New laws to target sex in e-mails
As part of the biggest overhaul of sex offences in Scotland, a new statutory offence of "communicating indecently" will criminalise those who send malicious and unwanted sexually offensive e-mails and texts, as well as other verbal and written messages.
A new bill unveiled yesterday contains proposals for a raft of other new offences, covering areas such as indecent exposure and spiking drinks for the purpose of having sex.
It proposes a crackdown on "sex tourism", with Scottish law-enforcement agencies empowered to investigate and prosecute any adult who has intercourse with a child overseas.
The bill also seeks to overhaul the law on rape. For the first time, the crucial issue of consent will be defined, in a bid to ensure more rapists are brought to justice. Latest figures show the proportion of reported rapes that result in a conviction in Scotland has fallen to just 2.9 per cent.
The planned legislation also widens the definition of rape to include the abuse of males.
The proposals are based on recommendations in a report published last December by the Scottish Law Commission. It had been commissioned in 2004 to examine the law on rape and other sexual offences.
However, ministers have turned down a commission proposal to decriminalise all consenting sex between youngsters aged 13 to 15.
Also rejected was the commission's proposal to decriminalise consensual adult sexual violence. That had raised fears among police and campaigners of creating a legal loophole for rapists and perpetrators of domestic violence.
Of the proposals that were accepted, Kenny MacAskill, the justice secretary, said: "There is widespread agreement that the existing law is unclear and derives from a time with very different attitudes from today."
The bill provided a "once in a generation" opportunity for parliament to reform the law, replacing a complex mix of common and statute law with "a clear legal framework that more accurately reflects the values of modern society".
He went on: "Reform of rape law will not, on its own, improve low conviction rates. Other ongoing 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 offence of indecent communication reflects growing concern that existing laws do not adequately protect people from receiving unwanted and sexually offensive messages via the internet, and in e-mails and mobile-phone texts. Colin Tyre, of the Scottish Law Commission, told The Scotsman: "We wanted to make sure all forms of communication were covered by a single law. Sending offensive e-mails in the workplace has become more common, as have text messages."
He stressed people would only be held to be breaking the law if their actions were motivated by sexual gratification, or to humiliate the recipient.
But one legal expert last night warned that people who sent risqu e-mails at work should be more careful. John Scott, a leading human-rights lawyer, said: "The offence is not defined as such to exclude people in the office who send rude e-mails.
"These people probably won't be the first port of call for the authorities. But if somebody was on the receiving end of an e-mail and took particular offence, they may decide to phone the police.
"People can already lose their jobs for sexual harassment, so this doesn't necessarily raise the stakes too much. But I certainly think people in this situation should be more careful."
The new law was warmly welcomed by Lily Greenan, the manager of Scottish Women's Aid.
She said: "Mobile phones and e-mails have increasingly been used to harass and intimidate both ex-partners and complete strangers.
"This is a positive step, as we need to ensure people on the receiving end are protected."
Anyone found guilty of indecent communication faces a maximum ten-year jail sentence.
Pauline McNeill, Labour's justice spokeswoman, welcomed the proposal to make the use of date-rape drugs a sexual offence. She added: "The proposal to prosecute so-called sex tourists is also a welcome move and one that Labour will back."
That aspect of the bill will empower Scottish prosecutors to pursue anyone who has sex with someone under the age of 16 in a foreign country.
A spokesman for the Association of British Travel Agents also supported the move.
"This new legislation will provide clear guidelines and sends out the unequivocal message that this kind of behaviour is utterly unacceptable and culprits will be severely punished," he said.
Bill Aitken, the Scottish Tories' justice spokesman, threw his support behind the proposed changes to the law on rape. "Clearly, we wish to do everything possible to tidy up the law in this respect and also to ensure that the victims of what are sometimes the most disgraceful and damaging of crimes get justice," he said.
"We do have to recognise, however, that at the end of the day, it will in many cases be a matter for juries, and there is the possibility of evidential difficulties with regard to the definition of consent.
"I do think, however, that what is being proposed is a way forward. The victims of sexual assault are entitled to look to the parliament to do everything possible to prevent these types of crime which frequently leave the victims traumatised."
While Rape Crisis Scotland welcomed many of the measures, its spokeswoman, Sandy Brindley, said they had grave concerns about one part of the legislation.
She said the bill contained provisions that would mean someone who was asleep or unconscious could have consented to sex, explaining: "The notion that someone can give advance consent to sex at 6pm and that this consent should still apply at 1am, when they are incapable of giving meaningful consent, is absurd."
A welcome first step – but when it comes to consenting adults, some things make Scotland look puritanical
ONE of the most recent surveys to delve into the sex lives of Scots painted a portrait of a broadminded people accepting of preferences and practices which might differ from their own and willing to be adventurous in their own relationships.
The study found that 90 per cent of Scots said they were open and non-judgmental, with most engaging in sexual activity on average 29 times a month. Twenty-two per cent of people asked had had sex on a beach, while one respondent even admitted to having sex in a wheelie bin.
So far, so liberal, but the survey also found more than 80 per cent had had unprotected sex more than once, and a quarter had been taken advantage of while under the influence of drink or drugs. Almost a third had experienced an unwanted pregnancy.
Meanwhile, Scotland maintains its dismal record on sexual health and teenage pregnancy, which is among the worst in western Europe. Just last month, it emerged that a record number of abortions were carried out in Scotland last year, with rates highest among 16 to 24-year-olds. Chlamydia rates among young men are also rising.
While we have come a long way from the repression of the dancehall days, when sex was still taboo, we remain a nation still ill at ease with sex and sexuality. We may teach our children about it in a way we could never have imagined in the 1950s, but we leave it too late and we keep it too short.
And so it was a delicate task for the Scottish Government to craft its new bill on sex crimes, which was unveiled yesterday. The legislation is long overdue, especially when it comes to toughening the laws on rape and improving the country's appalling conviction record.
But there were other areas which needed to be addressed. The internet, the boom in cheap travel, the creation of new drinks, new drugs, the explosion in mobile phone usage, have all opened up areas of concern to be addressed.
So the Scottish sex tourists trawling foreign countries for victims cannot now consider themselves safe from Scots law- enforcement; nor can the person who thinks it a wheeze to send sexually harassing and/or explicit messages by text or e-mail. Nor can the creep in the pub, spiking the drinks of unwitting women.
Where it gets trickier is when we get to consenting adults.
The new legislation rejected a proposal to decriminalise consensual adult sexual violence. It's not everybody's cup of tea, but when both parties are willing, where's the harm? For the government, it was the fear that such a move might offer some form of legal escape to rapists and those who commit domestic violence.
It's a powerful argument, but a misguided one. These are instances in which the state simply should not meddle.
Remember the man caught last year trying to have sex with his bicycle? He was in his hostel room in Ayr, the door was locked, but – surprised by two cleaners – he was hauled before the courts and sentenced to three years' probation.
The story went around the world, but for every person mocking the individual, many more mocked the Scottish justice system for branding him a criminal.
It smacked of our old puritanical ways, of a country terrified of sexual desire in whatever form. That does us a disservice because the legislation laid out yesterday is a measured, forward-thinking response to a topic that needs to be discussed, no matter how much it troubles us still.
A CRACKDOWN on this practice involving children is also proposed.
Anyone from Scotland who travels abroad and has sex with someone under the age of 16 can currently only be prosecuted on their return if the intercourse was also illegal in the foreign country.
For example, a Scot who travels to Madrid and has sex with a 13-year-old could not be prosecuted because the age of consent in Spain is 13. The legislation would make it an offence under Scots law for anyone to commit a sex crime against someone under 18 abroad (it is 18 instead of 16 because offences of child prostitution and pornography are included).
The move brings Scots law into line with a European convention to protect children from sex abuse.
THE Scottish Government has rejected a proposal to decriminalise sex between children aged 13 and 15.
Kenny MacAskill, the justice secretary, was persuaded that decriminalising under-age sex would send out the wrong message when the Scottish Government was trying to reduce teenage pregnancies and abortions. Nicola Sturgeon, the health secretary, and Alex Salmond, the First Minister, had serious concerns over the decriminalisation proposal. However, the practice of only prosecuting the male will end, with both boys and girls now having to face the legal consequences.
It is highly unlikely offenders will end up in criminal courts. Officials have signalled that the practice of dealing with cases through the Children's Panel will continue.
FOR the first time, the question of consent in rape cases will be
defined in law.
The Crown must prove that the victim of rape did not consent to sex. It is left to juries to decide what actually constitutes consent.
That led to concern that juries were bringing their own ideas and prejudices about women to the courtroom.
Many people believe such attitudes, mixed with a lack of clarity over what constitutes rape in law, are contributing to the low rape conviction rate.
Under the new bill, consent is defined as "free agreement" between the different parties.
To aid juries, a list of scenarios where consent cannot be said to have been given is also provided.
THE bill defines the new offence of indecent communication as occurring when a person intentionally delivers a sexual message to another person.
The offence requires that the person sends the communication to obtain sexual gratification, or to humiliate, distress or alarm the recipient. The communication can be a word in someone's ear, a page from a pornographic magazine, or an e-mail or text.
Someone who sends an offensive e-mail to a group of colleagues, friends and other people could be breaking this new law.
However, the Crown would have to prove that the purpose of sending the e-mail had been malicious, or that the sender had done it for a sexual "thrill".
THE offence of public indecency, which can include "flashing", streaking and urinating in public, already exists. But the government explicitly wants to criminalise anyone who intentionally exposes their genitals in a sexual manner to another person with the intention of causing alarm or distress, or being "reckless" as to whether alarm or distress may be caused.
The new offence also criminalises sexual exposure in someone's home. The aim is to make it clear such behaviour is a sex crime completely separate to someone causing offence by, for example, sunbathing naked in a public park. The Scottish Law Commission, which first proposed the move, reasoned that indecent exposure was in many ways similar to a sexual assault.
AN ADULT who engages in sexual activity of any kind with a child will be committing an offence.
Under the bill, children aged under 13 are regarded as being too young to consent to sexual activity. It is therefore not a defence for anyone to argue that the child consented to that activity.
It will also be an offence for an adult to engage in sexual activity with a child aged between 13 and 15.
The penalties for offences with older children are lower than those involving a young child.
The government is not seeking to criminalise touching, kissing and sexual conversations between children aged 13 to 15, which the bill describes as something that is considered "a normal part of growing up for a teenager".
MINISTERS want to toughen existing laws against so-called "date rape", or spiking someone's drink for a sexual purpose.
The bill says someone who intentionally administers a substance to another person without them knowing, in order to stupefy or overpower that person so sexual activity can take place, will be committing a new offence, which will carry a maximum five-year prison sentence.
Currently, the law only protects women who are unwittingly "stupefied" for the purposes of sexual activity, but this will be broadened to include men.
Last year, The Scotsman revealed about two women per week were contacting a national support group to say they had been drug-raped.
THE bill emphasises the need for the law to apply equally to men and women.
That applies to the offence of rape, as well as other offences including administering a substance for a sexual purpose.
And, therefore, the statutory definition of rape will cover the penetration of a man or a woman, without the victim's consent and without any reasonable belief that the victim had given their sexual consent.
The government has agreed with the Scottish Law Commission's view on the need to widen the definition to include male rape.
"We see no reason why rape should continue to be defined so narrowly," the commission said in its report published last year.