Outline of the Scottish Law Commission's discussion paper on rape and other sexual offences

Sexual offences are highly emotive. In recent years the law of rape has been subject to continual criticism, but other issues such as the protection of children, the (de)criminalisation of “morals” offences and the balance between protection and autonomy for vulnerable adults have also been debated. The Scottish Law Commission has now launched an extensive Discussion Paper On Rape and Other Sexual Offences.

Solicitors have an important contribution to make to the reform of this area of law. Clearly the knowledge and experience of those instructed to defend persons accused of sexual offences must be heard – and of course defence agents might well be best placed to comment on where the law can be legitimately changed in the interests of holding abusers to account. But others may also have important contributions to make, particularly those practising in family law and those who advise clients seeking redress either through delictual actions or the Criminal Injuries Compensation Scheme.

This article explains the SLC approach and is intended to encourage practitioners to contribute their knowledge to the reform process. The most pressing and controversial issue – the question of consent – is dealt with last.

Scope of the paper

The SLC paper considers the substantive law of sexual offences and one or two aspects of evidence. The question of prosecution of sexual offences is being explored by the Solicitor General and it is expected that she will report the results of her review of the prosecution of rape and other serious sexual offences to the Executive in the next few months. Nor does the paper explore prostitution or “adult entertainment” – each of these being subject to review by other Scottish Executive expert groups.

The central areas of concern are sexual assaults violating a person’s sexual autonomy (Part 4); laws to protect the vulnerable such as children and persons with a mental disorder (Part 5) and those offences that are not about assault or protection but rather are based on public morality (Part 6).

Protective laws

If the law on consent is recast effectively (see below), it might be thought that there would be no need for special rules in relation to sexual activity with and between children, persons with mental disorder and others vulnerable to exploitation. The SLC is of the view that there is a place for protective laws nonetheless, though views are sought on this.

Child sexual offences legislation is currently complex, with a variety of ages and different laws applying depending on the sex of the complainer and the accused. The SLC recommends that gender distinctions be removed. Special (harsher) considerations should apply where the complainer is very young – should that be below age 12 or 13? Many specific questions are asked in relation to activity involving those under 16 but not in the “very young” category – e.g. should there be a defence of reasonable belief that the person was 16, and what should be done when the accused is also a young person (e.g. between 12 (or 13) and 16, or even older).

It is suggested that if the law on consent is clarified then specific offences involving persons with mental disorder should be repealed. The question would be whether the person did consent, not whether they are in a group deemed incapable of consent. It is also proposed that the criminalisation of sexual activity based on breach of a position of trust be retained.

Moral offences

In what is likely to be the most misinterpreted area, it is suggested that some offences based on certain moral views might be abolished. Sodomy and “homosexual offences” are recommended for the scrapheap; if the problem is underage sex or non-consenting sex then that is where the offence should be located and a modern legal system should not categorise crimes by reference to sexual orientation.

There are arguments that underage and non-consenting incestuous activity could also be moved to these more appropriate categories and “incest” abolished, but the SLC does not make a proposal. Instead it asks on what basis the criminal law can be invoked against consenting incestuous conduct. It is recommended that indecent exposure be more clearly defined and that consenting sado-masochistic sex not be an offence unless, perhaps, there is serious injury.

Evidence and corroboration

Several issues relating to evidence and sexual offences are raised. Perhaps the most significant is the question of whether the requirement of corroboration should be retained. The SLC does not express a view, but sets out some arguments for and against. The main argument against retention of corroboration is that the nature of sexual offences means that there is often only once source of evidence available, the statement of the complainer. The main argument for retention is that it is an essential safeguard against convicting the innocent.

The paper also asks whether corroboration by distress should be put in statutory form (but not whether or not it should be retained), and whether the “Moorov doctrine” where in particular circumstances evidence in one alleged incident can corroborate evidence in another should be retained. Finally it is recommended that any review of “sexual history” evidence be delayed until the effect of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 is clear.

Violating autonomy

The final category of offence consists of sexual acts which are wrong because they involve the violation of the individual’s sexual autonomy. This is clearly distinct from consenting conduct which might violate public decency. It is also distinct from protective offences, since some acts might be criminalised as exploitative even if it might be argued that the particular victim gave some form of consent. 

It is proposed that the term “rape” be retained (rather than, e.g. “serious sexual assault”), and that it be extended to cover non-consenting penetration of the victim’s vagina, anus or mouth. However it would remain the case that the penetration would be limited to that by a penis – penetration with objects etc would not be rape. Both of these would bring Scots law into line with the English Sexual Offences Act 2003.

The SLC also suggests that there should be a category of “sexual assault by penetration”, which would cover penetration by something other than a penis, and a difficult-to-name residual category of something like “sexual touching without consent” (“sexual assault” being over-inclusive, and “molestation” not being in general usage).

The appropriate definition of the mental element of rape and other such offences will depend on the definition of “consent” (considered below). Whatever the model of consent, however, one key question can be posed – should the rule in Jamieson v HMA be retained? There the court held that if a man accused of rape believed that the woman was consenting then, no matter how unreasonable that belief, he could not be said to have committed rape. The SLC is of the view that such a “pure” subjective test cannot stand – some degree of reasonableness in relation to the belief in consent should be established.

Consent: more guidance

Finally we come to the main problem that prompted the review of sexual offences in the first place.

Against a background of criticism of both the conviction rate in rape compared to the number of complaints made to the police and of the treatment of complainers in sexual offences trials, the court in Lord Advocate’s Reference (No 1 of 2001) ruled that the definition of rape was a man having sexual intercourse with a woman without her consent. This appeared to introduce a novel test into Scots law as it had previously been understood that the test was not “without her consent” but “against her will”. What impact, if any, the court thought this would have on the mens rea of rape is not clear but two cases in 2004 ruled that the prosecution had to lead evidence showing the accused’s knowledge that the woman was not consenting. This was widely reported in the media as making it more difficult to secure a conviction than under the old “against her will” test.

The academic literature on models of consent is enormous. Some of it contests the value of the term itself: consenting to something is passive, and sexual activity, it can be argued, should involve terms indicating equality, such as agreement. In any event, the SLC is proposing retention of consent, though it seeks views on the question.

What is meant by consent in Scots law is uncertain – juries are told to apply their everyday understanding of consent (“Consent is consent”: Marr v HMA). Other jurisdictions have given more guidance and it is this route the SLC proposes we follow. Its proposal is that there should be a non-exhaustive list of situations which indicate there was no consent to the sexual activity. These include where the person was subject to violence, where they were unconscious, where they were unlawfully detained, where they were deceived as to the nature of the activity or where supposed consent was given by a third party. For clarity, consent to one activity should not be taken as consent to another, and consent can be withdrawn at any time.

The SLC proposals are all carefully considered and presented and deserve serious and urgent consideration. The discussion paper is available under “publications” at www.scotlawcom.gov.uk and the consultation is open until 1 May.

Brian Dempsey was a member of the advisory group working to Professor Gerry Maher at the SLC

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