Margaret Curran: Time to end the 'get out' clause for rapists

Published on Tuesday 26 May 2009 21:27

SCOTLAND has one of the lowest conviction rates for rape in Europe. Research suggests that just 3 per cent of rapes recorded by the police result in a conviction. This statistic is truly appalling and urgently needs to change.

The public – quite rightly – see sexual assault as one of the most serious crimes and it's time that convictions rates increased. A message needs to be sent clearly to perpetrators that if you assault someone you will be prosecuted and if you are guilty you will be convicted.

Legislation currently going through the Scottish Parliament provides us with a once-in-a-generation chance to improve the current unacceptable record on convictions.

The Sexual Offences Bill is being promoted with the best of intentions, but campaigners and women's groups are growing increasingly concerned that this legislation needs amendment to make the difference needed.

The bill as it stands contains a loophole that could allow rapists to get away with serious sex crimes if their victims are drunk and incapable. The problem lies in the wording of section 10.2a of the bill, which currently states that sexual consent cannot be given "where the only indication or expression of consent occurs when the victim is incapable of agreeing to intercourse because of drink or drugs".

Organisations like Rape Crisis Scotland which speak up for victims of sex offences fear that this could enable an attacker to escape punishment by falsely claiming that consent had been given in advance.

Sandy Brindley of Rape Crisis Scotland (RCS) says the organisation is aware that some men are going to bars and clubs and deliberately targeting women who are very drunk. She says RCS has "grave concerns that the wording of the legislation provides a real loophole in encouraging men accused of rape in these circumstances to say that the woman gave consent before she became incapable". With less than 3 per cent of rapes reported to the police leading to a conviction, Ms Brindley says: "The last thing we need is to make it harder for women who have been raped to obtain justice."

This clause, if passed, would force the Crown Office to prove that prior consent had not been given by the victim. In practice, it could make it much harder to obtain a conviction in circumstances where the complainer has been drinking heavily. I believe the law must provide protection to women who are targeted by predatory men even when they are very drunk. When a woman is too drunk to say "Yes" or "No" then there can be no excuse for anyone taking advantage of her sexually.

An indication of willingness to have sex at 7pm should not justify rape at midnight when the woman is so drunk she is incapable of giving any meaningful consent.

That's why I have tabled an amendment to remove any notion of prior consent. Every woman should have the right to say "No" at any time, and it is important that the law reflects this unequivocally. The amendment if passed will close that particular loophole and I hope offer women better protection.

I am pleased to have the support of Lily Greenan, manager of Scottish Women's Aid. She makes the point that just because a woman consents once, does not mean that consent can be assumed at a later stage – and describes the proposal to change the law on consent as a "retrograde step that could put women at risk".

She encourages MSPs to lend their support, and vote for my amendment when the bill comes before parliament, in June, for its third and final reading.

Tomorrow, I will be hosting an event in the Scottish Parliament at which Scottish Women's Aid, and other campaigning organisations, will join me in making the strongest possible case for change. These are people who work with victims of sexual violence every day and they deserve to be listened to. Scotland's low conviction rate for rape is unacceptable and politicians need to listen to those with the most experience dealing with issues like this.

Throughout Scotland there is real concern at such a low conviction rate for such an appalling crime and support for determined action to tackle it. Undoubtedly, part of the answer is to change how we treat victims and improve again how they are treated in court.

Labour can be proud of its record in making court better for victims of sexual assault. The introduction of the Vulnerable Witnesses Act was a step forward, as was the legislation that stopped accused persons from personally cross examining rape victims.

That was the right way forward. Putting the rights of victims first and ensuring that witnesses including victims could give their best evidence showed that the parliament was not only taking the matter seriously but acting too.

The Sexual Offences Bill gives us the chance to make a real difference, but the legislation as it currently stands will not take us where we need to go.

We need to close this serious loophole and ensure that everything is done that can be done to make the law as robust as possible. Protecting vulnerable women from sexual attack should not be seen as a party political issue and I hope that my amendment will win support from every corner of the Scottish Parliament.

&#149 Margaret Curran is MSP for Baillieston