Chamber and committees

I was first alerted to this issue at a cross-party evening meeting. Some of the other committee members were also in attendance. I learned things that I knew nothing about. Professor White, you talked about the physical impact. I remember a statistic that I heard that night: after six seconds of strangulation, a person can lose control, become incontinent and experience lots of other physical issues, which can be permanent. You have mentioned lots of other physical issues. It is serious.

I want to ask you about something that concerns me. Both Fionas have outlined the impact that strangulation has on victims, and Fiona McMullen mentioned it being a red flag for domestic abuse. More alarming to me is that it was found in a recent survey that

“Over a third ... of 16-34 years reported being strangled/choked at least once during consensual sex”

and that half of those young people said they had consented to it. All the data from that age group is showing that they do not see themselves as victims, because it has been consensual. I think that 27 per cent said that it was “sometimes agreed” in advance.

That means that there is another dimension to the issue. As you will know, in Scots law, you cannot consent to an assault. If there is an assault, whether there is consent, it is against the law. Is there anything that you would like to tell the committee about that? Are we dealing with a wider issue? That is not exclusive to that age group. We have much smaller figures for the 55-plus age group, but it is happening there, too. Do you agree that we have a wider problem?

Yes. It is the central question for lawmakers, which is why I have to think about it. Dr Forbes, you talked about getting this right. That is really important. As I said earlier, unless we have common law flexibility, rather than a statutory offence, the problem is about how to make a distinction between the domestic violence context and what we have been hearing about formal agreements between couples—consent between couples—on something that can cause harm. That will be a really tricky area of law. We have also heard about the English position, where consent in the law has led to fewer prosecutions. The Northern Ireland example is also quite interesting. There is a lot to think about.

Liliana, I know that you will be interested in the legal point around consent. Do you want to add to that?

Detective Superintendent Fisher, do you know whether the Northern Irish legislation deals with the question of consent in the same way as the English legislation?

Good morning. Dr Forbes explained that very well, so I understand the dilemma. There might be some public awareness-raising around a new offence, but you want to get prosecutions and make sure that, if you prosecute, you get convictions, so the content of the law is really important.

We have read in our papers that section 70 of the Domestic Abuse Act 2021 in England and Wales amended section 75A of the Serious Crime Act 2015 to set out a specific offence. It includes a defence for consensual strangulation and states:

“It is a defence ... for A to show that B consented to the strangulation or other act.”

Obviously, that section also has a caveat about recklessness.

Dr Forbes, if consent is not a defence to assault, as was recently confirmed in the case of Kirkup v His Majesty’s Advocate—and, previously, in the case of Smart v HMA—does that seem odd to you, or would it not really work like that in Scotland? If we were to legislate in the same way, what would that mean for the issue of consent?

Yes.

Thank you. I will explore that issue further. Any anecdotal evidence would suggest that it is not even specific to men or women, but I have not seen the data for that. I agree with Fiona Drouet that a deeper issue is the impact of pornography, but I am not certain that it is gender specific; I just do not know. Even though women are agreeing to it, we do not know why they think that it is okay. I am clear that public awareness is really important, and I thank you for the work that you have done on it.

I turn to the question of legislation, which Liam Kerr also asked about. It seems to me, from a cursory look at the English legislation, that it is flawed. If there is a defence of consent, one can see that the cases will fall. I would have thought that it would be more important, initially, to do a lot of high-profile campaigning around the idea that, whether or not someone consents, harm is caused. Putting to one side whether you think that strangulation should be a stand-alone offence, it is currently against the law, but clearly many people do not think that it already is.

I see flaws in the English legislation, and I wonder if you agree. If we were going to create a new offence, before we made any decisions about passing a law, we would have to deal with people who think that it is currently lawful to do it. Anything that you want to say in response is fine.

[Inaudible.]

On a point of order, Presiding Officer. I would have voted yes.

On a point of order, Presiding Officer. I had the same issue. My app would not refresh. I would have voted yes.