard work on the bill. I am sure that the debate will be as well informed and constructive as was our previous debate on the subject.
In the short time that is available for my speech, I will touch on several aspects of the bill. First, there is no doubt that reform of the law of rape is long overdue—indeed, academics and practitioners have criticised the Scots law on rape for many years. The non-gendered approach that will be taken towards rape is particularly to be welcomed. It is also important to modernise the law of rape. The old common law related the offence of rape to the possibility of conception. Changing the law to take a gender-neutral approach and to include other forms of sexual penetration is entirely appropriate. I welcome the cabinet secretary's comments on that at the start of the debate.
The bill will create a new definition of consent, which has created many difficulties in the past—the McKearney case in 2004 demonstrated some of those. The bill provides a general definition of consent as free agreement and supplements that with a non-exhaustive list of factual circumstances in which free agreement is not present.
In the debate on the Scottish Law Commission's report on rape and other sexual offences, I made the point that introducing a statutory definition of consent would not necessarily solve all the concerns and problems with regard to rape cases. For example, questions about whether the victim gave 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 using the word "consent" altogether and to focus instead on whether the accused had sexual intercourse with a person who did not have the freedom or capacity to choose in the circumstances.
The Justice Committee resisted the pressure to lower the age of consent from 16 and we support its approach. That view is supported by church groups and I am sure that members have received a number of representations along those lines. We must recognise that children are maturing earlier, but there is certainly no case for permitting full penetrative sex between people who are 15 or younger.
It is right that the law should state clearly that sex below the age of consent is wrong and that those who do not abide by the law face legal consequences. We must continue to support the use of the children's hearings system to address offending behaviour by children in most cases. The Scottish Government's decision to retain in the bill the option of criminal prosecution for consensual penetrative sex between older children, at the Lord Advocate's discretion, is appropriate. We as legislators must ensure that nothing is done to water down that important principle or give the impression that the age of consent has been lowered or can be ignored.
The Scottish Government is right to seek to amend the bill's provisions in relation to oral sex between older children who are aged between 13 and 15, to ensure that that sexual act is not legalised for that age group. The risk of sexually transmitted diseases must be borne in mind. We therefore welcome the Scottish Government's moves to address the issue.
I will briefly consider the law of evidence. In the circumstances of a sexual offence or rape, it is inevitable that only two people might have been present—the complainer and the accused. Scots law has long recognised that difficulty and has departed from the standard of corroboration that is normal in serious criminal cases. That is entirely appropriate, but we do not support any change in the law of evidence to specify that corroboration is not required. It is necessary for an accused person to have a defence.
Given developments in forensic science, does the member agree that forensic science might at some point reach the stage at which it, rather than a witness, could provide the necessary corroboration?
I am not sure that that addresses the point that I was making. The accused person is entitled to a defence. We must bear it in mind that sexual assault rightly attracts a high-tariff sentence, so it is only fair that the principle of the presumption of innocence should stand, as should the requirement on the Crown to prove the offence beyond reasonable doubt. I am not sure that anything further can be done to limit that important principle.
We welcome the bill, which goes a long way in clarifying the law. However, we must also be conscious that more must be done to tackle attitudes to women and men who are raped.
I adopt most of the comments that Bill Aitken made, as convener of the Justice Committee, about the difficulties that the committee found with the bill and the Government's approach.
The bill touches on many issues that lie at the heart of human relations. I refer to the protection of children; the changes in sexual experience and attitudes in society, particularly among young people; the high rates of teenage pregnancy and sexually transmitted diseases; the relationships between men and women, and, for that matter, relationships between people of the same sex; the exercise of power and control in intimate relationships; the legacy of sexual abuse in childhood; the deterrence, prevention and punishment of rape and serious sexual assaults; and the concept of sexual autonomy.
The issues that the Justice Committee considered are delicate and difficult. We have brought them to the chamber today by way of our stage 1 report. Not least of our challenges was the fact that sex, which is central to human relations and the continuance of our race, is an entirely legal activity when carried out between consenting adults but an entirely illegal and highly reprehensible act when forced on an unwilling adult victim or a child. When children and young people experiment with sex, we enter into a murky area of huge sensitivity and complexity, great mystery and greater or lesser ignorance.
I welcome the cabinet secretary's acceptance that modern, appropriate and gender-neutral language should be used in the statute. I also welcome his acceptance of the need to get rid of outmoded offences in related legislation. I pressed him on that during our stage 1 evidence taking. His acceptance shows an important recognition of those points.
I will devote the majority of my opening speech to part 4 of the bill, which relates to children. The committee was rightly critical of the SNP Government for not carrying out any exercise to obtain the input of young people. Given that around a third of young people have sexual relations under the age of 16, and given the high rates of teenage pregnancy and sexually transmitted diseases, it is absolutely central that we have an insight into how children and young people view these matters. We need to find out what encourages them to delay or initiate their first sexual experience, what influences them in seeking or failing to seek appropriate sexual health advice, and whether the age of consent influences their attitudes or helps them to resist peer pressure.
Scotland's Commissioner for Children and Young People, and many other experienced people, said that the Government's position on the matter was unacceptable. Frankly, I was surprised and disappointed by the attitude that the cabinet secretary adopted when he was asked about the subject in committee. There can be no question but that, in failing to look for the views of young people, the SNP Government is in breach of the United Nations Convention on the Rights of the Child. I note that Government and committees have taken young people's views on many occasions, such as during the passage of the Additional Support for Learning (Scotland) Act 2004.
The committee's recommendations on the bill are proportionate and compelling. We said that the Government should implement an age-appropriate information and publicity campaign once it had consulted young people appropriately. The Government's response is not adequate: there is to be a campaign, but there is no word that it will be informed by consultation with young people. The Government is getting very experienced at U-turns and, frankly, in this instance, we would welcome one. I hope that I am not being unfair to the cabinet secretary in describing his position on the matter as mystifying and even truculent. He should think again.
Let me re-emphasise the point. Children in Scotland told the committee that "the guidance and practice" should be
"informed by what will actually work with children and young people, because we will know what they are thinking, instead of guessing what they might be thinking or how they might interpret our messages."—[Official Report, Justice Committee, 4 November 2008; c 1265.]
The cabinet secretary and his officials have left themselves guessing on the matter. That is unacceptable in developing the sexual health campaign that must accompany the bill.
There are many questions that the Government should have put to children and young people. Who are the best points of contact? Should contacts be school nurses, counsellors or teachers, or should they be people who are unconnected with school? What is the role of parents? What are young people's dilemmas? In whom do they confide? Is there a role for peer-group discussion? What sort of support and information is best? How are young people particularly those in the most vulnerable groups, encouraged—rather than deterred—to seek help and advice? How do they view the idea of a legal age of consent?
The Justice Committee is strongly of the view that the age of consent for sexual intercourse should remain 16. I agree with that. Sixteen as the age of consent is a well-known, widely supported and long-established restriction. It is an important reference point that most people feel helps young people to resist peer pressure. There are also good social, developmental and health reasons for its retention. As Dr Jonathan Sher from Children in Scotland said:
"No one argues that underage sexual intercourse is a good thing—it is not".—[Official Report, Justice Committee, 4 November 2008; c 1264.]
In reality, however, it appears that a substantial proportion of people have sexual intercourse before the age of 16. Many more, of course, kiss, cuddle, touch and experiment, and most of that activity is entirely normal, consensual and legal. Young people have rights to privacy as well, and we emphatically do not want police investigations into much of that activity. That is why the committee strongly supported taking a welfare-based approach to addressing underage sexual activity where that is necessary to safeguard young people's health and wellbeing.
Sex between an adult and a minor under 16 should, of course, remain illegal and should be prosecuted, subject to limited defences. Many people argue that all cases involving sexual relations between young people of 13, 14 or 15 should be dealt with by the children's hearings system, and I have a lot of sympathy with that, as did other members of the committee. However, the committee decided that such behaviour should be examined as part of the wider examination of the age of criminal responsibility. Of course, a ground for reference to the children's hearings system will be triggered anyway if there are thought to be welfare concerns.
A key principle of the bill is the theme of gender equality, which of course I support. However, the consequence is that the participation of girls in sexual intercourse, which is currently not a criminal activity, is made so under the bill's proposals. I am not wildly keen on a proposal that criminalises people for the sake of a general proposition. Like the Commissioner for Children and Young People, I do not accept the Government's position that that concern can be struck down because there is ample scope for distinguishing between the consequences for boys and the consequences for girls, not least in the prospect of an unwanted teenage pregnancy. It is true that that does not apply to same-sex relationships or to oral sex, but it still seems to me to be a questionable logic that unnecessarily criminalises young girls as a by-blow of such arguments.
The bill is important, but there are important caveats, which I hope the minister will consider further. The committee will continue to debate many issues with the Government as we move to stage 2. Nevertheless, the bill is important, necessary and non-partisan, and I urge the Parliament to support it at stage 1.
First, I pay tribute to the Justice Committee's clerks and adviser for all their hard work and efforts during our stage 1 consideration of the bill. I concur with the convener's comments about the way in which the committee dealt with the sensitive issues that the bill throws up for everyone. I am sure that the committee and all members will continue to act accordingly as the bill proceeds in the weeks and months ahead.
As others have said, the bill was originated by the previous Labour and Lib Dem Scottish Executive. I pay tribute to it for doing so. I am sure that colleagues know that I do not usually praise the previous Executive. However, I give praise where it is due: its instruction to the Scottish Law Commission to examine the law relating to rape and other sexual offences was certainly a worthwhile action. When the bill is passed, as I hope it will be, Scotland will possess a piece of legislation that provides greater protection for all of society.
I congratulate the Scottish Government on continuing with the process that was set in motion by the previous Executive. I am sure that the Cabinet Secretary for Justice will be hoping that the end result of the bill will profit the nation.
I will not be able to discuss all the issues that I think are important within the time that has been allotted to me, but I will touch on a few of them. First, I have to say that listening to and reading the evidence has taken me on a personal journey. Previously, I had a personal view on one issue in particular, but our stage 1 scrutiny of the bill altered my view. I believed that anyone under 16 who participates in sexual activity should be charged automatically and that legal proceedings should follow. Whether they became pregnant or not was irrelevant. As 16 was and will remain the legal age of consent, why should those under-16s who break the law be protected? I was aware that the children's hearings system deals with the vast majority of those cases and that the Lord Advocate can prosecute at her discretion, if appropriate. My opinion was that there were not enough prosecutions. Thankfully, my view has changed, not because I have become more liberal or less pious, but because the evidence that was presented was extremely strong.
Paragraph 273 of the Justice Committee's report supports the use of the children's hearings system for the vast majority of cases, with the Lord Advocate retaining her discretion in that regard. I think that that recommendation will benefit society.
The last thing that I want to see is a number of people in our society becoming saddled with a criminal record when a more appropriate way of dealing with them would be beneficial. I also came to the conclusion that if a girl aged under 16 becomes pregnant, the last thing that she needs is to be marched into a courtroom, with all the pressures that that involves. She will need some other mechanism to assist her and the baby.
Another aspect of the bill that I welcome—as did the committee—relates to gender neutrality. Paragraph 279 of the committee report was quite clear in its support for compliance with the ECHR, while noting the important evidence from the Lord Advocate that a different path from the one in the bill could be taken if that was justified.
I am sure that committee members will debate further the Scottish Government's response to paragraphs 280 and 281 as the bill proceeds—Bill Butler touched on that earlier. Having read the Government's response, I am keen to hear the cabinet secretary address those paragraphs today. I was intrigued by the written response that he provided, but I stand by the recommendation
"that the Scottish Government gives further consideration to the provisions of section 27 of the Bill."
Widening the definition of rape is an important aspect of the bill. The committee recommended that there should be a separate offence of rape with an object. I welcome the cabinet secretary's response to the recommendation and his intention to have further discussion with the committee and to lodge amendments at stage 2. The important point for me is that an object could cause more damage to a person than a body part could. I accept that a sexual offence would still have been committed, but, given the even greater physical damage, as well as the psychological damage, that would be done, I find it difficult not to believe that the strongest possible label should be given to those who perpetrate such acts.
I want to introduce a personal thought into the debate. Life imprisonment seems to be a sentence of approximately 15 years, whether for a rape or for some other act. I would like that tariff to be increased for those convicted of rape. Violating a person's body must be the most despicable thing that one person can do to another and, as such, it deserves to be punished by means of a long prison sentence.
Having sat through all the oral evidence sessions and read the paperwork on the bill, I am in no doubt that the bill should proceed through the Parliament. I am also in no doubt about the difficulties that all members in the chamber will have to deal with concerning some of the issues that the bill raises.
I remind myself of a few key points when I think about the bill. First, I want justice to be done, and to be seen to be done, for victims of rape and other sexual offences. Secondly, I do not want to criminalise every young person who starts to experiment as they go through the growing-up process, but I do not want them to think that it is okay to indulge in underage sexual activities. Thirdly, I want young people to have sex education, via schools or health professionals. There has to be an understanding of the consequences of sexual activity: child parents, for example, sexually transmitted infections and law breaking. Fourthly, with rights come responsibilities. If adults cannot act responsibly, their right to liberty should be removed. Therefore, are the proposed sentences really high enough? Given that research from Children 1st shows that around 30 per cent of Scots have sex before the age of 16, I have to query why society is failing in its responsibilities in that regard. I agree with the Catholic Parliamentary Office that
"the sexualisation of young people in our society is a problem".
I am sure that the bill will go some way towards achieving a better and safer Scotland. For that reason, I support it whole-heartedly.
I thank the clerks to the Justice Committee and all the organisations that engaged with the committee as we considered the bill. Our report truly reflects the evidence that we received, and our conclusions and recommendations were agreed unanimously.
I am happy to support the general principles of the bill and I agree with the cabinet secretary about the real need to change attitudes in Scotland to rape and to women in general. I welcome his acknowledgement of the need to strengthen the law and his commitment to a collaborative and consensual approach to the sensitive issues that the bill raises.
However, I question the Government's response to a number of areas that were raised in the committee's report. Scotland needs a clear definition of rape, in the hope that a more realistic prosecution rate can be achieved by ensuring that sound cases are put before juries. I am constrained by time in the debate, so in the few minutes that I have I will highlight areas about which I have outstanding concerns.
During its stage 1 consideration of the bill, the committee heard evidence about rape with an object—many members have mentioned that. It is a difficult area, but I strongly believe that a separate offence of rape with an object should be created. The bill sets out the offences of rape, which is penile penetration, and sexual assault, which includes non-consensual penetration by an object. I think that in the minds of the general public and jurors sexual assault often seems a less severe offence, which merits a less severe punishment than rape does. However, an individual who is raped with an object suffers just as much mentally and can sometimes suffer more horrendous injuries. Rape with an object is a serious crime. I welcome the cabinet secretary's commitment to consider the matter further with the committee and I hope that the Government will lodge an amendment at stage 2 on the issue. If penetrative assault with an object is rape, we should legislate in those terms.
The committee heard vivid evidence from Louise Johnson, from Scottish Women's Aid. She told us how the women with whom she deals want the law to differentiate between sexual assault and rape with an object. She said of penile penetration and penetration with an object:
"When someone's personal integrity has been transgressed and abused by someone else in either of those ways, the trauma is equal."—[Official Report, Justice Committee, 28 October 2008; c 1222.]
I ask the cabinet secretary to accept that evidence.
I am concerned that the Government's response does not address concerns that were expressed to the committee by organisations that provide sexual health information to people who have a range of disabilities. People who work with learners who use tactile communication deserve clarification on the bill and we are duty-bound to ensure that they receive clarification. Further consideration should be given to the needs of people who have learning difficulties. Threats to harm a pet or deprive someone of a treat might seem trivial to some of us but are real and serious to some individuals. I do not accept the Government's response on the matter and I ask the cabinet secretary to think again.
Part 4 deals with children and young people. I remain convinced that sexual activity by young people who are under 16 is of concern; I do not think that sexual activity by 13 to 16-year-olds is appropriate. From the evidence that Children 1st provided, we know that about 30 per cent of Scots have sex before they are 16. That means that sex in that age group is not the norm, although it is common. Children 1st said that its research shows that some young people's early sexual experiences are problematic and place them at risk. That is understandable and is borne out by the vast majority of evidence.
I have given my views. It is unfortunate that the committee was not able to hear young people's views on how this major bill will affect their lives, and it is disgraceful that young people were not consulted on the proposals. The views that the committee considered came mainly from adults, who do not always know best. An information and publicity campaign would be welcome, but I doubt that any other group in society would be consulted only after a bill on important matters that affected them had been enacted.
Scotland's Commissioner for Children and Young People, whose role is to promote and safeguard the rights of children and young people living in Scotland, has serious concerns about the effects of the proposed legislation on young people. Her views must be taken seriously by the cabinet secretary, and I refer him and his officials to the submission that the commissioner made to members today.
How am I for time, Presiding Officer?
You have another minute.
Thank you.
The Justice Committee asked the cabinet secretary to give further consideration to the provisions in section 27. I do not believe that it is in the interests of young people who are under the age of 16 to engage in sexual activity, given the many implications for their future relationships and health. I am concerned about the omission of oral sex from section 27, given the often serious health risks.
On the criminalisation of young girls, I do not think that any of us here would wish to criminalise young people, and I strongly believe that we should be ensuring that welfare interventions, rather than criminal interventions, take place. I ask the cabinet secretary to reconsider the point about young girls and the way in which the issue of gender neutrality has been treated. There are differing views, and we could put up a strong argument for retaining the law as it is if we wanted to.
There is a difference. Young men do not become pregnant; young men do not have responsibility for another human for the rest of their lives; and young men do not get ovarian cancers and all the dangers that they bring. There is an argument for dealing with the genders differently.
That minute is now up.
Thank you for your indulgence, Presiding Officer.
I thank the Scottish Law Commission for its original piece of work. We have talked about a great number of the details, and the bill largely sticks with the commission's original text and most of its meaning. Although we disagree on one major point, on the criminalisation of consensual sex between older children, I am grateful to the commission for giving us a framework within which to work. It has been acknowledged that the subject is not easy to discuss, and a good framework is a very good place to start from.
I note that the bill is largely a consolidating one. Paragraph 9 of the policy memorandum points out that the bill will, largely,
"improve the clarity and consistency of the law."
Specifically, the bill includes
"the definition of consent as ‘free agreement'"
and makes provisions about "‘honest' belief in consent". However, paragraph 10 of the policy memorandum says:
"despite such improvements, reform of the substantive law on rape and other sexual offences will not, on its own, be sufficient to improve Scotland's low conviction rate for rape. That is why work is underway on a number of other fronts".
It is important to recognise that that other work must continue. The Scottish Law Commission is examining the law of evidence, and of character evidence in particular, as well as the Moorov rule. I encourage the Scottish Law Commission to proceed with its work as fast as is reasonably possible. I am not suggesting that it is slow, but the faster we can amend the law and, in particular, the faster we can get the Moorov rule back before the courts as a working hypothesis, the better for those rare occasions when that consideration is really important, which tend to be very serious cases.
Like other members, I wish to address issues around older children. It is in that area where we seem to have disagreed with the Scottish Law Commission's report, for one simple reason: we have inherited a law that states that boys who have underage sex are committing a criminal offence. Had we not started from that position, I am not sure that we would have finished in the present one, but that is where we started. We have not wanted to decriminalise such activity simply because that would have sent entirely the wrong message. I am not sure whether, if we started from a position where that activity was not criminal, we would want to criminalise it—that, too, would probably send the wrong message. We need to be very careful about where we are coming from when we consider what it is that we are suggesting.
We heard evidence from the British Medical Association and from Barnardo's and other organisations that represent children that, one way or another—I take Robert Brown's point on this—we should decriminalise. Those organisations should understand that uppermost in the minds of Justice Committee members was the point that I just made about where we started from.
The committee also made a recommendation on oral sex, and I note that the cabinet secretary's response is that he will consider the issue, which I understand and respect. I add my personal voice to the suggestion that he should consider it positively. Some medical evidence supports the recommendation and, if we are making a law that is essentially a backdrop against which our youngsters will conduct themselves and which we know will not normally be pursued rigorously through the courts, it is important that we send the right, complete message. Putting oral sex back into that backdrop seems to be part of a consistent message about what is wise and what is not.
There has been some discussion of section 39 and the defences for people involved counselling. I know that some are concerned that section 39 might provide a defence for those who would incite underage sex. However, it is clear from the text of the bill that that is not the case. That might be one of the good reasons for retaining the criminal offence of underage sex. In the by-going, it means that inciting underage sex is a crime, and we, as a Parliament, would want to support that. There is far too much pressure on our youngsters to become sexually active. I think that people in the media take a cavalier attitude. If they reflected on the fact that incitement is a criminal offence, will remain a criminal offence and will be a gender-neutral offence, they might also reflect on what they sometimes suggest in the messages that they give our children.
I am curious to know whether Nigel Don has any information about the extent to which the charge of incitement has been used by the Scottish courts in recent years.
I have no evidence at all, and I suspect that there might have been no such charges. However, extending the law and making it gender neutral makes Parliament's thinking clearer and clarifies the law of the land, and is therefore what people in the media should reflect. Perhaps that is part of the message.
We should also recognise that the law is not going to change what our youngsters do: we all know that, and we might just as well say so. If we are to change youngsters' attitudes to the risks that are inherent in early sexual activity, education is the key. I am quite clear that, in itself, education does not change behaviours, but educating young people is essential if we are to make any progress at all.
I leave members with the thought that we need to change the law. I could have discussed many other things, but we do not have time. Educating youngsters appropriately is the key; without that, we will achieve very little by changing the law.
We now move to winding-up speeches, for which I can give members about a minute more than they might have been expecting. I call Robert Brown, who has seven minutes.
I am somewhat surprised to be called so soon, Presiding Officer.
All your Christmases have come at once.
Indeed.
In my opening speech, I said that the bill is delicate and difficult, and the debate has been handled sensibly by those who have taken part. In opening, I focused on the issues that affect young people and, in closing, I will look at more general matters and respond to one or two points that have been made by colleagues. I also want to make a couple of points about children that I did not have time to make earlier.
The particular issue that I want to put to the cabinet secretary concerns children ending up on the sex offenders register, although he has responded to that point to a degree. The Government probably needs to go further and hold an expert review and public consultation. It is quite a complicated area, and I do not pretend to understand all the implications. I suspect that that is the case with my committee colleagues as well. I accept that there are rare cases involving minors where registration would be appropriate, but I am not entirely satisfied that the brief review to which the letter from the Government referred, which I assume has been carried out in the few weeks since the stage 1 report was published, is adequate.
I have a comment about some marginal matters. The committee expressed concern that kissing and other such behaviour should not be the subject of potential interference from the police. It is worth making the point, which the bill—rightly or wrongly—emphasises, that the Lord Advocate and procurators fiscal are the gateways to prosecution. That is right, as we have an independent prosecution system. The prosecutor has a broad public responsibility—I have some experience of that, as I was a procurator fiscal depute some years ago—which has normally been exercised sensibly. It is probably the principal barrier to trivial or unnecessary prosecution in such cases, which was a concern to the committee.
The Lord Advocate put it well when she said:
"We imbue … the Lord Advocate and her representatives … with the discretion to interpret the public interest"
in making decisions on prosecution in the light of broader social views. That is a more broadly applicable point. She gave a good example when she said:
"A case involving the scenario of a 12-year-old touching another 12-year-old would never see the light of day in the criminal courts."—[Official Report, Justice Committee, 25 November 2008; c 1432, 1427.]
She is right to illustrate that point.
The bill began with a report by the Scottish Law Commission. Nigel Don referred to the good work that the commission did, which has largely survived in the bill. It was asked by the Scottish Executive of the time to examine the law on rape and other sexual offences and the evidential requirements for those offences. A major part of the motivation was concern about the low conviction rates for sexual offences but, in the event, the commission did not really make recommendations on the evidential matters on the basis that they should be considered as part of a review of the general law of evidence, as a number of members have mentioned.
However, I emphasise the point that I made in my intervention on the cabinet secretary, which was that the conviction rate for rape and other similar offences in Scotland is, as the Lord Advocate confirmed, pretty similar to that in other parts of the world. Indeed, in recent years, the conviction rate for rape cases that went to court has varied from 45 to 67 per cent. The issue is more to do with underreporting, having insufficient evidence to pursue cases to court in the first place and reluctance on the part of some complainers to subject themselves to the embarrassing and difficult procedures that are involved in providing the evidence on such cases. As the Lord Advocate mentioned in her evidence, the offence that is known as date rape presents particular challenges, possibly within the context of an otherwise consensual sexual relationship.
A number of members talked about adding a new offence of rape with an object. I support that. Although I accept some of the caveats about whether juries will convict on it, I also support the use of the word "rape" because juries that are properly instructed by the judge on such matters will understand exactly what is being talked about and will understand that "rape" implies the seriousness of the offence as well as the generic description of it. That is an important aspect on which I concur with the committee's view.
There was a lot of discussion about what constituted consent, particularly when the victim—usually a woman—is asleep, unconscious or heavily intoxicated and, therefore, cannot give immediate, active consent. Such situations have been crimes in Scots law since at least the middle of the 19th century, but defining them in statute is quite challenging. The committee asked the Government to reconsider the concept of prior consent, which seemed to be highly artificial. However, we must bear it in mind that we are dealing with a criminal charge that is not only serious but, in the case of rape, so serious that it is prosecuted in the High Court.
I do not like the concept of prior consent, but I am not prepared to say that sex with a person who is unconscious through drink is necessarily a crime in every circumstance whether committed by a stranger, partner or spouse, albeit that the victim may regard it as such. The issue is ultimately consent or the lack of it. As Professor Gerry Maher put it:
"Scots law should spell out that having sex with a person who is unconscious or asleep is rape or sexual assault, except in one defined circumstance—when they have consented to having sex in that state."—[Official Report, Justice Committee, 18 November 2008; c 1365.]
However, not even he pinned down the matter entirely. Under our legal system, the jury—with, one hopes, a robust dose of common sense—will ultimately decide whether there was any express, implied or reasonably assumed consent in such difficult situations and will do so using its joint knowledge of life and the human condition.
Cathie Craigie was right to mention people who advise or counsel those with communication difficulties and the problems that tactile communication can present. That bears further exploration. There does not necessarily need to be an amendment to the bill on that, although I do not rule it out, but we must consider the matter carefully to ensure that we do not accidentally criminalise something that should not be criminalised.
Nigel Don, in his usual esoteric fashion, gave us a number of interesting thoughts about where we were coming from on the age of consent and the effect of the law on that. Neither I nor, I think, most members of the committee entirely accept the proposition that what the law says will not have an effect on what youngsters do. Education, however, certainly is key. Advice and information and the question whether people are deterred from doing something by its criminality are important issues with which we must deal.
Since 1999, I have learned that struggling with definitions and passing well-honed legislation is important, but what goes with the bill and the cultural changes that the bill spearheads are even more important. The bill marks much cultural change in relation to attitudes towards same-sex relationships, respect for sexual autonomy, the attitudes and actions of young people and the support given to victims and complainers. We still have a bit of work to do on the bill and the Government must reflect on what has been said on it. However, my plea to ministers is that they seek effective input, particularly from young people, to help them in their important task.
Like everyone who has spoken in the debate, I very much welcome the introduction of the bill, particularly the following key aspects. Part 2 contains the definition of consent as "free agreement", which brings a clarity to the law that is absent at present under common law, despite the fact that the absence of consent is a core element of the actus reus and mens rea of rape. Under current common law, rape involves penile penetration of a woman's vagina without consent, so it is a huge improvement that the bill extends that to include other forms of penile penetration, bringing it in line with legislation in England and Wales. The cabinet secretary's announcement that provision will be made at stages 2 and 3 to go further and include penetration with an object in the list of forms of penetration that the bill covers is also welcome. Cathie Craigie made a particularly powerful contribution on why that should be included as rape. The introduction of rape as a sexual offence that is no longer gender specific is long overdue and rectifies the injustice that, under common law, rape is recognised as a criminal offence only when it involves male sexual intercourse with a female without consent.
Parts 4 and 5 have provisions to deal with protective offences that are, sadly, very much evident in today's society, as a number of speakers pointed out. I am therefore pleased to see the protection that the bill will afford the vulnerable through the introduction of new protective offences that will criminalise sexual activity with someone whose capacity to consent to sexual activity is either entirely absent or not fully formed because of their age or a medical disorder. With Paul Martin and Robert Brown, I particularly welcome the introduction of the offence of sexual abuse of trust in section 31, which seeks to address that heinous betrayal, abuse and manipulation by providing that it is an offence for anyone over 18 to engage intentionally in sexual activity with someone under 18 in respect of whom the older person is in a position of trust.
Section 32 sets out five conditions, any of which satisfies the definition of being in a position of trust. It is to be hoped that that will give more protection to children and young people and those with mental disorders who are institutionalised or vulnerable through a family relationship. I also welcome the provision that gives Scottish ministers the power to make an order under the negative resolution procedure to specify, as they materialise, other conditions that constitute a position of trust, especially in view of the fact that the submission by the Association of Chief Police Officers in Scotland highlighted that young people in accommodation provided by a local authority who are at least 18 but not yet 21 would not be covered. That group of young people is potentially vulnerable, so I hope that the ACPOS submission will be given further consideration.
Although trafficking is not covered in the bill, section 10 provides, as one of the circumstances in which conduct takes place without free consent, that there is no consent if the only expression or indication of the victim's consent to sexual activity is from someone other than the victim. That is precisely the situation in which many trafficked women and, indeed, children find themselves.
Part 4 contains provisions that would lower the age of consent for oral sex. As several members have pointed out, that is the issue that has generated most controversy—and rightly so. Although it is true that young people are maturing earlier, there can be no case for permitting sex involving persons of 15 years or less. The Scottish Conservatives are very supportive of the committee's stance on that issue.
In that context, I read with interest the BMA's arguments in favour of decriminalising such activity in light of concerns that older children might otherwise be reluctant to come forward with any sexual health problems. I understand the well-intentioned reasoning behind that position, but I believe that lowering the age of consent would have the opposite effect by giving rise to a potentially far greater number of sexual health problems among young persons. With Nigel Don, I believe that education has an important role to play in that.
Finally, the prosecution of rape and of other serious offences has traditionally been dogged by myths and prejudices, which often surface in the courtroom during the giving of evidence and invariably involve the victim's character. I sincerely hope that the statutory definition of consent as "free agreement"—together with the provision covering reasonable belief and coupled with the reasonable person test that is to be applied—will help to correct those prejudices. However, as Bill Aitken and John Lamont emphasised, any such correction must not be at the expense of an attempt to water down the presumption of innocence or the requirement for corroboration, given that the accused may be facing a high-tariff sentence for what are, without doubt, some of the most serious crimes in Scots law.
With those comments, I believe that the bill strikes the right balance. The Scottish Conservatives have much pleasure in supporting the bill at stage 1.
In ensuring that Scotland's laws on sexual offences are reformed, the Scottish Government is moving forward with broad support. We are happy to endorse the general principles of the bill.
As Stuart McMillan said, the previous Scottish Executive asked the Scottish Law Commission to examine the law relating to rape and other sexual offences and the evidential requirements for proving such offences. I welcome the fact that the commission's recommendations have been taken forward by the Scottish Government in the bill to ensure that our sexual offence laws provide clarity and reflect the circumstances of Scotland today. I echo the comments of others about the good work that the Scottish Law Commission has done, which informs the bill that is before us.
As someone who was not a member of the Justice Committee but who was an observer of its proceedings, I congratulate the convener, deputy convener and members of the committee on their thorough scrutiny of the bill. The bill process has benefited immensely from the way in which the committee ensured that so many who have expertise on the issues played a full role in giving evidence at stage 1. That was Parliament at its best in developing legislation. Clearly, that work is reflected in an informed stage 1 report that provides constructive and sensible proposals. I believe that the Scottish Government's response to the committee's report is indicative of the constructive dialogue on the bill that ministers have had with the committee, which has been reflected in this afternoon's debate.
The debate has also shown that the bill deals with difficult issues relating to what can be a challenging relationship between the law and sexual activity. The need to foresee as wide a range as possible of scenarios and cases seems to me to be at the centre of some of the discussion over terminology and definition. It is right that those matters will continue to be discussed as the bill progresses.
Of course, there is still concern about the conviction rates for rape. In her evidence to the committee, the Lord Advocate rightly pointed out:
"There is no panacea for the low conviction rates for these types of crime."—[Official Report, Justice Committee, 25 November 2008; c 1408.]
She also said that the bill is not about improving conviction rates specifically. In its briefing for the debate, the Law Society of Scotland is right to say that the bill, in itself, will not resolve any of the apprehended difficulties in the low conviction rate for rape cases. A number of different, additional measures will indeed be needed, which is a point that the cabinet secretary made in his speech. The Law Society is right to call for further detailed research into the whole system of investigation, prosecution and consideration of verdicts. In its response to the committee, the Scottish Government has said that it will carry out further research into attrition in rape cases.
Robert Brown highlighted the problem of getting complaints of rape into court. His point is borne out by the statistics. Rape Crisis Scotland informs us that, in 2006-07, 942 rapes were reported to the police. Of those, 65 cases were prosecuted, and there were 27 convictions for rape. I do not think that anyone reflecting on those figures will feel at all comfortable. It is important that research is carried out into what lies behind such figures. A package of measures is required to address the issues.
The Lord Advocate pointed out that, under the current legal framework, juries have a narrow notion of what rape is. We are now widening the definition of rape. That must be understood. In the continuing education campaigns on these issues, to which the cabinet secretary referred, work must be done on wider issues such as women's rights, but work must also be done so that the public understand that rape will no longer be the narrow crime that it was before the bill. I hope that ministers will not only make progress with such work but update Parliament on that progress—and on the wider work that the Government is doing, beyond the bill, to ensure that rapes are reported and effectively prosecuted.
The Scottish Government has asked the Scottish Law Commission to review aspects of the law of evidence, and I took on board the points that Conservative members have made today. Those aspects of the law will have a bearing on the issues that we are discussing today, and I echo what Nigel Don said. We look forward to discussing the Law Commission's review.
In the debate, members have discussed the issue of consensual sexual relationships between 13 to 16-year-olds. It was clearly an area of considerable debate in the Justice Committee. We have broadly taken the position of reflecting the status quo, so that flexibility remains with the Lord Advocate. However, as Bill Aitken said, it would be expected that prosecution would remain a very exceptional circumstance. The restatement in the bill of existing statutory provisions is superfluous, but it emphasises that point.
The cabinet secretary was right, in his response to the committee, to say that he will give further consideration at stage 2 to the committee's concerns over the exclusion of oral sex from the provisions of section 27. I share the concerns that other members have expressed.
The welfare issues that have been raised in relation to this area of the bill, particularly by many organisations working with children and young people, need to be addressed beyond the bill. It will be important to implement the committee's recommendation that multi-agency co-operation should provide effective support to children involved in underage sexual activity. The cabinet secretary has expressed support for the recommendation.
Education campaigns will be vital. As Robert Brown and Cathie Craigie said, such campaigns should be informed by consultation with young people themselves. Such measures are particularly important with regard to the issues that Cathie Craigie has highlighted, where pregnancy is involved. Such situations have to be handled appropriately, with support provided for the prospective mother.
These issues are not easy, and they will require further consideration. However, Bill Aitken made clear the committee's intention, and Cathie Craigie's points require careful consideration. The intention should be given effect.
The other major area of continuing discussion is on the committee's proposal for a separate offence of rape with an object. Rape Crisis Scotland has instead called for a separate offence of sexual assault by penetration. It is clear that the committee's proposal comes from a desire to see effective prosecution of this serious crime. Scottish Women's Aid has argued that this crime is different but equally severe. I know that the committee gave the issue very serious consideration before arriving at its conclusion on the most effective way to proceed in order to ensure that such offences were appropriately prosecuted. Paul Martin referred to that. I am pleased that the cabinet secretary has emphasised that he wants to achieve consensus on the issue. That is the right way in which to proceed.
Further consideration is required in a number of areas, such as prior consent, and historical abuse and threats. The committee has also stated that trafficking for sexual exploitation is not a matter for the bill. Margaret Mitchell referred to that. However, we know how important the issues around sexual exploitation as a result of trafficking are, which have been raised at stage 1. We had a constructive members' business debate on the issue, on a motion that was lodged by Murdo Fraser, in which the Minister for Community Safety indicated that the Scottish Government would do further work on the issue.
It is clear, from its constructive response to the committee in general, that the Scottish Government is considering all the arguments carefully with a view to producing legislation that we can all agree is designed to be as clear and effective as possible. We are glad to support that approach. We are pleased to give our support to the bill to ensure that we have the best possible legislative framework for tackling these most serious issues and crimes.
This has been a consensual debate. Most, if not all, debates in the chamber are more hotly contested—indeed, Thursdays, with First Minister's question time, are usually more rumbustious, but this debate has shown the Parliament at its best. We recognise that there is a significant problem, which was flagged up by the Lord Advocate and correctly remitted to the Law Commission by the previous Administration. Now, the Government, the Justice Committee and the Parliament as a whole are considering how we can get matters right.
It is accepted—Richard Baker mentioned that the issue was raised by the Law Society—that the bill alone will not necessarily deal with some of the more shameful aspects that still exist in our society, which are driven by attitudes. Further legislative changes will be necessary; nevertheless, the bill is a start. It builds on what was done before and the fine work of the Law Commission.
I wonder whether the cabinet secretary will address one of the Law Commission's recommendations that the Government has chosen not to act on—the recommendation to decriminalise sadomasochism. I understand the Government's desire not to create a defence that could be misused in cases of assault or domestic violence, but what other approaches have been considered, bearing in mind the rights of those who freely consent to sadomasochistic sex? For example, would it be appropriate for the Government to issue guidance specifying that prosecution would not be appropriate when consent is uncontested?
No, I do not think that it would be appropriate for the Government to issue guidance. Such matters are dealt with through the Crown and the Lord Advocate. The Government's decision was based on the clear advice of a variety of organisations and, in particular, the Lord Advocate that such a measure would be misused by those who would make spurious defences after perpetrating heinous attacks on people.
We have discussed a variety of issues, including consensual sexual relationships between 13 to 15-year-olds. The Government disagreed with the Law Commission's proposal, and I welcome the comments on the issue that have been made from all parts of the chamber. It is important that we make clear the possible health consequences of such relationships and the view that, as a society, we cannot justify or condone the actions of those who seek to have consensual sexual relationships between the ages of 13 and 16. Furthermore, anybody who seeks to have such relationships in a manner beyond consent will be most vigorously treated. Equally, we must recognise the fact that such individuals are children who, in the main, will act misguidedly. The comments that have been made by members are, therefore, welcome. When the Crown considers whether such matters should be dealt with by the children's panel or through the courts, the Lord Advocate and other law officers will have to take account of what has been discussed and debated in Parliament.
I welcome the general acceptance around the chamber that we, as a society, must send out the message that the age of consent is not being lowered. There are good reasons for setting the age of consent at 16 to protect our youngsters. Nevertheless, in the main, when youngsters participate in sexual activity for a variety of reasons, unless there is some good reason, we should not seek to prosecute them.
I am concerned about a possible unintended consequence of section 17:
"Causing a young child to be present during a sexual activity".
Would that not criminalise a young couple with a baby in a one-bedroom flat?
Such a situation could come about, as the committee convener has commented, but nobody seeks to deal with the unintentional consequences of those circumstances. We are talking about circumstances in which there is a flagrant abuse. It is important that we put on the record the fact that Parliament seeks to deal with those who would act in an entirely inappropriate way that would be an abuse of a child, as opposed to circumstances that are regrettable but may come about. Those matters are dealt with by the sound common sense and judgment that is exercised not only by the Lord Advocate and the Crown, but by police constables and regional procurators fiscal day to day.
I am intrigued by the cabinet secretary's statement that the object is to protect our young people, which is why the age of consent will be maintained at 16 years. The statistics for sexually transmitted diseases and unwanted pregnancies are much lower in continental countries, which have lower ages of consent.
It is accepted that we have a significant problem in Scotland, but we have to accept that although some steps are being taken through legislation, other matters require information and action through a variety of other measures, some of which are not governmental but relate to health boards and other bodies. The problems that we face such as unwanted teenage pregnancies and relationships between youngsters cannot be resolved simply by legislation.
It is clear that Parliament does not seek to lower the age of consent, but nor do we wish to criminalise youngsters who are acting in a manner that we think is inappropriate. I think that all members accept that, to protect our youngsters, we have to do better to try to change the patterns that have grown up.
With regard to the question of rape with an object, which was raised by Bill Aitken and Cathie Craigie, the Government accepts that there has to be action. We want to ensure that all members in the chamber wish that action to happen, and that it is correct. It is clear that there are some differences between the Crown and some agencies, including Rape Crisis Scotland, about what should be done. I reiterate that I am happy to sit down with the Justice Committee to ensure that we get the appropriate law.
The phrase about legislating in haste and repenting at leisure is sometimes used. We want to ensure that the committee and the Government sit down and bring in what we feel is appropriate to ensure that we deal with the matter. Nobody disputes that certain circumstances occur that are heinous and have to be punished, but we must ensure that we get the correct legal position and statutory protection.
The Government has said that it is happy to listen to the clear will of Parliament on the matter of oral sex. We have heard from members on all sides of the chamber a desire for action to be taken on that point, and I tell the committee that we will seriously consider the recommendation and seek to bring it forward.
The issue of gender neutrality that Bill Butler raised relates to the matter that was raised by Bill Aitken, Robert Brown and others: one of the purposes of the bill is to attain gender neutrality to deal with male rape and other such matters. That is understandable, but the bill does not simply address male rape; we live in a world in which we have to recognise that the ECHR exists and that we have to deal with matters in a more gender neutral way.
Cathie Craigie is correct to say that the consequences for young females are significantly different—a lot of that comes down to common sense. We are happy to share with the committee the advice that we are allowed to disclose—the clear advice that we have received is, as I said, that we require gender neutrality when we live in the world of the ECHR. That does not, however, detract from how we implement the legislation and—
Will the member give way?
I am sorry, but I am in my last minute.
Paul Martin was correct to raise the issue of fines for rape—it has been, to some extent, a lacuna in the drafting of the bill. We have made it clear that we are intent on ensuring that any gap is closed. I remind Paul Martin that nobody has ever intended to impose a fine for the crime of rape; the provision was intended to deal with a wealthy person who commits a heinous crime of rape by not only imposing the criminal sentence and the period of imprisonment they merit, but taking their assets away. Not only the poor perpetrate the crime of rape; the wealthy do, too. The Government will ensure that if people have the assets, we will take those from them under the proceeds of crime legislation. If they perpetrate the crime of rape, they face a criminal and jail sentence in addition to a fine if they have the wherewithal.
We are grateful to the Parliament for the consensual way in which it has considered a bill that deals with an extremely difficult issue. Legislative change on its own will not deal with some of the significant problems that we face, such as those to do with the health of our youngsters, which Margo MacDonald mentioned, nor will it necessarily change attitudes, but legislative change is necessary and I believe that it will drive cultural change. We are on a journey. I reiterate that I will work with the Justice Committee in due course.