A Bill has been introduced to the Scottish Parliament to reform the law on rape and sexual offences.
Scotland has a once in a generation opportunity to clarify and strengthen the law on rape and sexual offences, Kenny MacAskill, the Justice Secretary, said today.
The Sexual Offences (Scotland) Bill is based on proposals from the Scottish Law Commission.
For the first time it defines ‘consent’ in law and replaces the common-law offence of rape with a broader statutory offence (including male rape). It introduces new statutory offences dealing with sexual exposure, particularly in non-public places, the ‘spiking’ of drinks for sexual purposes and coercive sexual conduct, including sexually offensive emails or texts.
The legislation includes ‘protective offences’ to guard against sexual activity with those whose capacity to consent is either entirely absent or not fully formed either due to age or a mental disorder.
The Bill is broadly in line with the main Commission proposals but for two provisions: the recommendation to decriminalise all consensual sexual activity between 13-15 year olds; and the recommendation to decriminalise consensual adult sexual violence.
For the first time, the Bill will enable Scottish law enforcement agencies to pursue and prosecute anyone from Scotland who commits a sex crime under Scots law against someone under-18 abroad (including child pornography and child prostitution offences) regardless of the laws applied in that country.
Mr MacAskill said:
“I’m grateful to the Scottish Law Commission for their detailed, considered work and to all those who responded to the consultation. There is widespread agreement that the existing law is unclear and derives from time with very different attitudes from today.
“This is a once in a generation opportunity for Parliament to review, reform and clarify the complex mix of common law and statute with a clear legal framework that more accurately reflects the values of modern society.
“Of course, reform of rape law will not, on its own, improve low conviction rates. Other on-going work is vital – improving investigation and prosecution of rape and sexual assault, reviewing law of evidence and challenging public attitudes to rape and sexual assault.
“However this Bill will, together with this other work, contribute to improving the criminal justice system’s response to crimes of rape and sexual assault.
“The need for reform is agreed but shape of that – in law and practice – is matter of debate and will continue to be so as Parliament considers it.
“I don’t doubt the sincerity of those expressing divergent views on difficult, sensitive issues and who will continue to hold deeply-held opinions. But whatever decisions we take, the rights of victims, protection of society’s most vulnerable and the interests of justice must remain our focus.”
As well as a broader definition of rape, the Bill creates a range of statutory sexual offences and a definition of consent based on “free agreement” – specifying range of illustrative scenarios where consent is not given.
It also includes ‘protective offences’ and will continue to treat sexual intercourse with or between under-16s as unlawful.
Commenting on this part of the Bill, Mr MacAskill added:
“The Commission made a clear distinction between non-consensual or adult predatory sexual behaviour and consensual sexual activity between older children and we have recognised that distinction.
“But having considered the proposal to decriminalise sexual intercourse between 13-15 year olds, and the various consultation responses, we have decided against such a change. The law must continue to make clear that society does not encourage sex between children, as it can be cause for concern for a child’s welfare, even where apparently consensual.
“Our sexual health strategy places particular emphasis on respectful relationships and encouraging young people to delay engaging in sexual intercourse, which can lead to unintended pregnancy, as well as sexually transmitted infections.
“There are also concerns that decriminalising sexual intercourse between children may make it more difficult to resist peer pressure and we have noted particularly the concerns of senior police and Rape Crisis Scotland.
“We also decided not to decriminalise consensual sexual violence as we agree that by weakening the law Parliament could open a legal loophole for rapists and perpetrators of domestic violence. It’s also counter to the thrust of the Bill – to protect people from sex crimes and exploitation.”
It is currently an offence under Scots law to commit a sex offence against a child abroad only where that is also an offence under the laws of the country in question. The Bill removes the requirement for ‘dual criminality’ in respect of UK nationals and will thereby bring Scots law into line with the requirements of the Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse.
In 2004, the Scottish Law Commission was commissioned by the then Justice Minister “to examine the law relating to rape and other sexual offences and the evidential requirements for proving such offences and to make recommendations for reform.” The SLC published a discussion paper, seeking views on their emerging findings, in January 2006 and its final report and recommendations, including a draft Bill, were published in on December 19, 2007.
A public consultation on the Commission’s final report and draft Bill was also published on December 19. More than 1,200 responses were received, the vast majority of which were from individuals.
The Bill is part of a range of measures being taken to improve how the criminal justice system responds to rape and other sex offences and to challenge unacceptable attitudes to rape and what constitutes consent.
The Justice Secretary has asked the Scottish Law Commission to review aspects of criminal procedure including admissibility of evidence of bad character or of previous convictions and similar fact evidence and the Moorov doctrine (that allows two or more victims whose evidence is otherwise uncorroborated to provide mutual corroboration where there is a close connection in the time, character and circumstances of the charges).
The Crown Office & Procurator Fiscal Service is currently implementing the 50 recommendations from its comprehensive review of the handling of the investigation and prosecution of rape and other serious sexual offences.
The Scottish Government has provided £200,000 to Rape Crisis Scotland to develop a campaign to help change public attitudes to rape.
Source-Scottish Parliament