| Welcome to this new series of short articles on current issues in Scottish criminal justice. | ||
The series aims to both provoke and inform public debate. Selected links for further reading, information about referencing and using these articles, a disclaimer and a note of forthcoming and previous publications can be found below the text |
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| Summary | ||
This article outlines some of the proposals made by the Scottish Law Commission in its Discussion Paper on Rape and Other Sexual Offences. One of the duties of the Commission is "the simplification and modernisation of the law". This Discussion Paper constitutes the first ever systematic review of the law relating to sexual offences and seeks to allay concerns about the present state of the law. PDF of this article. |
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| Author | ||
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Fiona Southward, Legal Assistant, Scottish Law Commission, 140 Causewayside, Edinburgh, EH9 1PR Contact: Fiona Southward. |
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| Article | ||
Introduction Sexual offences are emotive and Scotland's law on sexual offences has been the subject of criticism on a number of counts for some time (1). Following two widely-reported High Court cases in 2004 public and professional concern resulted in a request from the Scottish Ministers to the Scottish Law Commission to examine the law on rape and other sexual offences and the evidential requirements for their proof (2). The current law had been criticised for its lack of clarity, its impact on victims' experiences of the criminal justice process, its failure to protect both sexes equally and its distinction between heterosexual and homosexual offences (3). Thus in the course of its review the SLC has been guided by principles of clarity, equality and fairness. It has taken an approach that is premised on the need for law to ensure respect for sexual autonomy, that is a person's ability to choose freely to engage in sexual activity. This requires not only that the law protects a person whose sexual autonomy has been infringed because she has been made to participate in a sexual activity in which she has not freely chosen to be involved. It also requires that the law does not prohibit sexual activity in which a person has freely chosen to engage except in exceptional circumstances that evince sufficient justification for overriding consent. The Commission's proposals can roughly be split into three types. The first involves protecting persons who do not consent to sexual activity, and the second involves offences where the law should or should not intervene irrespective of consent. The last type of proposal involves matters of evidence relating to such offences. The main topics covered in the Commission's examination of evidence are corroboration and sexual history evidence. However, although evidential issues are related to the definition of sexual offences, this article will focus on the other two types of proposal that the Commission have made. Sexual Offences Sexual offences are by their nature predominantly committed in private. This has made them among the most difficult offences to prove, particularly where it is one party's word against another about whether consent was given. Until 2002 the defining element of rape was that sexual intercourse took place by force and against the will of the victim. In the landmark decision of the Lord Advocates Reference (No 1 of 2001) the High Court of Justiciary redefined rape as sexual intercourse between a man and a woman where the woman did not consent. However in making this ruling the court did not give any indication of how 'consent' was to be understood, or how knowledge of lack of consent on the part of the accused was to be proved in the absence of the use of force. Some of these issues were considered in the high profile cases of McKearney v HM Advocate and Cinci v HM Advocate, which gave rise to the Commission's review. The issue of consent is central to both rape and other sexual assaults, yet Scots law provides no definition of this concept. Instead juries are told to give the term its normal meaning. This means that it is not a matter of legal definition whether rape has occurred where the victim is threatened with violence, is unconscious or is plied with drugs. Instead a jury must decide whether they see this as rape under their understanding of what "consent" means. This approach to consent presumes that there is a generally agreed understanding of when someone is consenting to sex and when they are not. However, the Commission points out that men and women tend to adopt different perspectives of sexual interaction. For example, what for a woman is simply friendly behaviour can be interpreted by men as sexual flirtation. Additionally, failing to provide a definition of consent can allow an accused to exploit the vagueness and uncertainty this creates by persuading a jury that, although the complainer at trial says she did not consent, her behaviour at the time, for example being drunk or wearing revealing clothing, suggested otherwise. This can appeal to inappropriate social perspectives of the victim and the victim's role in the offence (4), drawing attention away from the conduct of the accused. The Scottish Law Commission points to approaches adopted by English law and in other legal systems such as Australia, Canada and the USA as the best way to combat these problems. It suggests a two-pronged approach. First, the law should provide a general definition of consent, such as "free agreement". Secondly, there should be a list of factual situations which indicate when consent is not present. This would include, for example, whether the victim is unconscious or asleep, had lost the capacity to consent after taking drink or drugs, or where violence or threats are used against the victim or a third person. This list, it is hoped, would provide better guidance to juries by outlining clearly what standards of sexual behaviour the law deems acceptable. The Commission has also made proposals on categories of sexual offences. It proposes the extension of the offence of rape to cover penile penetration of the vagina, anus or mouth of another person without that person's consent. This would extend the offence to include male victims but would still recognise rape as a particular form of wrong that can only be committed by men. Penetration of the genitalia or anus by anything other than a penis would be a separate gender-neutral offence and there would also be a separate offence of coercing sexual conduct to cover a person who forces another to engage in a sexual act. The Commission also suggests an offence of touching or having contact with a person in a sexual manner without their consent. Whether the act was sexual or not would be determined by what a reasonable person would regard as sexual. The Commission also queries how we are to judge the accused's state of mind in relation to consent. Should the law require that the accused had reasonable grounds for his belief that the other person was consenting? Or, is it enough that the accused honestly believed that the person was consenting, even though the basis for that belief stemmed from some unreasonable idea, such as that when a woman says no she means yes? Is it possible to compromise between both of these tests? All these issues must be resolved for the law to give effective protection against non-consensual sexual encounters. However, the law must also adopt a protective role even where consent can exist. The protective role of the law The most obvious set of cases in which there is arguably a clear need for legal intervention regardless of the existence of consent is cases involving people who are vulnerable to sexual exploitation due to their limited capacity to give that consent, such as children or persons with a mental disorder. In relation to children existing law is complex and incoherent. Some offences apply only in respect of male offenders and female victims(5); others only in respect of male offenders and male victims(6). The existence of 'mop up' offences such as lewd, indecent and libidinous conduct is highly questionable given its vagueness and uncertain scope. There are gaps in relation to sexual acts committed by women with boys aged 14 or over. In addition, defences such as the mistake of age defence appear to lack any obvious principle, being available to only a limited range of persons and only for cases involving intercourse(7). The Commission's proposals therefore attempt to construct a more coherent category of offences that is more comprehensive in its coverage. They include the abolition of the crime of lewd, indecent and libidinous practices and the creation of statutory offences such as touching a child in a sexual manner, engaging in sexual activity in the presence of a child and causing a child to watch a sexual act. The Commission also proposes strict liability offences for sexual conduct with young children (i.e. children under 12 or 13 – the Commission questions where the threshold should lie) for which no defence of consent or mistaken belief as to age could apply. In relation to children who are over 12 (or 13) but under 16 the Commission proposes that there should continue to be an offence prohibiting consensual sexual conduct with such persons for which a defence of reasonable mistake as to age would be available. The Paper considers the difficult question of sexual conduct between such older children. It concludes that that exploitative offences can also be committed by children and that there is therefore a role for legal regulation of such activity. However the Commission highlights that persons under 16 are, except in exceptional circumstances, dealt with by the children's hearing system and prosecution of such children is therefore rare(8). The Commission also makes provision for abuses of trust in a familial setting or in relation to persons under 18 or persons with a mental disorder. Additionally the Commission suggests that if its proposals regarding offences involving a lack of consent are adopted then there would be no need for specific offences relating to sexual activity with mentally disordered persons. The question would simply be whether the person with the mental disorder consented rather than whether mentally disordered persons as a group are capable of consent. In line with the Commission's foundational principle of respect for sexual autonomy the Discussion Paper also carefully considers the abolition of certain offences where the interests protected are disproportionate to the need for the type of legal intervention currently in existence. Thus it proposes the abolition of homosexual offences, whose existence are both archaic and discriminatory. Consultation The Commission hopes to put together a robust set of recommendations that provide increased clarity for both juries and members of the public, whilst providing comprehensive protection to potential victims of sexual abuse. The Commission's consultation period officially ends on May 1st. In the meantime it welcomes all views and comments on any of its proposals. Responses can be sent by mail or email and response forms are available here. |
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| Footnotes | ||
(1) Scolag Editorial June 2004: Sexual Offences: MSPs should act if they got the nerve.
(2) There is also a separate review of prosecution policy and practice being undertaken by the Crown Office and Procurator Fiscal Service.
(3)
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| Links | ||
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Draft Criminal Code for Scotland with commentary Home Office Sexual Offences site Setting the Boundaries - Home Office Consultation on Rape and Other sexual offences (July 2000) A gap or a Chasm? Attrition in reported rape cases – Home Office Research Study 293 (February 2005) Victorian Law Commission publications page -see sexual offences reports Project 107 Sexual Offences Report - South African Law Commission (December 2002) | ||
| Use and Copyright | ||
You are free to copy and distribute this text or extracts from it for all purposes (except publication in a work sold for commercial purposes) on condition that you identify the author and name CjScotland as the source. Please apply directly to the author for permission to publish in a work sold for commercial purposes. Please include the following information in a reference when citing or using this article.
Date of publication on this web site: 26.4.06. The URL for this version is: http://www.cjscotland.org.uk/index.php/articles/sexual offences/ |
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